Mokhtari v Mediratta

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to paving, boundary fence and clothesline — whether tree removal is required — whether the applicant has suffered a loss — orders for tree pruning and fencing works

Legislation Cited: Dividing Fences Act 1991 (NSW), s 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2024 (NSW), s 4
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7

Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026

Texts Cited: AS 4373:2007 ‘Pruning of amenity trees’
Hornsby Development Control Plan 2024
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment

Parties: Morteza Mokhtari (Applicant)
Nitin Mediratta (Respondent)

Representation: Counsel:
12 May 2025 hearing:
M Mokhtari (Self-represented) (Applicant)
N Mediratta (Self-represented) (Respondent)
11 June 2025 hearing:
M Mokhtari (Self-represented) (Applicant)
S Bergsson (Solicitor) (Respondent)
Solicitors:
Ligeti Partners (Respondent)

File Number(s): 2025/59683

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Morteza Mokhtari (the applicant) and his wife purchased their Pennant Hills property in 2022. On the neighbouring property belonging to Nitin Mediratta (the respondent), a mature pecan tree grows alongside the timber paling fence on the boundary that divides the two properties. The tree has damaged the fence. Mr Mokhtari says it has also disrupted paving on their property and damaged their clothesline. He has applied to the Court seeking orders for removal of the pecan tree and for Mr Mediratta to pay for repairs to the fence, paving and clothesline. He also seeks orders for removal of an ivy vine, growing on Mr Mediratta’s, property that has damaged the fence. Mr Mediratta has refused to remove the pecan tree and the ivy and says he was not asked to pay for property repairs before receiving a copy of Mr Mokhtari’s application.

2. A hearing took place onsite on 12 May 2025, allowing the Court to inspect the trees and relevant parts of both properties. The parties were self-represented at the onsite hearing. Directions were made at the end of the onsite hearing for Mr Mokhtari to provide further quotes for repairing his paving. Mr Mokhtari was granted an extension of time to obtain the quotes at a second hearing on 11 June.

3. In evidence were two reports from arborists: one from Daniel Leonard, of Hartwood Tree Consulting, engaged by Mr Mokhtari; and one from David Gowenlock, of Seasoned Tree Consulting, for Mr Mediratta. I also rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

4. Mr Mokhtari has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The orders he seeks are orders the Court can make at s 9 of the Trees Act. Although the Court can make orders for repairing a fence beyond the section damaged by a tree (s 13A of the Dividing Fences Act 1991 (NSW)), Mr Mokhtari stated that the fence is adequate and seeks orders only for repairing those sections that have been damaged by Mr Mediratta’s trees.

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

6. Whether Mr Mokhtari has made a reasonable effort to reach agreement with Mr Mediratta and given the required notice of the application: s 10(1) of the Trees Act.

7. Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to Mr Mokhtari’s property, or are likely to cause injury to any person: s 10(2).

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

Reasonable effort to reach agreement

6. Mr Mokhtari has discussed the pecan tree with Mr Mediratta. Mr Mediratta submitted that issues such as paving were not raised in any discussion. Mr Mediratta no longer lives at his property, but says his mother does. Mr Mokhtari says he raised all the problems caused by the trees with Mr Mediratta’s mother. Mr Mokhtari tried to arrange mediation through the Community Justice Centres, but they received no response from Mr Mediratta. After commencing these proceedings and serving a copy of the application on Mr Mediratta, Mr Mokhtari says Mr Mediratta asked him to withdraw the application and to take advice from Mr Mediratta’s arborist. Mr Mokhtari felt that the terms of Mr Mediratta’s offer to resolve the dispute without coming to Court would not lead to a suitable outcome. His refusal to withdraw the application seems entirely reasonable in the circumstances. I am satisfied that Mr Mokhtari has made a reasonable effort to reach agreement with the respondent and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

