Shilling v McNaught [2008] NSWLEC 1097

Shilling v McNaught [2008] NSWLEC 1097

The Court found it likely that damage and/or injury would occur from dead wood falling from the tree unless there was effective intervention, but also found that the risk could be avoided by regular pruning, inspection and treatment rather than removal. Because the tree was owned by Mr McNaught, he was ordered to carry out the required pruning, inspections, reporting, debris removal and treatments at his cost.

Jurisdiction
Australia
Judgment Date
14 February 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal or Management of a Neighbouring Tree / Ex Tempore Judgment After Hearing
Outcome
The application is upheld, in part.
Legal Topics
['removal of a Tree' 'risk of Injury to Persons' 'property Damage' 'pruning and Inspection Orders']
['land and Environment' 'tree Disputes Between Neighbours'] ['removal of a Tree' 'risk of Injury to Persons' 'property Damage' 'pruning and Inspection Orders']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Removal or Management of a Neighbouring Tree / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the tree is likely to cause damage or injury.' 'Whether the tree must be removed.']

Ratio Decidendi

The Court found it likely that damage and/or injury would occur from dead wood falling from the tree unless there was effective intervention, but also found that the risk could be avoided by regular pruning, inspection and treatment rather than removal. Because the tree was owned by Mr McNaught, he was ordered to carry out the required pruning, inspections, reporting, debris removal and treatments at his cost.

Court Disposition

The application is upheld, in part.

Orders

  • ['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.' "At intervals of no more than five years from the...