Yam v Tavakoli [2024] NSWLEC 1781

Yam v Tavakoli [2024] NSWLEC 1781

The Court found that the tree is likely to cause damage to property in the near future and poses a significant risk of injury to persons, and that remediation by pruning would be insufficient to address the identified risk. Removal is required to mitigate the danger, and the respondent must bear the cost. Orders may be made despite absence of consent under the Environmental Planning and Assessment Act 1979 or Heritage Act 1977, but any other necessary consents must be obtained by the respondent.

Parties
Applicant: Kitty Yam; Respondent: Mina Tavakoli
Jurisdiction
Australia
Judgment Date
21 November 2024
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Class 2 Application / Final Judgment and Orders
Outcome
Application granted. Orders made for tree removal, subject to required consents under legislation other than the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. Respondent to bear removal cost.
Legal Topics
Tree Disputes, Trees (disputes Between Neighbours) Act 2006 Pt 2, Consent Requirements Under Environmental and Heritage Statutes, Risk of Damage or Injury From Trees, Tree Removal Orders, Threatened Species and Biodiversity
Environmental Law Property Law Neighbour Disputes Tree Disputes Trees (disputes Between Neighbours) Act 2006 Pt 2 Consent Requirements Under Environmental and Heritage Statutes Risk of Damage or Injury From Trees Tree Removal Orders +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Kitty Yam

Applicant

Mina Tavakoli

Respondent

Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Class 2 Application / Final Judgment and Orders

Legal Issues

  1. 1 Whether the subject tree is likely to cause damage to property or injury to persons within the meaning of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether remedial or preventative orders (pruning or removal) should be made under s 9 of the Trees (Disputes Between Neighbours) Act 2006
  3. 3 Whether consent under other legislation is required or obviated by the making of the order

Ratio Decidendi

The Court found that the tree is likely to cause damage to property in the near future and poses a significant risk of injury to persons, and that remediation by pruning would be insufficient to address the identified risk. Removal is required to mitigate the danger, and the respondent must bear the cost. Orders may be made despite absence of consent under the Environmental Planning and Assessment Act 1979 or Heritage Act 1977, but any other necessary consents must be obtained by the respondent.

Court Disposition

Application granted. Orders made for tree removal, subject to required consents under legislation other than the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. Respondent to bear removal cost.

Orders

  • Within 7 days of the date of order, respondent must 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).
  • Subject to obtaining any required consent (other than consent required under the above two Acts), respondent must engage and pay for suitably insured and qualified arborists (minimum AQF level 3) to remove the tree within 30 days of obtaining consent, leaving a stump no greater than 2 metres above ground.