Shirlaw v McClenaughan

File Number(s): 2025/297058

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** A large blackbutt (the tree, Eucalyptus pilularis) grows in the back garden of the Oyster Bay property belonging to Nikola and Simone McClenaughan (the McClenaughans, or the respondents). On 10 March 2024 a dead branch from the tree fell, piercing the roof of the neighbouring dwelling belonging to Brendan and Carissa Shirlaw (the Shirlaws, or the applicants). The branch came through the Shirlaws’ kitchen ceiling while people were in the dwelling.

2. The Shirlaws have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking the following order:

3. Inspection of the tree by a qualified arborist to access [sic] tree safety and potential for property damage. Work to then be carried out in a timely way as recommended by the arborist. Reassessment and maintenance to continue on a regular cycle.

4. In their original application, the Shirlaws also sought reimbursement for costs of repairing damage that the fallen branch caused to their dwelling, but they removed this order from their amended application. They reiterated at the hearing that they do not seek compensation.

5. The McClenaughans proposed an alternative order that the application should be dismissed.

6. The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

6. The orders that the Shirlaws seek are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit. However, the Court must not make any order unless it is satisfied, first, that the Shirlaws have made a reasonable effort to reach agreement with the McClenaughans, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to their property or injury to a person: s 10 of the Trees Act. Before making any orders, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

7. The record of text messages between the parties demonstrates that the Shirlaws made a reasonable effort to reach agreement, unsuccessful though they were in achieving their desired outcome. The Shirlaws have given the required notice of the application.

The tree has caused damage to the applicants’ property

8. It seems not to be in dispute, and I accept, that the fallen branch that pierced the Shirlaws’ roof and ceiling came from the subject tree.

Orders can be made

9. The jurisdictional hurdles at s 10 of the Tree Act being passed, orders can be made to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree (s 9 of the Trees Act).

Consideration of relevant matters

10. As required by s 12 of the Trees Act, I consider the following matters before determining this application.

11. At its base, the tree is close to the common boundary shared by the parties. Its crown extends beyond the boundary such that branches overhang the Shirlaws’ back garden. Before it was pruned recently, branches overhung the Shirlaws’ dwelling, but the tree’s crown has been reduced and branches no longer overhang the dwelling.

12. Consent to prune or remove the tree would ordinarily be required from Sutherland Shire Council (Council). Exemptions in the Sutherland Shire Development Control Plan 2015 include, at cl 4.4(1)(b) and (c):

b. The work being carried out is confined to the removal of tree branches which directly overhang the roof of a residence or commercial building and the extent of the work is limited to the pruning of branches to the nearest branch junction or collar to clear the roofline, provided the owner of the tree is in agreement. Pruning must be consistent with the relevant Australian Standard for the Pruning of Amenity Trees (AS43732007).

c. The work being carried out is minor pruning. For the purpose of this clause, minor pruning means work that does not reduce the canopy of a tree by more than 10% in any 12 month period. This work must be consistent with the Australian Standard for the Pruning of Amenity Trees (AS4374-2007).

13. The McClenaughans applied for, and received, Council’s consent to prune the tree. The McClenaughans then engaged an arborist to prune the tree as per Council’s determination dated 8 August 2025.

14. The blackbutt is part of the natural ecosystem of the area. It contributes environmental values, providing habitat for local fauna. It provides significant ecosystem services including shading and cooling, rainfall interception, and carbon and pollutant removal from the air. Its roots assist with stabilising the sloping land on which it grows.

15. At ss 12(h) and 12(i), where the tree has caused damage or is likely to cause damage or injury, the Court is to consider acts and omissions of the parties that may have contributed to such damage, or are likely to contribute to such damage or injury.

16. The Shirlaws submitted that the McClenaughans do not maintain the blackbutt and never have maintained it.

17. The Shirlaws submitted that they informed the McClenaughans of the fallen branch and the damage it caused soon after it happened. The McClenaughans submitted that they were not informed of the incident and were unaware of it until they received a copy of the Shirlaws’ tree dispute application, which was also included a claim for compensation for the damage. In evidence provided by the Shirlaws (in Exhibit B), a copy of a text message from Carissa Shirlaw to Simone McClenaughan, apparently sent on 15 July 2025, stated:

“…I’m not sure if you know, but last year a branch off [the tree] fell through our kitchen while I was washing up and to be honest it scared me because it was quite close to where I was. It wasn’t a big one but it still did quite a bit of damage and came right through the tiles and the plaster board and we had to repair the roof, the ceiling and the waterproofing.”

