Sczepanski v O’Brien [2010] NSWLEC 1231

Land and Environment Court of New South Wales

CITATION : Sczepanski v O'Brien [2010] NSWLEC 1231

APPLICANT A Sczepanski PARTIES : RESPONDENT M O'Brien

FILE NUMBER(S) : 20403 of 2010

CORAM: Moore SC

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson and anor [2009] NSWLEC 1148

DATES OF HEARING: 19 August 2010

EX TEMPORE JUDGMENT DATE : 19 August 2010

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

19 August 2010

10/20403 Sczepanski v O'Brien

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerns a Willow Gum located in the south-eastern corner of the rear yard of a property in Conroy Crescent at Kariong. 2 At the commencement of the hearing, an application was made by Mr O'Brien, the owner of the tree, that, of the two Commissioners appointed by the Chief Judge to hear and determine the application, one of us – Acting Commissioner Hewett – should recuse himself from taking any further part in the proceedings. 3 The possibility of such an application had been foreshadowed in the papers filed by Mr. O'Brien in response to Mr. Sczepanski's application. I had discussed with Acting Commissioner Hewett, prior to the commencement of the hearing, whether there was any basis upon which he considered he should recuse himself from the proceedings. He indicated to me that he did not consider that there was any such basis and that his contact with Mr. Mark Bury, Mr O'Brien's consulting arborist had purely been in a professional capacity whilst he (Acting Commissioner Hewett) had been employed as the City Arborist at Newcastle City Council. 4 At the commencement of the on-site hearing I indicated that position to Mr. Sczepanski and Mr. O'Brien. I gave Mr. O'Brien the opportunity to consider whether he wished to make some submission that Acting Commissioner Hewett remove himself and the basis for it. Mr O'Brien made such an application – the basis of it was an assertion to Acting Commissioner Hewett and me by Mr. Bury that, some time in the past, Acting Commissioner Hewett had physically assaulted Mr. Bury. 5 In response, Acting Commissioner Hewett and I withdrew to enable the Acting Commissioner to consider his position in light of this assertion. 6 After doing so, Acting Commissioner Hewett made the following statement (which I now place on record in this judgment): I reject entirely the allegation that I have been involved in any physical exchange with Mr. Bury. The last occasion I had any contact with Mr. Bury was during my tenure as City Arborist at Newcastle City Council in 2005. I have had no further professional contact with him (apart from seeing him at professional seminars from time to time) and I know no reason why my participation in these proceedings would disadvantage his client.