Adamski v Betty (No 2)

[2007] NSWLEC 330

Land and Environment Court

of New South Wales

CITATION:	Adamski v Betty (No 2) [2007] NSWLEC 330
PARTIES:	APPLICANTS Ceasar & Jolanta Adamski RESPONDENT Dorothy Betty
FILE NUMBER(S):	20087 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Application to re-open
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	VAW (Kurri Kurri) Pty Limited v Scientific Committee [2003] 128 LGERA 419; Autodesk Inc & Anor v Dyason & Ors [1993] 176 CLR 300; Red Sea Investments Pty Limited v Ku-ring-gai Council (No 2) [2005] NSWLEC 490
DATES OF HEARING:	19 April 2007
EX TEMPORE JUDGMENT DATE:	19 April 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr J Johnson, solicitor Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

19 April 2007

20087 of 2007 Ceasar & Jolanta Adamski v Dorothy Betty

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER MOORE: In this matter, on Tuesday 10 April, Acting Commissioner Fakes and I attended the site upon which the Bunya Pine (Araucaria bidwillii) is located at 27 Braeside Street, Wahroonga and the adjoining property owned by Mr and Mrs Adamski at 31 Braeside Street. During the course of that day, we gave an extemporaneous decision concerning a Silky Oak (Grevillia robusta) (a tree which does not detain us on this occasion) and the Bunya Pine.

2 We reached a number of conclusions on that occasion – the principal one of which was that removal of the Bunya Pine was not warranted but that an annual cone removal activity at a period between mid-October and mid-December should be undertaken each year.

3 We then proposed that the orders of the Court would specify both the qualifications of the persons undertaking the cone removal and specified that an appropriately qualified person could be retained by Mr and Mrs Adamski (but at cost to Mrs Betty) to supervise that activity and ensure that they were satisfied that the activity to remove the cones from the Bunya Pine had been carried out competently and satisfactorily.

4 On 11 April Mr Adamski, wrote to the Registrar of the Court indicating what he described as his and his wife’s uncertainty that a number of safety issues might not have been addressed during the course of that hearing. The position that subsequently arose when that letter was referred to me for my consideration was that there was clearly an implied application to reopen the proceedings to deal with the four matters contained in Mr Adamski’s letter.

5 In the normal course of events, reopening of proceedings is rarely permitted and, except for correcting clerical and similar matters or vitiating orders which are obtained by fraud, proceedings are virtually never reopened when the formal orders have been perfected.

6 In this case, the formal orders have not been perfected following the decision on 10 April and a window does exist for an application, ordinarily made in a more formal fashion, to reopen proceedings.

7 We have heard submissions on both reopening and merits of all the matters, as part of a bundled up set of proceedings, so that if we were minded to permit reopening on any one of the four matters that are contained in Mr Adamski’s letter we would have had the submissions on them and be able to deal with them on the merits.

8 Mr Johnson, solicitor for the respondent, has outlined to us why we should not reopen and has given an outline of submissions – principally relying on a decision in Class 4 proceedings in VAW (Kurri Kurri) Pty Limited v Scientific Committee [2003] 128 LGERA 419.

9 However, these proceedings are Class 2 proceedings of the Court where a greater degree of informality is permitted and there is no requirement to adhere to the laws of evidence.

10 Requirements for procedural fairness and natural justice still apply but a more general consideration of the discretion to reopen in circumstances such as these would arise from consideration of the decision of the High Court in Autodesk Inc & Anor v Dyason & Ors [1993] 176 CLR 300. I do not propose to set out the relevant passages from the decision of Brennan J at p 308 and from Dean J later in the court’s decision. They are extracted in a decision I gave in Red Sea Investments Pty Limited v Ku-ring-gai Council (No 2) [2005] NSWLEC 490 at paras 33 and 34.

11 Whilst there is undoubtedly a public interest in maintaining the finality of litigation, we are satisfied that, in order to complete these matters in a jurisdiction which is new in the Court’s processes (where there is a clear desire of the legislature for speed and informality in the proceedings) and where, as in this case, there is also a significant expectation that applicants (and, in many cases, respondents) will be self-represented, that it would be appropriate to permit the matter to be reopened with respect to three of the matters that are contained in Mr Adamski’s letter.

12 They are, in shorthand:

• The first of the matters raised by Mr Adamski being the adequacy of the cone removal exercises conducted in December 2006 and February 2007;
• The second of the matters raised by Mr Adamski being what might be described as the nominated time for the annual cone removal exercise; and
• The fourth of the matters raised by Mr Adamski being the dropping of foliage onto his property.

13 The third matter set out in Mr Adamski’s letter sought to canvass what he describes as tree growth under the heading of “Potential damage to his house’s footings and potential damage to the boundary fence and expansion of the tree trunk into his land with its consequences.”

14 We are satisfied that the provisions of s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 limits the Court to considering and making orders under circumstances where the tree has caused, is causing or is likely in the near future to cause damage to the applicant’s property.

