Adamski v Betty (No 2) [2007] NSWLEC 330

Adamski v Betty (No 2) [2007] NSWLEC 330

Because the formal orders had not been perfected, and given the speed and informality contemplated for the new Class 2 trees jurisdiction and the likelihood of self-represented parties, it was appropriate to reopen the proceedings on three matters. The Court had no jurisdiction to revisit alleged potential structural damage where there was no evidence that the Bunya Pine was likely in the near future to cause such damage. The evidence did not justify changing the annual cone removal period or making orders about ordinary foliage fall, but the deficiencies in prior de-coning and the Court's observation of at least one remaining cone justified permitting a retrospective audit by a qualified...

Jurisdiction
Australia
Judgment Date
19 April 2007
Procedural Posture
Trees (neighbours) Neighbour Application / Application to Re Open Proceedings After Ex Tempore Decision and Before Formal Orders Were Perfected
Outcome
Proceedings reopened on three matters; application to amend the cone removal period refused; no jurisdiction to deal with alleged potential structural damage; no intervention ordered for foliage; retrospective arborist audit of the 2006-2007 cone removal permitted with further removal required if identified.
Legal Topics
['application to Re Open' 'bunya Pine Cone Removal' 'tree Foliage' 'likely Damage to Property' 'class 2 Proceedings']
['trees Disputes Between Neighbours' 'land and Environment Court Procedure'] ['application to Re Open' 'bunya Pine Cone Removal' 'tree Foliage' 'likely Damage to Property' 'class 2 Proceedings']

Case Brief

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Procedural Posture

Trees (neighbours) Neighbour Application / Application to Re Open Proceedings After Ex Tempore Decision and Before Formal Orders Were Perfected

Legal Issues

  1. 1 ["Whether the proceedings should be reopened before formal orders were perfected to address matters raised by Mr Adamski's letter." "Whether the Court had jurisdiction to consider alleged potential future damage to house footings, a boundary fence and expansion of the tree trunk into the applicants' land." 'Whether the annual cone removal period should be changed.' 'Whether falling Bunya Pine foliage warranted intervention by the Court.' 'Whether the earlier December 2006 and February 2007 de-coning exercises should be retrospectively audited.']

Ratio Decidendi

Because the formal orders had not been perfected, and given the speed and informality contemplated for the new Class 2 trees jurisdiction and the likelihood of self-represented parties, it was appropriate to reopen the proceedings on three matters. The Court had no jurisdiction to revisit alleged potential structural damage where there was no evidence that the Bunya Pine was likely in the near future to cause such damage. The evidence did not justify changing the annual cone removal period or making orders about ordinary foliage fall, but the deficiencies in prior de-coning and the Court's observation of at least one remaining cone justified permitting a retrospective audit by a qualified...

Court Disposition

Proceedings reopened on three matters; application to amend the cone removal period refused; no jurisdiction to deal with alleged potential structural damage; no intervention ordered for foliage; retrospective arborist audit of the 2006-2007 cone removal permitted with further removal required if identified.

Orders

  • ["Leave to reopen was granted with respect to the adequacy of the December 2006 and February 2007 cone removal exercises, the nominated time for annual cone removal, and the dropping of foliage onto the applicants' property." 'Leave to reopen or relief concerning potential damage to house footings, the boundary...