7. Both arborists, Mr Gowenlock and Mr Leonard, assessed and reported on the pecan tree (Carya illinoinensis), but not the ivy (Hedera helix). Mr Mokhtari objected to the Court relying on Mr Gowenlock’s report. Mr Mediratta filed the report on 6 May 2025, one week after the filing date ordered at the Court’s earlier directions hearing. Mr Mediratta explained that Mr Gowenlock had been delayed finalising the report due to personal circumstances. Mr Mokhtari had the report, which is neither long nor complex, for at least five days by the time of the hearing, so was not unduly disadvantaged by the late filing. The Court would be assisted by having all relevant information at hand, so the report was admitted into evidence. Mr Leonard’s report was also accepted into evidence, despite it not meeting the requirements of expert evidence. The rules of evidence do not apply in Class 2 hearings, but an expert who agrees to comply with the Expert Witness Code of Conduct (the Code) at Schedule 7 to the Uniform Civil Procedure Rules 2005, and does comply with it, demonstrates to the Court a commitment to setting out the report in a manner that assists the Court. Mr Gowenlock’s report includes his acknowledgement of, and agreement to be bound by, the Code, along with his address and qualifications and, most importantly, his report sets out the methodology, data and reasons on which he bases his conclusions. Mr Leonard did not acknowledge the Code, nor did he explain the reasons for his conclusions, most notably for his risk rating of the pecan tree. Mr Mokhtari later filed Mr Leonard’s acknowledgement of the Code, but belatedly acknowledging to comply with the Code is futile if the report itself does not comply with the Code. Both arborists used the TRAQ (Tree Risk Assessment Qualification) risk assessment methodology, based on the International Society of Arboriculture’s (ISA’s) best management practices. Having the benefit of both reports, I find Mr Gowenlock’s report more complete and more reliable than Mr Leonard’s report.

8. The pecan tree is approximately 20 metres tall with a stem diameter of 60 centimetres or so. Its broad canopy spreads above both properties. The tree is in good health, according to both arborists, with its structural condition fair (Mr Leonard) or fair–good (Mr Gowenlock). I observed no major structural defects, other than some branches at the outer extent of the canopy showing signs of overextension. Mr Gowenlock noted these overextended branches at par 6.7 of his report. Mr Leonard, at par 4.3 ‘Tree Structure’ of his report, did not mention the tree’s branches but instead discussed paving lifted by the tree’s roots.

9. The tree’s lower stem presses against the dividing fence and encroaches slightly across the boundary at its base. The tree’s canopy holds some relatively minor deadwood.

10. The woody stem of an ivy plant remains on Mr Mediratta’s property, with signs of its foliage remaining on the dividing fence. Ivy, being a vine, is a tree for the purposes of the Trees Act: Trees (Disputes Between Neighbours) Regulation 2024 (NSW) at s 4.

Whether the trees have caused damage

The dividing fence

11. The pecan tree’s lower stem has pushed against the adjacent section of the dividing fence, displacing its posts, rails and timber palings. This is not disputed.

12. Ivy has grown between and displaced fence palings. This is also not disputed. The fence generally shows signs of its age, but the parties agree that the remainder of the fence remains functional.

13. Both the pecan tree and the ivy have damaged the dividing fence.

Pavers

14. Mr Mokhtari’s garden includes a large, paved area toward the back of his property connected by a paved path and steps down to the lower front garden. The paved path and steps run between Mr Mediratta’s pecan tree and a mature pin oak on Mr Mokhtari’s property. Pavers nearest the pecan tree, in the area of its root crown, have been significantly lifted and displaced. It is clear from visual observation alone that the pecan tree’s roots have caused this displacement. In a similar fashion, pavers nearest Mr Mokhtari’s pin oak have been lifted and displaced by that tree.

15. The flat paved area further south on Mr Mokhtari’s property is uneven. The pattern of paver displacement is consistent with roots growing beneath the paving and displacing pavers. The pecan tree and Mr Mokhtari’s pin oak are roughly equidistant from this paved area.

