Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

1. COMMISSIONER: Morteza Mokhtari (the applicant) and Mahsa Amirabdollahian (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; Ms Amirabdollahian also made submissions supporting the applicant's case. 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)), Ms Amirabdollahian stated that the fence is adequate and they seek 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:

* 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.

* 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).

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

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1987cfc51ad63c4988e3ef3f)

Disclaimer: Curated by HT Syndication.