Adamski v Betty [2007] NSWLEC 200

Adamski v Betty [2007] NSWLEC 200

The Silky Oak did not warrant immediate pruning or interference because expert arborist evidence showed it was healthy and there was no reasonably foreseeable likelihood of the applicants' fears being realised, although future inspection and reporting were prudent. The Bunya Pine created a foreseeable risk from falling cones, particularly to persons using the rear yard, but annual supervised cone removal was a preferable and sufficient response to removal of the tree. Limited compensation of up to $2800 was justified for rectification costs associated with damage between the December 2006 and February 2007 cone removal exercises.

Jurisdiction
Australia
Judgment Date
10 April 2007
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Two Trees at 27 Braeside Street, Wahroonga / Ex Tempore Judgment; Formal Orders Made Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006
Outcome
Application allowed in part; formal orders made for inspection, reporting, annual Bunya Pine cone removal, limited access and compensation, but no immediate interference with the Silky Oak and no removal of the Bunya Pine ordered.
Legal Topics
['silky Oak Overhanging Branches' 'bunya Pine Cones' 'risk of Injury to Persons' 'risk of Property Damage' 'arborist Inspection and Reporting' 'cone Removal' 'compensation for Past Damage']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'neighbouring Land Use'] ['silky Oak Overhanging Branches' 'bunya Pine Cones' 'risk of Injury to Persons' 'risk of Property Damage' 'arborist Inspection and Reporting' 'cone Removal' 'compensation for Past Damage']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning Two Trees at 27 Braeside Street, Wahroonga / Ex Tempore Judgment; Formal Orders Made Pursuant to S 9 of the Trees (disputes Between Neighbours) Act 2006

Legal Issues

  1. 1 ['Whether the condition of the Silky Oak justified orders for pruning or other interference.' 'Whether falling Bunya Pine cones created a foreseeable risk of injury to persons or damage to property requiring removal of the tree or other orders.' 'Whether a cone removal regime was an adequate alternative to removal of the Bunya Pine.' "Whether compensation should be ordered for past damage to the applicants' dwelling."]

Ratio Decidendi

The Silky Oak did not warrant immediate pruning or interference because expert arborist evidence showed it was healthy and there was no reasonably foreseeable likelihood of the applicants' fears being realised, although future inspection and reporting were prudent. The Bunya Pine created a foreseeable risk from falling cones, particularly to persons using the rear yard, but annual supervised cone removal was a preferable and sufficient response to removal of the tree. Limited compensation of up to $2800 was justified for rectification costs associated with damage between the December 2006 and February 2007 cone removal exercises.

Court Disposition

Application allowed in part; formal orders made for inspection, reporting, annual Bunya Pine cone removal, limited access and compensation, but no immediate interference with the Silky Oak and no removal of the Bunya Pine ordered.

Orders

  • ['Formal orders were made pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006, but were not reproduced in the published decision.' "An inspection and report on the health and safety of the Silky Oak must be undertaken not less than 21 months and not more than 24 months from the date of the Court's...