Keen v Abadi - [2025] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation: Keen v Abadi [2025] NSWLEC 1303
Hearing dates: 14 April 2025
Date of orders: 14 April 2025
Decision date: 14 April 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted as per the following orders.
(2) The respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 60 days of the date of these orders, including grinding out its stump to at least 200 mm below ground level.
(3) The works in Order (2) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4) The respondent is to give the applicant 7 days’ notice of the works in Order (2).
(5) The applicant is to allow all reasonable access required for completion of the works in Order (2) during reasonable hours of the day.
(6) At the completion of the works in order (2), the respondent is to make good the boundary fence.
(7) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – damage to property – history of branch failure – who owns the tree – tree removal – who should pay for the works

Legislation Cited:
Dividing Fences Act 1991, s 8
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12

Cases Cited:
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:
Australian Standard AS4373:2007 ‘Pruning of amenity trees’ (2007)
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)
Willoughby Development Control Plan 2023

Category: Principal judgment
Parties: Roseanna Keen (Applicant)
Kamran Abadi (Respondent)
Representation: Counsel:
R Keen (Self-represented) (Applicant)
K Abadi (Self-represented) (Respondent)

File Number(s): 2025/47666
Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: At the centre of this neighbourhood dispute is a sweet gum (Liquidambar styraciflua) growing in the front corner of Kamran Abadi’s (the respondent’s) Chatswood West property. At its base, the tree has multiple stems, one of which spreads beyond the boundary fence into the neighbouring property where Roseanna Keen (the applicant) lives.
Over many years, branches have fallen periodically from the tree. Most recently, branches fell in the storms of January 2025, after which a large branch remained suspended in the crown. Willoughby City Council (Council) ordered Mr Abadi to remove the branch due to its threat to public safety.
In 2023 a branch fell onto the wire boundary fence, damaging the fence and blocking Ms Keen’s driveway. Before that, in 2022, a branch fell and damaged the powerline that takes electricity into Ms Keen’s property. Before Ms Keen moved here in 2017, a branch fell from the tree and damaged another neighbour’s car.
Ms Keen and her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keen v Abadi

Details

AGLC: Keen v Abadi [2025] NSWLEC 1303
Case: [2025] NSWLEC 1303
Decision Date: 14 April 2025

CaseChat Overview and Summary

The case of Keen v Abadi involved a dispute between neighbours over a tree that had grown into the property of the applicant, Keen. The tree in question had caused damage to the applicant’s boundary fence and was also a safety hazard. The matter was brought before the court seeking orders for the removal of the tree by the respondent, Abadi, who was the owner of the tree. The court was tasked with determining the appropriate measures to be taken for the removal of the tree and the responsibilities of each party in the process.

The primary legal issue before the court was whether the respondent had an obligation to remove the tree and, if so, what specific actions were required to ensure the tree was removed in a manner that was safe and complied with relevant guidelines. The court needed to consider the rights and obligations of the parties under property law and any relevant guidelines or statutes that applied to tree removal and maintenance. Additionally, the court had to determine what notice and access provisions were necessary to facilitate the removal process without unduly burdening either party.

In resolving the matter, the court considered the impact of the tree on the applicant’s property and the potential risks associated with its removal. The court concluded that the respondent had a duty to remove the tree and directed the respondent to engage suitably qualified and insured arborists to carry out the removal. The court specified that the removal should adhere to the Safe Work Australia guidelines to ensure safety and proper execution. The orders included provisions for notice to the applicant, access for the removal team, and the restoration of the boundary fence post-removal. The court emphasised the importance of timely and careful execution of the tree removal to mitigate any further damage or safety hazards.

The court’s final orders mandated that the respondent engage and pay for arborists to remove the tree within a specified timeframe, comply with safety guidelines, and provide notice to the applicant. The respondent was also required to make good the boundary fence and allow the applicant reasonable access for the works. The exhibits were to be returned, except for one which was to be retained by the court.

Orders

Orders of the court

The Court orders:

(1) The application is granted as per the following orders.

(2) The respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 60 days of the date of these orders, including grinding out its stump to at least 200 mm below ground level.

(3) The works in Order (2) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondent is to give the applicant 7 days’ notice of the works in Order (2).

(5) The applicant is to allow all reasonable access required for completion of the works in Order (2) during reasonable hours of the day.

(6) At the completion of the works in order (2), the respondent is to make good the boundary fence.

(7) The exhibits are returned, other than Exhibit A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Keen v Abadi [2025] NSWLEC 1303
Hearing dates:	14 April 2025
Date of orders:	14 April 2025
Decision date:	14 April 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted as per the following orders. (2) The respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 60 days of the date of these orders, including grinding out its stump to at least 200 mm below ground level. (3) The works in Order (2) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) The respondent is to give the applicant 7 days’ notice of the works in Order (2). (5) The applicant is to allow all reasonable access required for completion of the works in Order (2) during reasonable hours of the day. (6) At the completion of the works in order (2), the respondent is to make good the boundary fence. (7) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – damage to property – history of branch failure – who owns the tree – tree removal – who should pay for the works
Legislation Cited:	Dividing Fences Act 1991, s 8 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12
Cases Cited:	Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	Australian Standard AS4373:2007 ‘Pruning of amenity trees’ (2007) Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016) Willoughby Development Control Plan 2023
Category:	Principal judgment
Parties:	Roseanna Keen (Applicant) Kamran Abadi (Respondent)
Representation:	Counsel: R Keen (Self-represented) (Applicant) K Abadi (Self-represented) (Respondent)
File Number(s):	2025/47666
Publication restriction:	Nil