16. Mr Leonard noted at par 4.3 of his report that the pecan tree’s structural roots “…have lifted a paved pathway and courtyard causing a trip hazard.” He did not mention the pin oak or its roots in this section of his report. He wrote that repairing the pathway and courtyard would require cutting of structural roots of the pecan tree.

17. Mr Gowenlock also noted the lifted pavers near the trees and across the paved courtyard and presumed they were caused by root growth. He wrote at par 6.3 of his report:

“It is unknown over how long the lifting of the pavers has been occurring but is highly likely to be more than 10 years due to the size of the tree and the root buttress. The brick pavers do not appear to have been laid on a structurally sound base layer (as some pavers have sunk, and some have risen), nor do the low set of steps appear to have their edge restraint pavers concreted in to lock them in.”

18. Mr Gowenlock noted that the pin oak’s roots had lifted pavers near its base, but when considering the paved courtyard area at par 6.4 of his report, he wrote:

“It is highly likely that the tree roots from both trees are intertwined with each other and both extend under the paved backyard area.”

19. Mr Gowenlock’s findings best describe the damage and its likely causes. Pavers adjacent to the respondent’s pecan tree have been displaced by its root buttress; pavers adjacent to the applicant’s pin oak have been displaced by its root buttress; pavers across the paved courtyard area have been displaced by the network of roots spreading from both trees. The damage has been present for some time.

Clothesline

20. Mr Mokhtari submitted that a branch that fell from the pecan tree damaged his clothesline. He provided a photo showing a fallen branch resting on the clothesline; foliage on the branch is consistent with the pecan tree. The lines on which the branch rests are sagging and the post that supports them leans slightly. I am satisfied that the pecan tree has caused minor damage to the clothesline.

Risk of damage or injury

Roots and root buttress

21. Damage caused to the fence and pavers is likely to continue if no action is taken to remedy and prevent the damage.

Branches

22. Mr Leonard, having recommended removal of the pecan tree due to damage caused by its roots, did not consider branch failure within the body of his report but concluded at par 5 that the risk of damage from branch failure was low. Mr Gowenlock noted a broken branch and some dead branches within the tree’s crown. He wrote that a scar on the tree’s stem might have been caused by lightning strike, but this has not affected the tree’s structural integrity. Mr Gowenlock found that branch failure is probable within the next five years and that a falling branch might strike the applicant’s dwelling, but this would cause negligible damage so the risk was low. Nevertheless, he recommended some pruning works to reduce some lateral branches and remove dead branches, thereby reducing the risk.

23. I generally adopt Mr Gowenlock’s findings and recommendations. Some branches of the pecan tree, including dead branches, are likely to fall within the near future, possibly resulting in minor property damage. Branches are unlikely to cause injury because Mr Mokhtari says his family does not use the outdoor area near the tree due to the uneven paving.

The tree has caused, is causing, and is likely to cause damage

24. By displacing pavers on Mr Mokhtari’s property near its root buttress, and pavers in his courtyard area, the pecan tree has damaged the applicant’s property. The pecan tree and the ivy have damaged the dividing fence. The pecan tree has damaged a clothesline. Some of the pecan tree’s branches are likely to damage the applicant’s property in the near future.

25. The Court can make orders to remedy, restrain or prevent damage, but must first consider matters at s 12 of the Trees Act. Below I consider those matters that are relevant to this decision.

Consideration of s 12 matters

26. The pecan tree is close to the boundary. Its stem pushes against the dividing fence and its crown overhangs Mr Mokhtari’s property. The ivy is close to the boundary and has grown over the dividing fence.

27. It seems likely that pruning or removing the pecan tree would require Hornsby Shire Council’s consent pursuant to section 1.2.6 of the Hornsby Development Control Plan 2024. Council consent has not been obtained to prune or remove the tree.

28. Pruning the pecan tree to reduce the likelihood of branch failure could be done without negative impacts to the tree.

29. The pecan tree provides shade, cooling and other ecosystem services. It contributes to the amenity and landscape value of Mr Mediratta’s property. The ivy has no value to the environment or the landscape.

