Sheehan v Santosa

[2023] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sheehan v Santosa [2023] NSWLEC 1279

Hearing dates:

21 February 2023

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See Orders at [70].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – unreasonable level of falling debris claimed

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard, AS 4373:2007, Pruning of amenity trees

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category:

Principal judgment

Parties:

Annette Sheehan (Applicant)
Adam Santosa (First Respondent)
Carly Santosa (Second Respondent)

Representation:

Counsel:
C Koikas (Applicant)
C Santosa (Solicitor) (Respondents)

Solicitors:
Maguire & McInerney Lawyers (Applicant)
Nikolovski Lawyers (Respondents)

File Number(s):

22/348147

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Two large Eucalyptus pilularis (Blackbutts) (the trees) are growing on fertile clay soils on an east facing hillside below the Illawarra escarpment, on the Santosas’ (the respondents) property in Mount Pleasant.

2. Mr Beisler, in an arborist report for the applicant (Exhibit D), called them “sentinel trees”, and this description is apt. The trees are mature and long established, about 25 metres (m) tall, with straight, strong trunks with diameters of about 1.25 m at breast height (DBH).

3. Eucalyptus pilularis comprises individuals that may live for 200 – 300 years or more, should they grow under ideal conditions and experience good fortune with respect to bushfires, storms, and lightning. In urban areas, their life span is usually much shorter.

4. Mr Beisler submitted that the trees were “remnant” and though I am not familiar with the history of this area’s settlement by non-first nations people, these Blackbutts are likely to be remnant of the natural vegetation. Determination of the age of long-established trees is difficult as many variables may impact their appearance. As a generalisation, ‘hollows’ (or cavities) begin to develop in long-lived Eucalyptus trees after 80 - 120 years, but their establishment is influenced by the severity and frequency of broken or shed branches or trunk apexes during major storms, and the health and vigour of the trees, which impacts resistance to wood decay fungi. Though these trees do not yet exhibit obvious hollows, I nonetheless expect their age to exceed 100 years.

5. Ms Sheehan (the applicant) claims to have endured falling branches breaking her dwelling’s roof tiles for many years, and her application included photographs of secondary damage from the entry of water. The applicant submitted that urgent intervention with the trees was necessary as she feared that her house insurer may otherwise discontinue her cover for such damage, given that she had made various prior insurance claims for damage resulting from the trees, and had another one pending.

6. As the hillside is quite steep, the applicant’s property is considerably lower than the…