Adamski v Betty

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr J Johnson, solicitor Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 THE COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located at 27 Braeside Street, Wahroonga.

2 The applicants, Mr and Mrs Adamski, reside at 31 Braeside Street, Wahroonga which is adjacent to the property containing the trees, despite the non sequential numbering. 3 The two trees that are involved are substantial mature specimens of a Silky Oak (Grevillia robusta) which is on 27 Braeside Street toward the rear boundary of 31 Braeside Street and a Bunya Pine (Araucaria bidwillii) located on 27 Braeside Street near the northeastern corner of that allotment at approximately 60 percent of the depth of 31 Braeside Street from its frontage to the street.

4 We turn first to the question of the Silky Oak. 5 We have considered the evidence which has been provided by expert arborists on behalf of both the applicants and the respondent, Mrs Betty. That evidence is to the general effect that the tree is a significantly mature tree; it is in a satisfactory and healthy state; and that there is no immediate probability of any significant branch failure from any of its limbs. We accept that evidence. 6 The application that is now pressed with respect to the Silky Oak is that the branches of the tree which overhang the Adamski property should be trimmed by Mrs Betty at the boundary of her property. That would now satisfy the concerns that Mr and Mrs Adamski have with respect to the Silky Oak.

7 In this context, it is appropriate for the Court to note that fears that are held (which are honestly held) must, for the Court to have regard to them and take action with respect to them, first not merely be fears that are honestly held but be of both likely significant consequences if realised and, second, be of a likely significant probability of their realisation. 8 We are satisfied that, with respect to the Silky Oak, the arborists' evidence is that the present condition of the tree does not warrant us drawing the conclusion that there is any reasonably foreseeable likelihood of the fears held by Mr and Mrs Adamski being realised. 9 We therefore are satisfied that it is not appropriate to order any interference with the Silky Oak at this time. 10 However, given the significant age of the Silky Oak, we are satisfied that it would be prudent to require that a further inspection of that tree as to its health and safety be undertaken at a period of time approximately two years from the date of this hearing and a report furnished not only to the owner of the Silky Oak but to the residents of 31 Braeside Street at that time. 11 The formal orders of the Court will contain a requirement that not less than 21 months from the date of the orders of the Court or more than 24 months from the date of the orders, an inspection and report on the health and safety of the Silky Oak be undertaken by an arborist who is qualified in arboriculture to an AQF level 5 standard. This inspection and report is to be at the cost of the owner of 27 Braeside Street. A copy of the report is to be furnished within 14 days of its receipt by the owner of 27 Braeside Street to the owners of 31 Braeside Street. 12 Such report would provide a basis, if necessary and appropriate at that time, for a further application to the Court. 13 We also propose to order that any pruning of the Silky Oak recommended in the report should be undertaken at that time at the cost to the owner of the tree.

14 We now turn to the question of the Bunya Pine. 15 The Adamskis' fears with respect to the cones of this pine (cones of which we have independent evidence as to their likely size - each being up to a number of kilograms in weight) falling a significant distance onto their property is the potential effect of causing damage in two quite separate and distinct regards. 16 The first is that there is the possibility of damage to the house and the second is the possibility of damage or injury to persons using the rear yard area. 17 In this regard, we have in evidence a diagram prepared by Mr Adamski showing what he describes as the current zone of falling cones. A copy of that diagram is Annexure A to this decision. 18 Annexure A shows cones located at up to some 12.3 m from the foot of the Bunya Pine. It was clear from the evidence that was given by Mr Adamski that the purpose of the diagram was not to record where the cones landed but where the cones ended up at the end of any roll or bounce that might have been occasioned either by hitting the ground or by hitting any intervening vegetation or fence.

19 The concentration of the cones that is shown on that diagram as at or very close to being under the canopy of the Bunya Pine (with a small number of cones being located at some greater distance). Absent any evidence specifically relating to this tree, we accept that that diagram generally accurately represents the location of the cones, when at rest, after falling from the tree. It shows a significant number of the cones as have fallen on the dwelling and a larger number of cones as having fallen in the rear yard.

