Keen v Abadi

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

1. 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.

2. 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.

3. 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.

4. Ms Keen and her partner have asked Mr Abadi to remove the tree. Mr Abadi wants to keep the tree for its amenity and other benefits.

5. Ms Keen has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for Mr Abadi to remove the tree and to pay compensation for an insurance excess she incurred from the 2022 damage to her property.

6. The final hearing took place onsite, allowing the Court to inspect the tree and the surrounding environment. Both parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

7. At the outset of the hearing, it became apparent that the parties had not complied with orders made at the earlier directions hearing. As a result, both Ms Keen and Mr Abadi prepared documents that they filed with the Court but were not served on the other party. Both Ms Keen and Mr Abadi denied receiving the other parties’ documents, save for Ms Keen’s application forms. I considered scheduling a further hearing to allow for review of documents and any further submissions. However, for reasons given below, the hearing proceeded to a conclusion without that material in evidence and without any disadvantage to either party.

Framework for this decision

8. Ms Keen is a tenant of the property that adjoins Mr Abadi’s property. As an occupant of the land, she is an owner of the land for the purposes of the Trees Act and can therefore apply to the Court pursuant to s 7 of the Trees Act, as she has done. The orders she seeks are orders the Court can make at s 9 of the Trees Act.

9. Relevant issues to be determined in these proceedings are as follows.

10. Has the applicant made a reasonable effort to reach agreement with the respondent and given the required notice of the application (s 10(1)(a) of the Trees Act)?

11. Can the Court be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person (s 10(2))?

12. How should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made as the Court sees fit at s 9?

Reasonable effort

10. Ms Keen described the efforts she and her partner have made towards persuading Mr Abadi to remove the tree, including a series of text messages. Mr Abadi confirmed that he had received and responded to those text messages. The text messages were in documents excluded from evidence, so I rely on each party’s submissions. Mr Abadi has made it abundantly clear that he will not remove the tree. I am satisfied that Ms Keen made a reasonable effort to reach agreement with Mr Abadi and that the timeframe for the hearing allowed for the required notice.

The tree

11. The tree is in the north-eastern corner of Mr Abadi’s property. It is a mature sweet gum with several stems. All stems and scaffold branches have been pruned poorly in the past by lopping them to leave large branch stubs. The regrowth from these lopped stems and branches is made up of weakly attached epicormic branches. In some cases, such badly pruned trees can be managed by remedial pruning, but this sweet gum’s crown is now so poorly formed that this is not a suitable option. Branches will continue to fall periodically from the tree if the tree is retained.

12. Mr Abadi submitted that the tree is healthy. He is correct that foliage in the crown is green and healthy, but this ignores the tree’s structural problems.

The tree has damaged the applicant’s property

13. Branches falling from the tree have damaged the applicant’s property on at least two occasions. In 2022 the tree damaged Ms Keen’s powerline. In 2023 it damaged the dividing fence between the two properties.

Risk of damage or injury

14. No matter what pruning might be done, branches will continue to fall periodically from the tree. They are likely to cause damage to the fence or powerline again. They overhang the footpath and the applicant’s driveway, and may cause injury to a person passing along these paths.

The Court can make orders

15. I am satisfied that the tree has caused and is likely to cause damage to the applicant’s property, so orders can be made (s 10(2) of the Trees Act). I can see no reasonable alternative to tree removal to sufficiently mitigate the risk.

Relevant matters

16. I have considered the matters at s 12 of the Trees Act and discuss below those that are relevant to this decision.

17. The tree is mostly situated on Mr Abadi’s land. It appears to partly encroach at its base onto Ms Keen’s land, but at ground level less than 10% of its stem area is on her land. For the purposes of the Trees Act, the tree is principally on Mr Abadi’s land (s 4(3) of the Trees Act), allowing Ms Keen to apply for orders at s 7. It is also clear that the tree grew at first on Mr Abadi’s land and only when its stem grew in girth at maturity did it then extend across the boundary. Therefore, Mr Abadi remains the owner of the tree: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [151]-[153].

18. Mr Abadi conceded that the tree is only one tree, despite its multiple stems. He referred to the tree as ‘my tree’ throughout his submissions. Yet he argued that the stem that grows over Ms Keen’s property is her responsibility and she should compensate him $980 for his unrecovered expenses arising from the 2023 damage when a branch fell on the boundary fence.

