Shilling v Jordan

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Shilling v Jordan [2009] NSWLEC 1164

PARTIES:
APPLICANT
Kenneth & Maree Shilling

RESPONDENT
Monica Theresa Jordan

FILE NUMBER(S):
20144 of 2009

CATCHWORDS:
TREES (NEIGHBOURS) :- tree pruning, risk of damage to property and possible injury to persons

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Shilling v McNaught [2008] NSWLEC 1097
Yang v Scerri [2007] NSWLEC 592

CORAM:
Fakes AC

DATES OF HEARING:
22 May 2009

JUDGMENT DATE:
22 May 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr K & Mrs M Shilling (litigants in person)

RESPONDENT
Mr D Tink (solicitor)
SOLICITOR
Bilbie Dan Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Fakes AC

22 May 2009
20144 of 2009 Kenneth & Maree Shilling v Monica Theresa Jordan (aka Monica McNaught)

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

ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Kenneth and Maree Shilling of 10 View Street Merewether Heights against a tree located on a property owned by Ms Maria Theresa Jordan. That property is 13 Flowerdale Avenue Merewether Heights. Mr David Tink of Bilbie Dan Solicitors represented the respondent.

The tree is a mature Eucalyptus paniculata (Grey Ironbark) located in the far south-western corner of the respondent’s property. It overhangs several properties, including that of the applicants, and a public footpath.

Mr Colin Morley from Newcastle City Council was in attendance at the hearing due to the potential issues concerning the public footpath. Mr Morley was also able to provide useful information on the Newcastle City Council approved processes by which tree owners and their neighbours could undertake tree pruning.
The Grey Ironbark is the subject of a previous application under this Act made by Mr and Mrs Shilling and heard by Acting Commissioner Thyer on 14th February 2008. In his judgement of the matter cited as Shilling v McNaught [2008] NSWLEC 1097, AC Thyer ordered that the respondent remove all dead wood with a diameter greater than 20 mm as well as any dangerous live wood by 15th April 2008. These works were to be done at the respondent’s cost. Additionally, 5 yearly inspections of the tree were to be undertaken by an AQF level 5 arborist and reports provided to both parties.

These orders were made null and void by the fact that the orders were made against Mr McNaught who was not the owner of the tree.

In this current application, the applicants are seeking the enforcement of the orders made by AC Thyer as, at the time the second application was made, no works had been undertaken on the tree. Photographs in an arborist’s report submitted by the applicants showed the tree had a large dead stem and a significant amount of dead wood elsewhere in the crown.

The applicants’ on-going concern is the risk of damage to property and possible injury to persons. The details of their concerns are clearly outlined in Shilling v McNaught [2008] NSWLEC 1097 as is the condition of the tree at the time of that hearing. The arborist’s report obtained by the applicants for this hearing showed that the tree’s condition had not substantially changed. Mr Shilling is also concerned about the potential damage to the tree caused by level changes within the respondent’s property associated with landscaping works.

On Wednesday 20th May 2009, two days before the on site hearing, the tree was pruned, apparently to the standard set in AC Thyer’s orders. The fresh pruning cuts were obvious and appeared to comply with AS4373: Pruning of Amenity Trees. There are still some small elements of dead wood at the ends of some small branches but these are unlikely to cause damage to property or injury to persons.

Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

In this new application, the issues outlined in section 10(2) can only be considered with respect to the condition of the tree at the time of the on-site hearing.

The tree was inspected from the applicants’ property and that of a neighbour. The respondent’s property was viewed over the fence. There was nothing about the tree or its growing environment to indicate that the tree will cause damage to property or injury to persons in the near future.

Despite the fact that falling dead wood has caused some minor damage to the applicants’ property in the past, the cause of that and likely future damage has now been removed.

Therefore as none of the elements in section 10(2) of the Act can be substantially satisfied, the orders of the Court are that the application is refused.

___________________
J Fakes

Acting Commissioner of the Court

In the case of Shilling v Jordan, the applicants, Kenneth and Maree Shilling, sought relief from the New South Wales Land and Environment Court under the Trees (Disputes Between Neighbours) Act 2006. The applicants sought to enforce previous orders regarding the pruning of a mature Eucalyptus paniculata tree on the neighbouring property of Monica Theresa Jordan. The tree, which overhangs several properties including the applicants', had previously been the subject of a dispute, resulting in orders that were ultimately rendered null and void due to a change in the tree's ownership. The applicants argued that the tree's condition had not improved and continued to pose a risk of damage to their property and potential injury to persons. The case was heard by Acting Commissioner Fakes, who had to determine whether the tree posed a current or imminent risk warranting the enforcement of the previous orders.

The primary legal issue before the court was whether the tree, in its current condition, was likely to cause damage to the applicants' property or injury to persons within the near future. This required the court to interpret and apply section 10(2) of the Act, which mandates that an order can only be made if the tree is likely to cause harm in the near future. The court also had to consider the arborist's report and the visual inspection of the tree at the time of the hearing. Additionally, the court had to address the fact that the tree had been pruned just prior to the hearing, potentially impacting the assessment of its current condition.

Acting Commissioner Fakes concluded that the tree, as inspected at the time of the hearing, did not present a significant risk of causing damage to property or injury to persons in the near future. The pruning conducted before the hearing had addressed the immediate concerns about the tree's condition, particularly the presence of dead wood that could fall and cause harm. Given that the tree's condition did not meet the criteria set out in section 10(2) of the Act, the court ruled that the application should be refused. The court's decision was based on the lack of evidence that the tree would cause harm in the foreseeable future, despite the past incidents of damage.

The court's final order was that the application by Kenneth and Maree Shilling be refused, as the tree did not present a current or imminent risk of causing damage to their property or injury to persons. The court's decision highlighted the importance of the tree's condition at the time of the hearing in determining the likelihood of future harm, and it underscored the need for compliance with the statutory criteria before any orders could be made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established