Judith Anne Flanagan v Jennifer Louise Murray Kopecky (No 2) [2018] NSWLEC 14

Land and Environment Court New South Wales

Medium Neutral Citation: Judith Anne Flanagan v Jennifer Louise Murray Kopecky (No 2) [2018] NSWLEC 14 Hearing dates: 13 February 2018 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 2 Before: Robson J Decision: See orders at [13] Catchwords: PRACTICE AND PROCEDURE – notice of motion seeking an extension to comply with orders made by the Court – concerning removal of Liquidambar tree – non-compliance with orders made by Commissioner Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Flanagan v Jennifer Louise Murray Kopecky [2017] NSWLEC 1406 Category: Procedural and other rulings Parties: Judith Anne Flanagan (Applicant) Jennifer Louise Murray Kopecky (Respondent) Representation: Counsel: J Flanagan, self-represented (Applicant) J Atkins, as agent (Respondent) File Number(s): 2017/00077604 Publication restriction: Nil

EX TEMPORE Judgment 1. HIS HONOUR: The matter before me as Duty Judge is a Notice of Motion filed on 6 February 2018 by Jennifer Louise Murray Kopecky, the respondent in Class 2 (tree proceedings), seeking the following orders: 1. that the Court grant an extension of time to carry out orders previously ordered by the Court; and 2. that Ms Flanagan is not to unreasonably interfere or prevent the respondent from carrying out the work required. 1. Ms Flanagan and Ms Kopecky own adjoining residences at Charlestown, 10 kilometres south-west of Newcastle. 2. Ms Flanagan appears without legal representation. Ms Kopecky presently resides in Utah, USA. Mr John Lindsay Atkins, although not a legal practitioner, is a bush regenerator and appears as agent on behalf of Ms Kopecky. Mr Atkins was aware of the background facts and made a number of submissions in relation to the Motion. 3. The history of the matter can be briefly detailed. As a result of Class 2 proceedings commenced by Ms Flanagan on 14 March 2017, concerning damage to her property caused by a Liquidambar tree on Ms Kopecky's property at Charlestown, the matter proceeded to hearing on site before Commissioner Fakes on 26 July 2017. At the hearing, Ms Kopecky was represented by Mr Wilcher, an experienced legal practitioner, and also called expert evidence of Mr Paroissien, a consulting arborist. 4. Ms Flanagan applied pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act') for orders seeking the removal of the remaining roots and remaining regrowth of saplings of a Liquidambar tree which were causing damage to her property. 5. In a detailed judgment of 26 July 2017, Commissioner Fakes recorded the history of the matter, not the least of which was that Ms Kopecky had purchased the property from her late father's estate in July 2016. Importantly, detailed legal argument took place before Commissioner Fakes in relation to responsibility for the damage being caused to Ms Flanagan's property. Commissioner Fakes recorded, at [10], that it was clear that the exposed roots were from trees that were still growing. Further, at [13], the Commissioner found that given the extent of the suckering from the Liquidambar roots and the vigour of those suckers, she was satisfied that the roots and suckers were causing damage to Ms Flanagan's property. 6. Commissioner Fakes made detailed findings and gave precise orders. She indicated, at [16], that she was satisfied that Ms Kopecky should pay for the poisoning and the subsequent removal of the Liquidambar suckers and the exposed sections of Liquidambar roots from Ms Flanagan's property. 7. It is clear that those orders, made by the Court and entered in July last year, have simply not been complied with by Ms Kopecky. 8. Notwithstanding the non-compliance, on 6 February 2018, Ms Kopecky filed this Notice of Motion seeking that an extension of time be granted for compliance with the orders. That is, this Motion is filed some months after the work was first to be undertaken in October 2017. Indeed, it was to have been completed in December 2017. 9. Ms Kopecky relies upon her affidavit filed 6 February 2018. I have read the affidavit carefully. It does not, in my view, fully explain the reasons for the delay. Despite this, Mr Atkins told the Court that, based upon his knowledge of the matter, that the orders are still able to be complied with (and will be complied with) if the Court allows some further time for compliance, and that, as far as he is aware, and in accordance with Ms Kopecky's affidavit, appropriate expert contractors have been or are being retained to undertake the work. 10. I have expressed to Mr Atkins, and to Ms Flanagan, my concerns in relation to the Court's orders being flouted by Ms Kopecky in circumstances where - as I have noted earlier - Ms Kopecky would have been fully informed of the nature and extent of the requirements in the orders, noting that she had been represented by an experienced legal practitioner and indeed had an experienced arborist giving her expert advice at the earlier hearing. 11. Despite my concerns, I am prepared to amend the orders of the Court such that in Order 1, the words "October 2017" are substituted with the words "March 2018"; and in Order 2, the words "December 7 to 21 2017" are substituted with the words "20 and 31 May 2018".