Hejabian v Elton

[2025] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hejabian v Elton [2025] NSWLEC 1266

Hearing dates:

20 March 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – debris falling from neighbouring tree – risk of damage – risk of injury – whether allergy has been demonstrated – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Land and Environment Court of NSW, Practice Note – Class 2 Tree Applications (December 2018)

Category:

Principal judgment

Parties:

Vahid Hejabian (Applicant)
Scott Peter Elton (First Respondent)
Rachel Lee De Roo (Second Respondent)

Representation:

Counsel:
V Hejabian (Self-represented) (Applicant)
S Elton (Self-represented) (First Respondent)
R Lee De Roo (Self-represented) (Second Respondent)

File Number(s):

2024/483855

Publication restriction:

Nil

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:

• 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?

• 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)?

• 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…