30. Mr Mokhtari submitted that the pecan tree is hazardous because his child might be allergic to its fruit. He provided no evidence of this.

31. The Court must consider anything else that has contributed to the damage: s 12(h) of the Trees Act. The pecan tree is the sole cause of damage to the section of fence adjacent to the tree and to the pavers adjacent to its root buttress. In the absence of root investigation or identification to show otherwise, I find that the applicant’s pin oak is likely to have contributed equally to damage to the paved courtyard area. On this basis, if compensation were to be ordered for the cost of repairing the paved courtyard area, it would be apportioned to the respondent at 50% of the cost. The ivy has damaged a small section of fence where it grew.

32. The Court is to consider any other matters that are relevant to the circumstances. Mr Mokhtari submitted that there was no damage to the paving when he and his wife purchased the property in 2022. Considering the extent of the damage, this seems highly unlikely. Mr Mokhtari provided no evidence to support this claim. Mr Gowenlock opined that the damage has been occurring for more than 10 years. I accept this. I find that paving on the applicant’s property was likely to be in a similar condition at the time of purchase to its current condition. Therefore the condition of the paving was likely to be factored into the 2022 market price of the applicant’s property: see Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [32]-[34]. If anyone suffered a loss as a result of the damage, it was most probably the previous owner of the applicant’s property, who is not a party to these proceedings. There is therefore no reason to order compensation for any of the paving damage on Mr Mokhtari’s property.

33. Given this conclusion on compensation, the additional quotes provided by the respondent are not required for determining any compensation, but they assist the Court when weighing the cost to the applicant of preventing further damage against the benefits of the tree. The quote of Sydney Landscaping Pty Ltd (20/05/2025) seems to allow for retaining the pecan tree’s roots, avoiding the need for tree removal. That quote is $6,600 to repair paving within one metre of the pecan tree. The quote was provided with Mr Mokhtari’s original application, which did not seek compensation (question 14 of Form H, Exhibit A) for the paved courtyard.

34. The quote from Daya Gardens (19/06/2025), prepared in response to the Court’s orders of 12 May 2025, is for $7,315 to repave an area, but does not specify the area. It may be restricted to the same area as the Sydney Landscaping Pty Ltd quote.

35. The cost for repairing the paving near the pecan tree without requiring the tree’s removal does not seem disproportionate to the tree’s benefits. Therefore, the order for tree removal will not be granted.

36. Damage to the clothesline is minor and does not warrant compensation.

Conclusion

37. For the reasons described above, orders will not be made for removing the pecan tree or for compensation for property damage. Orders will be made for Mr Mediratta to remove the remains of the ivy, to repair the dividing fence where it has been damaged by the pecan tree and the ivy, and to prune the pecan tree. Council consent is not required to carry out the tree works ordered below: s 6(3) of the Trees Act. Mr Mokhtari will bear the cost of repairing his paving, so this requires no orders from the Court. He will need to consider the pecan tree’s roots when carrying out any works.

Orders

38. The Court orders:

39. The application is granted only to the extent of the following orders.

40. The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the pecan tree within 30 days of the date of these orders as follows:

(a) remove dead branches greater than 25 mm in diameter; (b) reduce overextended branches above the applicant’s property, pruning them back to suitable lateral branches, removing no more than 20% of live crown mass; (c) remove broken branches and branches identified as hazardous during the works.

3. The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
4. Within 30 days of the date of these orders, the respondent is to remove all remaining parts of the ivy near the common boundary.
5. Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the sections of fence damaged by the pecan tree and ivy, allowing at least 50 mm clearance between the fence and all parts of the pecan tree. This might require the permanent removal of some palings.
6. The respondents are to give the applicant 7 days notice of the works in Orders (2), (4) and (5).
7. The applicant is to allow any access required for completion of the works in Orders (2), (4) and (5) during reasonable hours of the day.
8. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Amendments

19 September 2025

Amendments made to [1], [2] and [4] in accordance with the Identify Theft Prevention and Anonymisation Policy.