20 Through the affidavit of Dr David Betty, son of the owner of 27 Braeside Street, we have been provided with an academic article by Mr Huth who is a senior forest technician in the Queensland Forestry Research Institute at Gympie. This article dealing with Bunya Pines is one in which he postulates that the number of mature cones which might be found in the top of Bunya Pines could be some 20 or more from a single tree. The evidence of Mrs Betty's own witnesses is that in excess of 30 cones of varying ages and sizes (ranging up to fully mature cones) were removed or recovered during the December 2006 to February 2007 cone removal operation and it is the Adamskis' evidence that some 30 additional cones have fallen on their property during this period.

21 Given the absence of evidence as to the age or maturity of the various cones that were gathered or that fell, we are prepared to accept that, within the general area of fallibility of memory, the cones which are depicted as having been discovered on the Adamski property together with those recovered from the tree on behalf of Mrs Betty represent a generally accurate depiction of the total numbers found during this period.

22 We turn to the question of what should occur about the Bunya Pine. 23 We do so in the context that Mr Adamski has acknowledged that the final design of the dwelling now erected on 31 Braeside Street - particularly as to its southwestern corner in the vicinity of the Bunya Pine - was so positioned in order to provide a greater protection for the residents of the dwelling by the insertion of a tiled roof in lieu of the open spaces and pergolas originally proposed at ground level.

24 The history of development of the site shows that the original cottage (which was demolished for the erection of the present dwelling) was located at a setback to the street approximately equal the set back of the current dwelling but was of much more modest dimensions. This is evidenced from the site plan dated May and September 2002 which was appended to the first development application lodged by Mr and Mrs Adamski. 25 The scale of the present house, however, does not appear to us to be unreasonable in its general context and Mr Adamski has frankly and honestly given evidence for the reason of the progressive extension of the hard structures of the house towards the southwestern corner. 26 Even if that concession made by him were a complete answer to claims for compensation for damage to the dwelling, it does not and can not deal with the issue of risk of damage or injury to persons using the rear yard. 27 To say that because the Adamskis have come to the nuisance they ought to accept it and accept restrictions on the use and quiet enjoyment of the rear yard is, we are of the view, unreasonable under all circumstances. 28 However, we are also of the view that it would be equally unreasonable to require removal of the tree if there were any realistic possibility of an alternative methodology for dealing with the foreseeable risk of injury to persons in the rear yard.

29 We turn then, first, to the question of protection of the dwelling. 30 On behalf of Mrs Betty, we were provided with affidavit evidence from Mr Bersten, a qualified consultant engineer. That evidence postulated that a screening structure should be or could erected which would protect the dwelling from such cones. A sketch of what might be required was incorporated in his evidence but the sketch was merely of a very broad conceptual nature rather than being a design.

31 We have no town planning evidence whatsoever as to the acceptability or otherwise of such a structure in the context of the Kur-ring-gai Planning Scheme Ordnance; any development control plan applicable within the Ku-ring-gai Municipality or any other policy or prescription of Kur-ring-gai Council (the Council). 32 As a consequence, we consider that it would be entirely inappropriate of us to order Mr and Mrs Adamski to erect such a structure without a proper planning consideration of it. 33 If, at some future stage, they wished to apply to the Council for the erection of such a structure (it clearly being their present intention not to do so) then that would be a matter for determination by the Council at that stage. We do not consider it appropriate in the course of these proceedings to impose such a structure upon them.

34 With respect to the risk of injury to persons in the rear yard, we are satisfied that a properly carried out cone removal exercise for the Bunya Pine is a preferable course to be followed in lieu of requiring its removal. 35 The Court ordering such a cone removal operation is a significantly different matter compared to some voluntary management agreement, which may have been adopted by Mrs Betty in the past. 36 The Act provides for criminal penalties for the failure to carry out orders made pursuant to its terms; options for enforcement are also available in Class 4 proceedings in the Court to require the carrying out of the activities if they are not otherwise carried out. 37 We are satisfied that, given those strictures which we will attach to a cone removal order, it is appropriate to make some orders in that regard.