18. I conclude from its wording that this text message was the first mention to the McClenaughans of the incident that caused damage to the Shirlaws’ dwelling over 16 months earlier. This text message was part of a string of messages, beginning 1 July 2025, between the parties concerning the tree. The Shirlaws asked for the tree to be inspected by a professional arborist. The McClenaughans explained that they would like to do something about the tree but were short of funds after the parties had shared the cost of a new dividing fence in early 2025. Mr McClenaughan explained in a text message on 17 July 2025 that he would obtain quotes but that it might take a few months to get any work done. The tone of the messages changed soon after and, on 18 July 2025, Mr Shirlaw texted that “…it’s clear that continuing this discussion isn’t proving productive, so we won’t be engaging further with either of you on this matter.”

19. The McClenaughans submitted an application for tree pruning to Council on or around 24 July 2025, although it omitted Ms McClenaughans’ signature, so they submitted a further and complete application to Council on 28 July 2025.

20. The McClenaughans then received a copy of the Shirlaws’ tree dispute application on 8 August 2025. Mr McClenaughan texted Mr Shirlaw the next day to inform him that they had applied to Council, they were arranging tree pruning works pending Council’s approval, and they may require access to the Shirlaws’ property. Mr McClenaughan again requested access to the Shirlaws' property via text messages on 10, 11 and 14 August 2025. On 11 August 2025, the McClenaughans received Council’s consent to prune the tree. Mr Shirlaw eventually replied to Mr McClenaughan on 15 August, without acknowledging the McClenaughans’ request for property access, and asking that all communications be “strictly within the formal channels.”

21. The McClenaughans engaged contractors to prune the tree on 8 September 2025. The works were completed without accessing the Shirlaws’ property.

22. The McClenaughans submitted that they have maintained their tree since purchasing the property in 2012. They provided documents showing that:

23. The McClenaughans applied to Council for consent for tree works in 2013

24. The McClenaughans paid over $12,000 in December 2013 for unspecified landscape works that may or may not have included tree works

25. Council granted consent to prune the tree in a determination dated 4 September 2017

26. The McClenaughans applied to Council for consent to remove the tree (Tree 1) on 6 September 2017, with Council’s determination of 18 September 2017 refusing consent for tree removal but granting consent to prune the tree

27. The McClenaughans withdrew $3,300 cash from their bank account on 19 March 2018 and submitted to the Court that the cash was to pay for tree works including pruning the tree as per Council’s consent

28. The McClenaughans obtained a quote of $5,610 for tree works on 24 July 2025

29. The McClenaughans applied to prune the tree on 28 July 2025 and received Council’s consent on 8 August 2025

30. The tree was pruned on 8 September 2025 as per Council’s consent.

31. The McClenaughans provided photographs showing the tree before and after the 8 September 2025 pruning. The long branch extending over the Shirlaws’ property was significantly reduced.

32. With the benefit of the onsite inspection, I find that the tree is unlikely to cause damage to the Shirlaw’s property in the near future or to cause injury to a person. The likelihood of branch failure has been minimised by the recent pruning works. Should a branch fall from the tree, it is unlikely to strike the Shirlaws’ dwelling. The limited part of the Shirlaws’ garden that is beneath the tree’s crown does not appear to be a high-use area. For these reasons, orders are not required to prevent damage or injury in the near future. Regarding the ongoing risk in the longer term, I take at face value the McClenaughans’ statements that they have maintained the tree at reasonable intervals and will continue to do so. The Shirlaws submitted that a review of historic Google Street View images would show that the tree was not pruned at the times claimed by the McClenaughans, but the Shirlaws did not provide such evidence to the Court.

33. For the reasons set out above, I see no reason for the Court to make the orders that the Shirlaws seek, nor any other orders for tree works.

Orders

26. The Court orders:

27. The application is refused.

28. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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