19. With the parties’ additional material absent from the evidence, and to facilitate a ‘just, quick and cheap’ resolution of the dispute, during Mr Abadi’s submissions I offered up my two key findings thus far: first, the tree needs to be removed and, second, Mr Abadi is the owner of the tree. I invited his further submissions on this basis.

20. Mr Abadi submitted that the tree is a beautiful asset to his property and to the neighbourhood.

21. Despite my finding regarding tree ownership, Mr Abadi asked the Court to make the following conditions if tree removal is ordered:

22. The applicant pays the entire cost of removing the tree

23. There must be no access to his land for removing the tree

24. The tree’s stems are to be left at least one metre above fence height

25. All debris arising from the works must be removed

26. No machinery or stump grinder is to access his land

27. Any damage to property, including the boundary fence and Mr Abadi’s garden, must be remedied by the applicant

28. No poisonous herbicides or pesticides are to be used

29. The applicant must provide him with notice of the tree removal works.

30. I understood these conditions to be those that Mr Abadi had provided in his written response to the application. After recording these conditions and repeating them back to Mr Abadi, I asked him if he still felt there was any need for him to receive and review Ms Keen’s additional documents that he did not receive and that are not in evidence, or to provide Ms Keen with his additional documents that she did not receive and that are not in evidence. He expressed his satisfaction that his conditions were recorded accurately and he declared that no further time was needed for the parties to swap and review each other’s documents. I explained that by recording these conditions the Court was not adopting them or committing to making such orders. Mr Abadi did not change his view.

31. Ms Keen seeks removal of the entire tree at Mr Abadi’s expense. She wants the stump ground out to prevent regrowth, as Mr Abadi is unlikely to maintain any regrowth.

32. I see no reason to shift the responsibility for the costs of tree removal away from its owner. Mr Abadi owns the tree. Ms Keen has not caused or contributed to the risk through her own actions or omissions. As is usual in tree matters without extenuating circumstances, the tree’s owner will bear the cost of tree works ordered by the Court.

33. Removing the tree’s stump will prevent regrowth. Despite his submissions to the contrary, Mr Abadi’s attention to the tree has been reactive rather than proactive. He has engaged a tree contractor only after branches have fallen. Stump grinding will be ordered to prevent the tree regrowing from the stump and to avoid the dispute continuing or recurring. Works will inevitably disrupt the boundary fence, so Mr Abadi will make good the boundary fence at the completion of the works.

34. Following the 2022 powerline damage, Ms Keen did not ask Mr Abadi to compensate her for the $500 insurance excess she incurred. I see no reason for Mr Abadi to now compensate Ms Keen for that cost when she made no effort on that element of her claim before lodging her application with the Court.

35. The common boundary fence was damaged by a fallen branch in 2023. Mr Abadi submitted that the fence is shared property and so the cost of its repair should be shared. Ms Keen did not contribute to the cost of fence repairs and Mr Abadi remained $980 out of pocket after his insurer paid only a portion of the repair costs. Following the 2022 powerline damage, and earlier damage to another neighbour’s car, it seems reasonable to expect that Mr Abadi was aware by 2023 of the risk of branches falling from his tree. Mr Abadi demonstrated some negligence by failing to engage a qualified arborist to inspect or prune the tree after the 2022 incident. Mr Abadi has owned his property for 20 years. During his ownership the tree has been pruned poorly, outside of the guidelines of Australian Standard AS 4373:2007 Pruning of amenity trees, resulting in the high likelihood of ongoing branch failure. These considerations are relevant under s 8(1) of the Dividing Fences Act 1991:

8 Contribution where negligent or deliberate act

(1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.

(2)…

28. In the circumstances, it seems reasonable that Mr Abadi was liable for the cost of repairing a fence damaged by a branch from his tree.

29. Mr Abadi told Ms Keen that he had applied to Willoughby City Council for consent to remove the tree but Council refused consent. Mr Abadi conceded during his submissions that he had not lodged any application with Council.

30. Liquidambar styraciflua is listed in Attachment 1 of Chapter G of the Willoughby Development Control Plan 2023 as an undesirable species exempt from permit approval. Mr Abadi did not, and does not, require a permit to remove the tree.

Orders

31. The Court orders:

32. The application is granted as per the following orders.

33. 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.

34. 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’.

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

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

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

38. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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