Shahyari & Sharfpour v Clayton

[2008] NSWLEC 1098

Land and Environment Court

of New South Wales

CITATION:	Shahyari & Sharfpour v Clayton [2008] NSWLEC 1098
PARTIES:	APPLICANT Shala Shahyari & Vargh Sharfpour RESPONDENT Erwin Clayton
FILE NUMBER(S):	21247 of 2007
CORAM:	Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Removal of a tree, risk of injury to people and property damage, compensation for repairs and property maintenance.
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	12/02/08
EX TEMPORE JUDGMENT DATE:	12 February 2008
LEGAL REPRESENTATIVES:	APPLICANT Shala Shahyari & Vargh Sharfpour, litigants in person RESPONDENT Erwin Clayton, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

12 Febraury 2008

21247 of 2007

Shala Shahyari & Vargh Sharfpour v Erwin Clayton

JUDGMENT

The decision was given at the hearing on 12 February 2008.
This written judgment reflects the findings and the background documentation provided as part of the proceedings.

1 ACTING COMMISSIONER: West Pennant Hills and the newer suburb of Cherrybrook were previously a tall forest, part of what is known as the Sydney Blue Gum High Forest. Mr Clayton’s property and the property to the north were both 1 Acre lots when Mr Clayton purchased in 1986. The large Blue Gum in his front yard at 21 Cherrybrook Road was distant from all houses at that time. He moved out in 1994, tenanted his property, and was not well informed of the sub-division and construction of a house next door. The house on No 23 was built 4 m away from the trunk of his tree, the driveway 2 m away, and many roots of the tree were probably cut or covered. Mr Sharifpour’s parents bought the house in 2006 at two-thirds of the asking price. They later had to repair the TV aerial twice after it was damaged by small dead branches from the tree. They also found that the tree dropped leaves and twigs onto their roof and guttering, and that cars parked on the driveway became stained by tree debris. In November 2007 a large, live branch fell from the tree onto Mr Clayton’s property, and Mr Sharifpour began actions to have the tree removed and to be compensated for repairs and maintenance of the home and vehicles.

2 Mr Sharifpour seeks removal of the tree to avoid risk of injury to people and to prevent property damage. He also seeks compensation of $6,047.68 for repairs and property maintenance.

3 The tree is a Sydney Blue Gum (Eucalyptus saligna) approximately 22 m tall with a similar spread. No professional advice was submitted regarding the tree. When viewed at the hearing it appeared to have good vigour but a lighter canopy than is usual for the species in good condition. No co-dominant trunks or forks with included bark were seen. No branch stubs that indicated live branch failure were seen except for the branch of approximately 0.3 m diameter that fell in November 2007. Mr Sharifpour says that branch fell during an afternoon that was not rainy or windy. Neither party reported any other live branch fall. Mr Sharifpour says the tree has dropped dead branches 2 – 3 m long with a diameter of 20 – 50 mm. I observed a small amount of dead wood with diameter up to 90 mm in the tree.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The Issues

6 The issues in this case are:

• How should the tree be managed ?
• What compensation is appropriate?

How should the tree be managed ?

7 This mature Sydney Blue Gum tree has not been actively managed. No information has been provided on any damage caused to the tree by construction of the house at 23 Cherrybrook Road in 1996, or any activities to protect the tree or to promote its health.

8 Mr Clayton says that he never inspected the tree or pruned any of its branches. He says that he gave verbal permission for pruning within the Council Tree Preservation Order to the previous owner of 23 Cherrybrook Road. There are several locations on the trunk that may be where branches were pruned off at that time. Mr Sharifpour admits that he pruned off an additional branch that was growing over his house when he trimmed up the large fallen branch.

9 From the information provided and available at the hearing, there is no reason to assume that the tree presents a higher than usual risk of dropping a live branch in the near future.

10 There is dead wood in the tree that presents a risk of injury and damage.

11 The tree is now growing close to a house and should be managed in a responsible manner. The location of the tree also presents maintenance problems for the owner’s of the house. As neither party appears to have properly considered their responsibilities regarding the tree in the past, I will order that the deadwood be removed, and that the tree be inspected by a professional arborist who will recommend how the tree should be managed.

What compensation is appropriate ?
TV aerial

12 Both instances of damage to the TV aerial by dead branches occurred before the owners advised Mr Clayton of any problem with the tree. For this reason the claim for compensation is dismissed. It may be appropriate for Mr Sharifpour to make a claim on his household insurance policy.

Toyota car

13 Damage to the Toyota car by a dead branch also occurred before the owners advised Mr Clayton of any problem with the tree. For this reason the claim for compensation is dismissed.

Van clean and polish

14 The claim for cleaning and polishing of the van to repair tree debris stains arose before the owners advised Mr Clayton of any problem with the tree. For this reason the claim for compensation is dismissed. Additionally, there is a responsibility for owners to protect and maintain property that is close to trees. The Court addressed such matters in Barker v Kyriakides [2007] NSWLEC 292.

Roof and gutter

15 The roof and gutter cleaning and repair and installation of gutter guard also occurred before the owners advised Mr Clayton of any problem with the tree. For this reason the claim for compensation is dismissed. Additionally as addressed by the Court in Barker v Kyriakides there is a responsibility on those who have the aesthetic and environmental benefits of having trees in their urban environment to undertake appropriate levels of maintenance from leaves, small branches, bark and the like falling on their property or into their gutters. I note that West Pennant Hills and Cherrybrook are wooded suburbs, known for the number of large trees and remaining forest.

Conclusion

16 I find that:

• The dead wood in the tree should be removed to avoid risk of injury and damage;
• The tree should be inspected by a professional arborist to assess its health and safety and to recommend management of the tree;
• All claims for compensation are dismissed.

Orders

17 The Orders of the Court are:

A. The application is upheld, in part;
B. The tree shall be inspected before 31 March 2008 by an arborist with AQF Level 5 recognition to determine the health, structural integrity and safety of the tree, and to recommend management of the tree and any suitable pruning that might occur over 23 Cherrybrook Road to reduce the overhang of the tree on that property. The arborist shall prepare a written report and provide a copy to each party. The arborist shall be one who is acceptable to both parties. The cost of the inspection and report shall be shared equally by each party;
C. 1) All dead wood with a diameter greater than 20 mm that is overhanging 23 Cherrybrook Road shall be removed by 31 May 2008 by an arborist with AQF Level 3 qualifications and suitable insurances. This pruning work shall be at Mr Clayton’s cost. The work shall be in accordance with AS 4373 2007 Pruning of amenity trees;
2) Mr Sharifpour shall permit access to his property for the purpose of the above pruning provided that access is on reasonable notice and at a reasonable time, and Mr Sharifpour is able to supervise that access.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at