38 We are, however, also satisfied that it would be appropriate to provide Mr and Mrs Adamski with a degree of comfort as to how that activity was being carried out and to provide them with the opportunity to have that activity supervised - in addition to any supervision being undertaken of those performing the work on half of Mrs Betty. 39 The orders that we have concluded should therefore be made with respect to the Bunya Pine are that: o between the 15th of October each year and the 15th of December each year (that being the broad evidence as to the relevant period when there is an appropriate window of opportunity for the removal of cones), there should be a cone removal exercise undertaken by and on behalf of Mrs Betty; o that should be under the supervision and control of an AQF Level 5 qualified arborist and that the person climbing the tree for the purposes of cone removal should be at an AQF Level 3 qualified arborist/climber. 40 We are satisfied that it is appropriate to specify that the cones that are to be removed are all cones that are in excess of 100 mm in any dimension.

41 We have had put to us on behalf of Mrs Betty the proposition that access to the Adamski property should be made available for the purposes of cone removal. 42 We have carefully considered this and believe that it would be appropriate to order limited access - not for the purposes of erecting equipment and the like but for the purposes of supervision and control of the cone removal exercise. Such access should be on reasonable notice and with the opportunity for Mr and Mrs Adamski to supervise it. The basis of such supervision will also be dealt with in our orders to which we will return shortly. 43 We are satisfied that the orders should also specifically authorise the pruning of such upper branches as are necessary for accessing the canopy to give effect to the orders of the Court for cone removal. 44 We are of the view that the orders of the Court making this specific provision will provide a basis for rectifying difficulties accessing the upper crown that may have arisen during the December 2006 de-coning (if in fact that was the reason for that inhibition rather than for lack of skill of the person carrying out the activity).

45 We are satisfied, in addition, that it would be appropriate to permit Mr and Mrs Adamski to engage an AQF Level 5 arborist on their own behalf to supervise and oversight the cone removal exercise with the reasonable cost of such arborist to be met by Mrs Betty. 46 We are satisfied that, in order to enable this to occur, Mr and Mrs Adamski should be given not less than one month's notice of the date of the proposed de-coning exercise. Given that we propose to order that two AQF Level 5 arborists be involved, one acting on behalf of each of the parties to these proceedings, we propose to order that each of those arborists should be requested to prepare a report on the de-coning activity to be provided within 21 days of the completion of the de-coning activity to the party that appointed that arborist. A copy of such report is to be made to the other party and to Ku-ring-gai Municipal Council within 14 days of its provision to the commissioning party. 47 We are satisfied that that may assist in providing a basis of ongoing resolution and avoidance of dispute. We would hope that the arborists would, acting in the spirit of collegiality, co-operatively discuss the scope and adequacy of the works being undertaken.

48 Finally, we turn to the question of the compensation for past damage. 49 Mr Adamski sought leave, during the course of the hearing, to amend his application from that which was originally sought (which was a claim for compensation for $2800.00 based on a quotation dated 21 March 2007 from Sydney Gutter and Roof Restorations for a variety of works including re-battening and re-sarking or re-flashing a skylight and replacing a number of tiles) to a much broader application for a significant level of compensation - a level which was in fact unquantified in his proposed amendment. Leave to amend in this regard was refused on the basis of lack of notice and lack of compliance with the specific directions that were given in Callover of this matter about prior notice of the detail of any compensation claims.

50 We are satisfied that a sum to a maximum of $2800 should be required to be paid by Ms Betty to Mr and Mrs Adamski within 28 days of the provision to Mrs Betty or her legal representative of a receipted invoice setting out the work undertaken. 51 We have reached this conclusion on a very narrow basis. It is not a decision as to compensation in general terms for past damage. We are satisfied that it is not unreasonable that the damage for the period between the December 2006 and February 2007 cone removal exercises, of the nature dealt with in the quotation, should have its rectification costs met by Mrs Betty. 52 We have reached that conclusion because, when the supplementary cone removal exercise was undertaken in February 2007, a significant number of large cones were removed - as evidenced by a photograph shown to us by Mr Hill, consultant arborist on behalf of Mrs Betty. 53 We are satisfied that it is, therefore, not unreasonable to assume that the damage occasioned during the period between the two cone removal exercises, was occasioned by cones of significant size which might otherwise have been able to have been removed had there been intervention to create greater access into the canopy part of the Bunya Pine during the December de-coning.

Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.