Hejabian v Elton [2025] NSWLEC 1266

Judgment

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

Background

1. COMMISSIONER**:** A mature gum tree stands in the front garden of the Rooty Hill property belonging to Scott Elton and Rachel Lee De Roo (the respondents), close to the common boundary shared with their neighbour, Vahid Hejabian (the applicant). Mr Hejabian has applied to the Court seeking orders for tree pruning to remove branches overhanging his property. He dislikes the debris that falls from the tree onto his property and says his wife is allergic to the tree’s flower parts that are shed seasonally.

2. The final hearing took place onsite, allowing the Court to inspect the tree and the surrounding environment. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Mr Hejabian has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders he seeks are orders the Court can make at s 9 of the Trees Act.

4. Relevant issues to be determined in these proceedings are:

5. Has the applicant made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 10(1)(a) of the Trees Act?

6. Can the Court be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person: s 10(2)?

7. If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?

The tree

5. This mature gum tree, possibly Eucalyptus platyphylla (white gum), is 15–20 metres tall with a crown spread of approximately 10 metres. Branches extend a few metres across the common boundary above Mr Hejabian’s property. The tree is in good health, with typical crown density and foliage colour. From my ground-based inspection, I observed no structural defects in the stem or branches. The root collar appeared undisturbed.

Reasonable effort to reach agreement

6. Mr Hejabian has communicated with the respondents but failed to reach the outcome he desires. I am satisfied that he has made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court allowed for the required notice of the application.

Damage or injury

7. Mr Hejabian pointed to small branches that have fallen into his property, including dead branches and others that were live when they fell, all less than 50 mm in diameter. I observed that they were no larger or greater in quantity than what would be expected to fall from a healthy mature gum tree. They are too small to cause any significant property damage and would not injure a person. Mr Hejabian expressed concern that branches would damage his pool cover, but conceded that no damage has occurred to date.

8. The tree has not caused damage to Mr Hejabian’s property. The tree is unlikely to shed any large parts in the foreseeable future. I find the tree is unlikely to cause damage in the near future, or within the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592 at [14].

9. Mr Hejabian produced a letter from a local doctor, a general practitioner, stating that his wife is allergic to seasonal debris that falls from the tree. The letter does not include a diagnosis, but appears to simply transcribe what was told to the doctor: that Mrs Hejabian is allergic to debris that falls from the tree. The letter does not satisfy the requirements of Schedule B to the Court’s ‘Practice Note – Class 2 Tree Applications’, which were given as Order (13) in the Directions Hearing on 18 February 2025, copied here:

Schedule B

Supplementary directions for an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition.

1. Further to direction 6 of the principal directions in this matter, the applicant is to provide, by the close of business on 25/02/2025, any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a “likely cause of injury to any person.”

10. The doctor’s letter is not evidence that the tree is likely to cause injury to a person. Mr Hejabian produced photographs showing what appeared to be the numerous stamens that fall from the tree’s flowers each year. These may be a nuisance, but on the evidence before me, I cannot be satisfied that they are likely to cause injury.

Conclusion

11. The tree on the respondents’ land is healthy, structurally sound, and unlikely to cause damage to the applicant’s property in the near future or injury to a person. It follows that the Court cannot make orders in these proceedings. There is no need for the Court to consider the matters at s 12 of the Trees Act.

Orders

12. The Court orders:

13. The application is refused.

14. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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