15 We are satisfied (and indeed Mr Adamski has conceded today) that there is no evidence that the Bunya Pine is likely in the near future to cause damage to his property in this respect. As a consequence, we are satisfied that we have no jurisdiction to deal with that matter even if we were minded to grant leave to reopen with respect to it.

16 We now turn to deal with the three remaining matters.

17 Two of them are able to be dealt with in comparatively short compass. They are the question of the timing of the annual cone removal and the question of dealing with Bunya Pine foliage falling on the Adamski property.

18 An arborist retained by Mr Adamski, a Mr Laverty, provided a report which recommended nine-monthly cone removal exercises but provided no evidence of a factual or scientific basis upon which such recommendation was founded.

19 Attached to the affidavit of Dr Betty, the son of the respondent in these proceedings, is an article adverted to in our principal decision in this matter which is Adamski v Betty [2007] NSWLEC 200 by Mr John Hough. The article appended to Dr Betty’s affidavit at p 22 of the affidavit and p 9 of the article notes as follows:

While some cones are produced between December and March every year they are usually produced in abundance every third year.

20 It is upon that evidence that the conclusion was drawn for the annual de-coning period provided for in our orders foreshadowed on 10 April.

21 There is no arboricultural evidence that would cause us to conclude that there should be any doubt about that period.

22 To the contrary, the empirical evidence, in the schedule of incidents forming part of Mr Adamski’s affidavit, notes that there were cone falls of some significance in the turn of the year period 2004-2005, 2005-2006 and 2006-2007. The only aberrant cone fall noted outside those periods is a single cone fall noted by Mr Adamski as occurring in September 2006.

23 We are satisfied that there is no evidentiary basis that would cause us to revisit the time period for cone removal that was determined on 10 April.

24 Therefore with respect to that matter we grant leave to reopen and refuse the application to amend.

25 The fourth matter in Mr Adamski’s letter, the third matter warranting some more detailed consideration is the question of the Bunya Pine foliage.

26 The foliage is described by Mr Adamski in his letter as being barbed wire-like foliage.

27 There is no doubt from what we saw on site, both on the tree and on the ground, that the foliage is not typical soft leafy detritus.

28 However, as was put to Mr Adamski during the course of this morning’s proceedings we consider that it is appropriate for persons living in a leafy urban environment to accept the necessity to carry out a degree of neighbourly housekeeping with respect to the ordinary impacts that might be expected to arise from trees in such an environment.

29 Whilst Ku-ring-gai Council’s Responsible Tree Policy might have the effect of discouraging the planting of future Bunya Pines, the pine is there; has been there for some forty years or so; and is a part of the present living, leafy environment in which Mr and Mrs Adamski have chosen to construct their residence.

30 Mr Adamski described, this morning, the question of fears about the foliage.

31 We reject the concept of fears about the foliage for two reasons.

32 The first is the general proposition about neighbourly housekeeping to which we have adverted.

33 The second is that, as has been discussed by this Court in a number of these matters, for fears to be ones that the Court is obliged to respond to, even if the fear is honestly and reasonably held, we must be satisfied that there is some probability that the fear will be realised and that the consequences of that realisation are sufficiently serious to warrant intervention of the Court.

34 We are not satisfied that the fears of the Bunya Pine foliage satisfy that test, as well as their falling failing to be any exception to the normal environmental neighbourliness to which we have referred.

35 The final matter that Mr Adamski raises, effectively, is the question of the adequacy or otherwise of the December and February de-coning exercises.

36 It is clear from the affidavit of Mr Hill, the arborist who has supervised these de-coning exercises on behalf of the respondent, that there were serious deficiencies in the December 2006 de-coning. That was evidenced, as cited in our earlier decision, by his production to us of a photograph showing a significant number of very large cones that were removed at the second stage of that de-coning exercise.

37 We determined, on 10 April, that for future de-coning exercises, in order that Mr and Mrs Adamski should have confidence in the process and that it was being carried out on a proper risk management and risk removal basis, they should be entitled to appoint, at Mrs Betty’s expense, an arborist to supervise their interests in that cone removal.

38 Although Mr Johnson resists such a process being applied retrospectively to the December and February cone removal exercises recently undertaken, we are satisfied that the level of cones disclosed as having been removed in the second phase of that, together with the fact that we, ourselves, observed at least one cone of an indeterminate size being readily able to be identified in the foliage of the tree, means that it would be appropriate to permit Mr and Mrs Adamski to engage what might be regarded as a retrospective arborist’s validation of these recent cone removal exercises.

39 The orders of the Court therefore that were proposed to be issued arising out of 10 April decision will be further extended to permit Mr and Mrs Adamski to engage a level 5 AQF qualified arborist (qualified in arboriculture) to undertake what amounts to a retrospective audit of the 2006-2007 cone removal application.

40 If that examination shows that any further cones are required to be removed the orders will provide that they shall be removed within twenty-eight days of a report by that arborist being provided to the respondent.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court