Land and Environment Court of New South Wales CITATION : Shilling v Jordan [2009] NSWLEC 1164 APPLICANT Kenneth & Maree Shilling PARTIES : RESPONDENT Monica Theresa Jordan FILE NUMBER(S) : 20144 of 2009 CORAM: Fakes AC KEY ISSUES: 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 DATES OF HEARING: 22 May 2009 DATE OF JUDGMENT: 22 May 2009 APPLICANT Mr K & Mrs M Shilling (litigants in person) LEGAL REPRESENTATIVES: 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. 1 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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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. 11 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. 12 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. 13 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 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.