Sheehan v Santosa [2023] NSWLEC 1279

Sheehan v Santosa [2023] NSWLEC 1279

The applicant satisfied the preliminary jurisdictional requirements in ss 8 and 10(1). The evidence of cracked roof tiles, holes in gutter guard and deadwood on the roof established that falling deadwood from the respondents' trees had caused damage to the applicant's dwelling roof, and the quantity, location and size of deadwood on the trees established likely near future damage, engaging s 10(2)(a). The Court was not satisfied that injury to persons was likely under s 10(2)(b), because human occupancy in the target zone was rare to occasional, the more frequently used areas were clear of the canopy overhang, there was no evidence of sticks penetrating through the roof, and no past...

Jurisdiction
Australia
Judgment Date
06 June 2023
Procedural Posture
Class 2 Tree Dispute Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing; Orders Made
Outcome
Application allowed in part; pruning and ongoing inspection orders made against the respondents at their expense, rather than removal of the trees.
Legal Topics
['damage to Dwelling Roof From Falling Deadwood' 'likelihood of Injury From Trees' 'jurisdictional Requirements Under Trees (disputes Between Neighbours) Act 2006' 'pruning and Maintenance Orders' 'urban Tree Amenity and Ordinary Maintenance']
['trees Disputes Between Neighbours' 'environmental and Planning Law' 'property Damage'] ['damage to Dwelling Roof From Falling Deadwood' 'likelihood of Injury From Trees' 'jurisdictional Requirements Under Trees (disputes Between Neighbours) Act 2006' 'pruning and Maintenance Orders' 'urban Tree Amenity and Ordinary Maintenance']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing; Orders Made

Legal Issues

  1. 1 ['Whether the applicant satisfied the notice and reasonable effort requirements in ss 8 and 10(1) of the Trees (Disputes between Neighbours) Act 2006.' "Whether the two Eucalyptus pilularis had caused, were causing, or were likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes between Neighbours) Act 2006.' 'What orders, if any, should be made after considering the discretionary matters in s 12 of the Trees (Disputes between Neighbours) Act 2006.']

Ratio Decidendi

The applicant satisfied the preliminary jurisdictional requirements in ss 8 and 10(1). The evidence of cracked roof tiles, holes in gutter guard and deadwood on the roof established that falling deadwood from the respondents' trees had caused damage to the applicant's dwelling roof, and the quantity, location and size of deadwood on the trees established likely near future damage, engaging s 10(2)(a). The Court was not satisfied that injury to persons was likely under s 10(2)(b), because human occupancy in the target zone was rare to occasional, the more frequently used areas were clear of the canopy overhang, there was no evidence of sticks penetrating through the roof, and no past...

Court Disposition

Application allowed in part; pruning and ongoing inspection orders made against the respondents at their expense, rather than removal of the trees.

Orders

  • ["Within 60 days of the date of the orders, the respondents, at their expense, shall employ an arborist with AQF level 5 and AQF level 3 qualifications, who holds all appropriate insurances, to supervise the reduction pruning of two Eucalyptus pilularis to remove all branches overhanging, and within 3.5m of...