Byrnes v Ryan (No 2)

[2022] NSWLEC 27

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byrnes v Ryan (No 2) [2022] NSWLEC 27
Hearing dates:	14 March 2022
Date of orders:	14 March 2022
Decision date:	14 March 2022
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See order at [6]
Catchwords:	TREE DISPUTE – tree dispute application heard and dismissed in February 2021 – second tree dispute application made in December 2021 after large branch falls from tree – respondents seek strike out of second tree dispute application as abuse of process – changed circumstances since first application – fresh application not an abuse of process – strike out application dismissed
Cases Cited:	Joaquim v Adamson [2009] NSWLEC 1312
Category:	Procedural rulings
Parties:	Barbara Byrnes (Applicant) Rosemary Ryan (Respondent)
Representation:	Counsel: Applicant in person (Applicant – Respondent on the motion) Ms J Bristow, solicitor (Respondents – Applicants on the motion) Solicitors: Finn Roache Lawyers (Respondents – Applicants on the motion)
File Number(s):	362007 of 2021
Publication restriction:	No

EXTEMPORE Judgment (corrected prior to publication)

1. HIS HONOUR: The question as to causation is a matter that is appropriate to be dealt with by a commissioner at an on‑site hearing. If, at that on‑site hearing, questions of causation arise as to the cut branch or whether Ms Byrnes caused the torn branch to be detached are matters that the Commissioner will deal with.

2. They are not, however, matters now going to the question of whether there are changed circumstances. Photographs on pp 12 and 13 of Ms Byrnes’ Tree Dispute Application clearly demonstrate that there are significant changed circumstances. The branch that fell is a large one, going beyond merely twigs and incidental debris. The relevant photographs are reproduced below:

3. If there is some necessity to intervene with the tree as a consequence of what the Acting Commissioner finds, that will be dealt with on the day, including matters as to whether the removal of that branch causes any ongoing arboricultural impacts on the tree and its viability, such as the risk of wind‑throw, root‑plate lift and the like.

4. The question of what might be the consequences of that are appropriate to be dealt with by the Acting‑Commissioner, and the question, if there is to be any intervention of the tree, of who should pay for it and why (consistent with decisions such as Joaquim v Adamson [2009] NSWLEC 1312, when the necessity to remove a tree was caused by the actions of the Applicant leading to an order that the costs of removal of the tree be paid by the Applicant rather than by the owner of the tree) also potentially, and only potentially, may arise for consideration.

5. I am however satisfied that there is no basis upon which I can strike out Ms Byrnes’ Tree Dispute Application as an abuse of process.

6. The Notice of Motion is dismissed.

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Decision last updated: 24 March 2022