Shanks & anor v McNaught & anor; Shanks & anor v Hammond & anor [2012] NSWLEC 1299

Shanks & anor v McNaught & anor; Shanks & anor v Hammond & anor [2012] NSWLEC 1299

The Court upheld both applications only in part because the statutory threshold in s 10(2) was satisfied only for McNaught T1, whose dead canopy overhung the applicants' studio and side path, and for Hammond T1, T8 and T10, whose dead overhanging wood could fail and cause damage or injury. The evidence did not establish that the other nominated trees were likely in the near future to cause damage to the applicants' property or injury to any person, or the Court declined in discretion to make orders where any risk concerned the respondents' own land and no concern was raised by them.

Jurisdiction
Australia
Judgment Date
26 October 2012
Procedural Posture
Class 2 Applications Under S 7 Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Applications upheld in part. In matter 20779 of 2012, removal of one tree ordered. In matter 20780 of 2012, pruning of dead wood ordered.
Legal Topics
['future Damage to Property' 'potential Injury From Trees' 'tree Removal' 'pruning of Dead Wood' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property' 'land and Environment'] ['future Damage to Property' 'potential Injury From Trees' 'tree Removal' 'pruning of Dead Wood' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Class 2 Applications Under S 7 Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the nominated trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property or were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the applicants made a reasonable effort to reach agreement with the owners of the land on which the trees were situated under s 10(1)(a) in the Hammond matter.' 'What orders, if any, should be made under s 9 of the Trees (Disputes Between Neighbours) Act 2006 for removal or pruning.']

Ratio Decidendi

The Court upheld both applications only in part because the statutory threshold in s 10(2) was satisfied only for McNaught T1, whose dead canopy overhung the applicants' studio and side path, and for Hammond T1, T8 and T10, whose dead overhanging wood could fail and cause damage or injury. The evidence did not establish that the other nominated trees were likely in the near future to cause damage to the applicants' property or injury to any person, or the Court declined in discretion to make orders where any risk concerned the respondents' own land and no concern was raised by them.

Court Disposition

Applications upheld in part. In matter 20779 of 2012, removal of one tree ordered. In matter 20780 of 2012, pruning of dead wood ordered.

Orders

  • ['Matter 20779 of 2012: The application is upheld in part.' "Matter 20779 of 2012: Within 90 days of the date of this judgment, the McNaughts are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove T1, being the tree closest to the dividing fence between the parties' properties,...