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 respondents' land. This difference in land levels amplifies the considerable height of the tree's canopies such that branches may fall 20-30m before striking the house, or surrounding gardens and lawns. 7. The Santosas purchased their property in November 2020, and the applicant alerted the respondents to her concerns about the trees soon after. Responding quickly, Mr Santosa lodged a Tree Management Application with Wollongong City Council (Council) and on 4 January 2021, he received a notice of determination from Council permitting selective pruning of epicormic growth and pruning of all dead wood. 8. After having trouble finding a suitable contractor, the respondents had the works completed at considerable cost in November 2021. In an affidavit dated 16 February 2023 (Exhibit 1), at paragraph (6), Ms Santosa submitted that she and her husband had wanted the trees checked and dead wooded for their families' safety and prioritised the maintenance of the trees. 9. Notwithstanding these pruning works, in June 2022 and again on 18 July 2022, Ms Sheehan delivered letters to the respondents, requesting pruning of all branches overhanging her property. The applicant noted that Council approval had been gained for these works and requested that the respondents contact a specified tree contractor to arrange for the works to be conducted. 10. Ms Santosa contacted Council for clarification. Council confirmed that no such approval had been granted and that permission for pruning of trees can only be sought from, and granted to, the tree owner. As the respondents had the trees pruned at considerable expense in November 2021, they were disinclined to have them pruned so soon afterwards. 11. Consequently, Ms Sheehan made an application on 18 November 2022, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking removal of the trees from the respondents' adjacent neighbouring property.