Crosskill v Koster

[2015] NSWLEC 1062

Land and Environment Court

New South Wales

Medium Neutral Citation:	Crosskill v Koster [2015] NSWLEC 1062
Hearing dates:	20 March 2015
Date of orders:	20 March 2015
Decision date:	20 March 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See [8]-[9]
Catchwords:	PRACTICE AND PROCEDURE: request to vary Court orders; extension of time for pruning works
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Crosskill v Koster [2014] NSWLEC 1241
Category:	Procedural and other rulings
Parties:	Ms F Crosskill (Applicant) Nr R Koster (Respondent)
Representation:	Counsel: Applicant: Ms F Crosskill (Litigant in person) Respondent: Mr R Koster (Litigant in person) Solicitors:
File Number(s):	20615 of 2014

EX TEMPORE Judgment

1. COMMISSIONER: The respondent Mr Koster, by way of notice of motion, seeks leave to vary orders made in the matter of Crosskill v Koster [2014] NSWLEC 1241 heard and determined on 21 November 2014.

2. The matter related to an application made by Ms Crosskill pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the removal of a large Silk Floss tree growing on Mr Koster’s property. The original application was made on the basis that branches had fallen from the tree causing damage to her property. Ms Crosskill was also concerned that future branch failure could cause more damage or could cause injury to anyone on her property.

3. After hearing from the parties and inspecting the tree and other evidence, I determined that removal of the tree was unnecessary at that stage but the removal of deadwood and two other identified live branches was required. My reasons for the making of those orders are set out in that judgment.

4. The orders the subject of this notice of motion are orders (2)-(4). These state:

(2)   The respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the portions of branches described in paragraph [18] of this judgment and illustrated in the photograph in Annexure A.

(3)   In addition, the arborist is to remove all dead wood greater than 40mm in diameter at its base from all parts of the tree overhanging the applicant’s property to a distance of 3m inside the respondent’s property.

(4)   The works in orders (2) and (3) are to be completed by 1 February 2015.

5. Mr Koster seeks to vary the time for the works to be completed to July 2015 on the basis of financial hardship.

6. Ms Crosskill opposes a lengthy extension of time as further branches have fallen onto her property and she maintains that she started the action against Mr Koster some 12 months ago.

7. Having considered the parties’ positions I accept that Mr Koster requires further time to meet the costs of undertaking the work however it would be unreasonable to extend the time frame to July.

8. Therefore, in upholding the notice of motion in part, order (4) is modified as follows:

(4)   The works in (2) and (3) are to be completed by 15 May 2015.

9. All other orders made on 21 November remain unchanged.

________________________

Judy Fakes

Commissioner of the Court

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