Adamski v Betty (No 3)

[2007] NSWLEC 717

Land and Environment Court

of New South Wales

CITATION:	Adamski v Betty (No 3) [2007] NSWLEC 717
PARTIES:	APPLICANT Caesar Adamski RESPONDENT Dorothy Betty
FILE NUMBER(S):	20087 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Practice and Procedure - Trees (Neighbours) - Neighbour Application :- Correction of orders
LEGISLATION CITED:	Land and Environment Court Rules 1996 Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Adamski v Betty (No 2) 2007 NSWLEC 330
DATES OF HEARING:	19 October 2007
EX TEMPORE JUDGMENT DATE:	19 October 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Ms Betty (daughter)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

19 October 2007

20087 of 2007 Caesar Adamski v Dorothy Betty

JUDGMENT

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

1 COMMISSIONERS: This is a matter we are dealing with pursuant to Pt 15 r 9 of the Land and Environment Court Rules 1996, following the inadvertent omission from the orders of the Court made and filed on 24 April 2007 of a requirement reflecting para 40 of our judgment in Adamski v Betty (No 2) 2007 NSWLEC 330. The omitted order would have required, following the inspection of the Bunya Pine provided for in order 19 of the Orders of 24 April, the automatic removal following the inspection, pursuant to that order, of any cones of greater than 100 mm in any dimension .

2 Mr Adamski now tenders a report by Mr M Kokot, an arborist who undertook a visual but not climbing inspection of the Bunya Pine. This report identifies one cone which he has described in his report as not exceeding 100 mm in diameter.

3 In this regard, it is relevant to note that Order 9 of the orders of 24 April envisage and require future removal of all cones that are in excess of 100 mm in any dimension. It is perhaps unfortunate that Mr Kokot’s report did not make an estimate of the size of the cone in its longitudinal dimension.

4 In any event, although that report is dated 17 May, Mr Adamski’s absence overseas for a lengthy period has meant that the matter has not come back before us until today.

5 We have had information from the bar table by Ms Betty, on behalf of her mother, that there is to be a cone removal exercise undertaken in compliance with the Orders of 24 April, starting with Order 7, requiring an annual cone removal exercise. The 2007 cone removal exercise is to be undertaken on 5 November.

6 If we were persuaded that the particular cone that was identified by Mr Kokot required to be removed, we would be obliged, as a matter of fairness, to provide a reasonable time for the owner of the tree to arrange for the removal of that cone.

7 It would have been, absent some recent past history of a significant number of cones falling from the tree (and there is no such evidence), unreasonable for us to allow anything less than fourteen (and more usually twenty-eight) days for such a removal to take place. As the annual cone removal exercise is to be undertaken at a date that is within those periods of time, we do not consider that there would be any utility in us varying any of the existing Orders.

8 We note two things in this regard:

• The first is that the annual cone removal exercise Orders continue on an ongoing basis; and
• The second is that the Orders 19, 20, 21 and 22, which are the ones that would have involved and responded to Mr Kokot’s report, are now in effect extinguished by the fact that we have reached the first of the subsequent annual de-coning periods.

9 Therefore we do not propose to make any further order, there being no utility in correcting the order to include an order reflecting para 40 of the decision of 19 April.

10 We make this observation, however. If, contrary to the scientific evidence that we were given on the earlier occasions that it was likely that any cone fall from the tree would take place at a particular time of the year which was able to be anticipated by and prevented by the annual cone removal exercise between October and December each year, then it is open to Mr Adamski (if there, for example, were to be a flurry of cones falling in May or June of any year), to make a further application to the Court to deal with those matters.

11 All applications that are made to the Court are examined by a Commissioner of the Court to see if there is urgency for public safety reasons to bring an application forward and have an expedited hearing. We are sure, if there were to be a flurry of cones falling from the tree and Mr Adamski made a further application, that would be dealt with with a degree of urgency by the Court and that the normal service of application times and the like would be truncated, as has happened in other cases.

12 Although invited to do so, we do not consider it appropriate to make any comment about the social interrelationships that exist between the parties in any respect whatsoever. We would simply express the view that we would hope that the annual cone removal exercise and the ability of Mr Adamski to engage, at Mrs Betty’s expense, an arborist to audit that cone removal on his behalf will provide an appropriate check to his satisfaction in the future.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court