Shilling v McNaught

[2008] NSWLEC 1097

Land and Environment Court

of New South Wales

CITATION:

Shilling v McNaught [2008] NSWLEC 1097

PARTIES:

APPLICANT
Ken Shilling

RESPONDENT
Garry McNaught

FILE NUMBER(S):

21197 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of a tree, risk of injury to persons, property damage

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

14/02/2008

EX TEMPORE JUDGMENT DATE:

14 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr K. Shilling, litigant in person

RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

14 Febraury 2008

21197 of 2007

Ken Shilling v Garry McNaught

JUDGMENT

The decision was given at the hearing on 14 February 2008.
This written judgment reflects the findings and the background documentation provided as part of the proceedings.

1 ACTING COMMISSIONER: A large Gum tree growing next door overhangs Mr Shilling’s yard and the adjacent public pathway. Mr Shilling remembers the tree as a 2-3 m tall sapling in 1967; it had grown after the area was bulldozed for sewerage and public works. The tree has been dropping dead branches for many years now, and Mr Shilling has removed his BBQ and bird aviary from under the tree in order to avoid damage and injury. Mr McNaught the owner of the tree has denied responsibility for the falling branches, has refused mediation, and did not attend the hearing.

2 Mr Shilling seeks removal of the tree to avoid risk of injury to people and to prevent property damage.

3 The tree has been identified in the arborist’s report provided as a Narrow-leaf Ironbark (Eucalyptus crebra). It is about 16 m tall with a similar spread. It is growing in the south-western corner of Mr McNaught’s property at 13 Flowerdale Avenue Merewether.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The Issues

6 The issues in this case are:

• Is the tree likely to cause damage or injury ?
• Must the tree be removed ?

Is damage or injury likely ?

7 Mr Shilling advised that the tree started dropping small dead branches c. 1985 and has continued to drop dead branches since then. The dead branches falling in the last few years are generally about 4 m long with a diameter of up to 70 mm.

8 I observed dead branches which had fallen from the tree onto Mr Shilling’s property. Those branches were up to 4 m in length. Most of the branches had some decay of the surface of the timber indicating they had held on the tree for some time after they had died.

9 I also observed dead branches of a similar size and condition throughout the tree, and that the central trunk of the tree is dead.

10 Mr Shilling advised that no large, live branches had fallen from the tree, but I observed some odd lumps in live branches over his property, and consider that those should be investigated.

11 I find it likely that damage and/or injury will occur as a result of dead wood falling from the tree unless there is effective intervention with the tree.

Must the tree be removed ?

12 I observed that the tree appeared to be in better general health than was reported by the consulting arborist in July 2007. Mr Shilling agreed with this assessment, and that the more regular and higher rainfall recently may be helping the tree.

13 Mr Shilling advised that he thought the tree had been given three or four weekly applications of a manure based fertiliser during December 2007 – January 2008, as he had noticed the smell and was aware of some-one working around the tree.

14 Mr Shilling also advised that the tree had been covered in ivy many years ago but Mr McNaught had removed the ivy c.1990.

15 I accept that Mr McNaught has made efforts to promote the health of the tree, and consider that the tree should not be removed if the risk of damage or injury can be avoided by other means.

16 As Mr Shilling’s concern has been about dead wood falling from the tree, and it appears that the tree holds the dead wood for a long time before it falls, it seems that pruning out the deadwood at regular intervals would be an appropriate management.

17 Mr Shilling stated his agreement at the hearing to pruning of dead wood rather than removal of the tree.

Conclusion

18 I find that the risk of falling dead wood can be avoided by pruning out the dead wood at regular intervals. Also, inspection of the tree generally and of any odd growths or lumps on live branches should be carried out to allow timely treatment and to ensure safety. As the tree is owned by Mr McNaught, I will order that he carry out the pruning, inspections and treatments at his cost.

Orders

19 The Orders of the Court are:

A. The application is upheld, in part;
B. 1) Mr McNaught shall prune out all dead wood having a diameter greater than 20 mm and any dangerous live wood from the whole of the tree by 15 April 2008, at his cost. All pruning shall be done by an arborist with AQF Level 3 qualifications and suitable insurances;
2) At intervals of no more than five years from the date of the pruning in 1) above and each successive pruning, Mr McNaught shall have the whole of the tree inspected by an arborist with AQF Level 5 qualifications, and have all dead wood and dangerous live wood removed. The arborist carrying out the inspection shall prepare a written report on the condition of the tree, the work to be carried out, and a follow up inspection of the completed work. The inspections, reports and tree work shall be at Mr McNaught’s cost;
3) All tree work shall be in accordance with AS 4373 2007 Pruning of amenity trees;
4) All tree debris from the tree work shall be removed from Mr Shillings property at Mr McNaught’s cost;
5) A copy of each report shall be provided to Mr Shilling within 14 days of receipt of the report by Mr McNaught. Any expense for the copy shall be at Mr McNaught’s cost;
C. Mr Shilling shall permit access to his property for the purpose of the above pruning provided that access is on reasonable notice and at a reasonable time, and Mr Shilling is able to supervise that access.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at