Land and Environment Court
of New South Wales
CITATION: Joaquim v Adamson [2009] NSWLEC 1312 PARTIES: APPLICANTS
R$ESPONDENTS
J & J Joaquim
J & J AdamsonFILE NUMBER(S): 20138 of 2009 CORAM: Moore SC - Fakes AC KEY ISSUES: DISCRETION - EVIDENCE - JURISDICTION - NEIGHBOUR APPLICATION - TREES (NEIGHBOURS) :-
Poisoning of tree
Interference with roots of tree
Death of tree caused by applicant
Applicant to pay costs of removalLEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 ss 9, 10, 12 and 16
Civil Procedure Act 2005 s 56(1)
Land and Environment Court Act 1979 s 38(2)
Uniform Civil Procedure Rules 2005CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Horn & anor v Latter [2007] NSWLEC 744
Hinde v Anderson and anor [2009] NSWLEC 1148DATES OF HEARING: 29 May and 30 June 2009
DATE OF JUDGMENT:
2 October 2009LEGAL REPRESENTATIVES: APPLICANTS
RESPONDENTS
Dr B Caffrey, barrister
In person
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
MOORE SC
FAKES AC
2 October 2009
JUDGMENT20138 of 2009 J & J Joaquim v J & J Adamson
Introduction
1 COMMISSIONERS: Mr and Mrs Joaquim live at 21 Turriell Bay Road, Lilli Pilli. Mr and Mrs Adamson live next door at 23 Turriell Bay Road. Mr and Mrs Adamson have a large number of trees on their property. Mr and Mrs Joaquim havemade an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for removal of a number of these trees, two at the front of the Adamson property and six at the rear.
2 The most prominent of these trees is a Hills Fig tree located in close proximity to the dwelling on each of the Joaquim and Adamson properties. The Hills fig is dying, asymmetrically, with the portion closest to the Joaquim's property being dead or nearly so. The causes of the death of this tree are significant matters for consideration in these proceedings.
The inspection and subsequent court hearing
3 In order to understand some of what follows, it is necessary to set out a little of the procedural history in this matter. When this application first came before the Court, at a preliminary hearing on 24 April 2009, the applicants were represented by their barrister, Mr Caffrey, and the respondents appeared in person.
4 During the course of the preliminary hearing, as is the practice of the Court in these matters, the appropriate directions from the set of standard directions in tree dispute matters were made (the set of standard directions in tree dispute matters is publicly available on the Court’s Internet website) and copies were provided to the parties.
5 Particularly relevant to this decision, Standard Directions 5, 6 and 7 were made as this application included not merely an…
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- AGLC
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- [2009] NSWLEC 1312
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