Shahyari & Sharfpour v Clayton [2008] NSWLEC 1098

Land and Environment Court of New South Wales

CITATION : Shahyari & Sharfpour v Clayton [2008] NSWLEC 1098

APPLICANT Shala Shahyari & Vargh Sharfpour PARTIES : 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

APPLICANT Shala Shahyari & Vargh Sharfpour, litigants in person LEGAL REPRESENTATIVES: 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.