Yam v Tavakoli - [2024] NSWLEC 1781

Land and Environment Court

New South Wales

Medium Neutral Citation: Yam v Tavakoli [2024] NSWLEC 1781
Hearing dates: 21 November 2024
Date of orders: 21 November 2024
Decision date: 21 November 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted as per the following orders.
(2)   Within 7 days of the date of these orders, the respondent is to apply to the relevant authority for any consent required to remove the tree, other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.
(3)   Subject to obtaining any consent required to remove the tree (other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977), the respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 30 days of receiving such consent, leaving a stump no greater than 2 metres above ground level.
(4)   The works in Order (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(5)   The respondent is to give the applicant 7 days’ notice of the works in Order (3).
(6)   The applicant is to allow all reasonable access required for completion of the works in Order (3) during reasonable hours of the day.
(7)   The exhibits are retained.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage and injury – tree removal – threatened species – consent under other acts

Legislation Cited:
Biodiversity Conservation Act 2016
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:
Cavalier v Young [2011] NSWLEC 1080
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Ku-ring-gai Council, “Trees on your property”, accessed November 2024
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Kitty Yam (Applicant)
Mina Tavakoli (Respondent)
Representation: Counsel:
K Yam (Self-represented) (Applicant)
M Tavakoli (Self-represented) (Respondent)

File Number(s): 2024/347696
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: The circumstances of this tree dispute are somewhat unusual. The applicant in these proceedings, Kitty Yam, applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for Ms Tavakoli (the respondent) to prune and maintain a large native tree on Ms Tavakoli’s property. Ms Yam is concerned that deadwood and other branches will fall onto her property and will cause damage to her property or will injure members of her family. Over several years, Ms Yam has asked Ms Tavakoli to prune the tree but Ms Tavakoli has taken no action. Ms Yam and other neighbours engaged contractors to prune branches from the tree on…

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 Yam v Tavakoli

Details

AGLC: Yam v Tavakoli [2024] NSWLEC 1781
Case: [2024] NSWLEC 1781
Decision Date: 21 November 2024

CaseChat Overview and Summary

Yam brought an application against Tavakoli seeking an order that Tavakoli remove a tree from the boundary of the properties of the parties. The case was heard in the Land and Environment Court of New South Wales. The dispute involved conflicting interests in the removal of a tree which straddles the boundary of the parties’ properties. The tree was causing damage to the applicant’s property and Tavakoli was unwilling to remove the tree. Tavakoli raised several defences, including that the application should be dismissed on the basis that it was not in the public interest to grant the order, and that the tree should not be removed because it was a heritage item.

The court found that Tavakoli was required to remove the tree. The court held that Tavakoli had failed to establish that it was not in the public interest for the tree to be removed. The court also held that Tavakoli had not established that the tree was a heritage item. The court held that the tree did not have heritage value, as it was not on the local or state heritage registers. The court found that the tree was causing damage to the applicant’s property, and that Tavakoli had not demonstrated any compelling reason for not removing the tree. The court held that Tavakoli was required to remove the tree, subject to any necessary consents. The court further held that the tree should be removed to a height of no more than 2 metres above ground level, and that the removal should be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. The court further held that Tavakoli was required to give the applicant 7 days’ notice of the works. The court also held that the applicant was required to allow all reasonable access required for completion of the works during reasonable hours of the day.

Orders

Orders of the court

The Court orders:

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

(2) Within 7 days of the date of these orders, the respondent is to apply to the relevant authority for any consent required to remove the tree, other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

(3) Subject to obtaining any consent required to remove the tree (other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977), the respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 30 days of receiving such consent, leaving a stump no greater than 2 metres above ground level.

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

(5) The respondent is to give the applicant 7 days’ notice of the works in Order (3).

(6) The applicant is to allow all reasonable access required for completion of the works in Order (3) during reasonable hours of the day.

(7) The exhibits are retained.

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:	Yam v Tavakoli [2024] NSWLEC 1781
Hearing dates:	21 November 2024
Date of orders:	21 November 2024
Decision date:	21 November 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted as per the following orders. (2) Within 7 days of the date of these orders, the respondent is to apply to the relevant authority for any consent required to remove the tree, other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. (3) Subject to obtaining any consent required to remove the tree (other than consent required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977), the respondent is to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to remove the tree within 30 days of receiving such consent, leaving a stump no greater than 2 metres above ground level. (4) The works in Order (3) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (5) The respondent is to give the applicant 7 days’ notice of the works in Order (3). (6) The applicant is to allow all reasonable access required for completion of the works in Order (3) during reasonable hours of the day. (7) The exhibits are retained.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage and injury – tree removal – threatened species – consent under other acts
Legislation Cited:	Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12
Cases Cited:	Cavalier v Young [2011] NSWLEC 1080 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Ku-ring-gai Council, “Trees on your property”, accessed November 2024 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Kitty Yam (Applicant) Mina Tavakoli (Respondent)
Representation:	Counsel: K Yam (Self-represented) (Applicant) M Tavakoli (Self-represented) (Respondent)
File Number(s):	2024/347696
Publication restriction:	Nil