Yam v Tavakoli

Properties are adjoining

1. Ms Yam's property and Ms Tavakoli's property share a corner post. For the application to be considered by the Court, the subject tree must be on land that adjoins the applicant's land: s 7 of the Trees Act. The Court has found that properties sharing only a corner post are adjoining for the purposes of the Trees Act: Cavalier v Young [2011] NSWLEC 1080 at [7].

Reasonable effort

1. Ms Yam provided a record of text messages between herself and Ms Tavakoli. In August 2024, Ms Yam sent a letter to Ms Tavakoli outlining her concerns and requesting pruning. She informed Ms Tavakoli that she intended to seek orders from the Court should Ms Tavakoli fail to take action. I am satisfied that Ms Yam made a reasonable effort to reach agreement and that the timeframe set down by the Court allowed for the required notice of the application (s 10(1) of the Trees Act).

The tree

1. The tree is in the north-western corner of Ms Tavakoli's property. It is a mature Eucalyptus pilularis (blackbutt), 25-30 metres tall with two stems from ground level: the eastern stem, which leans towards Ms Tavakoli's dwelling, about 100 cm in diameter, and the western stem, which leans towards Ms Yam's dwelling, approximately 80 cm in diameter. Long branches in the upper crown extend outward and above Ms Tavakoli's dwelling. The tree appears relatively healthy. The presence of large deadwood throughout the crown is normal and shows that the tree has not been pruned to remove deadwood for some time.
2. Branches are likely to fall and cause damage or injury in the near future (s 10(2) of the Trees Act). Dead branches will fall and would likely damage roof tiles or cars on Ms Yam's property. Long overextended branches are likely to fall, especially onto Ms Tavakoli's property where they could injure a person. To my mind, these risks could be managed by pruning works.
3. Of greater concern is the union at ground level between the two stems. Bark is compressed within the union, preventing fusing of wood where the stems meet. Each stem's root collar is restricted on its tension side by the presence of the other adjacent stem. The visible reaction wood, distinguished by the brighter colour of its bark, especially on the eastern stem, is the tree's response to the additional stresses in this area as the tree's crown grows taller and wider. That is, the tree is responding to the greater stresses by producing additional wood where needed. However, the stem's ability to continue withstanding the loads by producing sufficient reaction wood is limited here by the presence of the other stem. The likelihood of this codominant stem union failing, and the eastern stem falling, is significant enough to warrant intervention. If it falls, the eastern stem will fall onto Ms Tavakoli's dwelling, the roof of which would offer little protection for anyone inside the dwelling.
4. For reference, I include below some photos of the stem union taken during the onsite hearing. Figure 1: The blackbutt's two stems viewed from the south. Figure 2: The blackbutt's stem union. Figure 3: Reaction wood at the union between the stems, most notably on the eastern stem (right). Figure 4: The blackbutt viewed from the north.

The Court can make orders as it sees fit

1. On my assessment, failure of the stem union is likely in the foreseeable future - say, within the next few years. This would result in one of the two stems falling, most likely the eastern stem. This is likely to cause injury to any person in Ms Tavakoli's dwelling.
2. Before making orders under Pt 2 of the Trees Act relating to a tree that is likely to cause damage or injury, the Court must be satisfied that the tree is likely to cause damage to the applicant's property in the near future (s 10(2)(a)) or is likely to cause injury to a person (s 10(2)(b)). Regarding future damage, the Court considers 'the near future' is reasonably represented by a period of the next 12 months: see Yang v Scerri [2007] NSWLEC 592 at [14]. Regarding the risk of injury, the Trees Act includes no timeframe but it would be unreasonable for the Court to consider outcomes that are not likely within the foreseeable future. To me, the risk of injury enlivens the Court's jurisdiction at s 10(2)(b) of the Trees Act to make orders to mitigate the risks I have identified.
3. The Court's jurisdiction is also enlivened by my finding at [10] that large branches are likely in the near future to cause damage to the applicant's property. The cost of works to mitigate that risk would be unreasonable to impose on the respondent if she would then need to pay for removing the tree within a few years due to the risk of stem failure. Consideration of all relevant matters would, I believe, allow the Court to make orders to remove the tree on this element of the application.
4. Ms Yam sought orders for Ms Tavakoli to prune the tree. The Court is not obliged to make the orders sought, but can make orders "…as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree…" (s 9(1) of the Trees Act).

Relevant matters

1. I have considered the relevant matters at s 12 of the Trees Act. The tree contributes to the local ecosystem. It has significant environmental and amenity values, being a large native tree that is part of the local vegetation community. Any reasonable steps should be taken for its retention. Support cables could be installed between the two stems - however, while I consider this might be appropriate for a smaller tree, or where targets are temporary, I do not consider it appropriate here given the tree's size and its proximity to dwellings that are constant targets. Furthermore, installing a cable would increase loads on other parts of both stems, including the area identified by Mr Bradshaw as being affected by wood decay fungus.
2. For these reasons, I find that the tree must be removed to mitigate the risk of injury.
3. Having considered other relevant matters, I will order that the respondent bears the cost of removing the tree.
4. At s 12(b) of the Trees Act, the Court must consider whether interference with the tree would ordinarily require consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act) or the Heritage Act 1977 and, if so, whether any such consent has been obtained. In many circumstances throughout NSW (and indeed in other states) such legislation requires that a person obtains consent from their local government authority or a heritage council to remove or prune a tree. Consent might also be required from other authorities under other acts. The requirement for the Court to consider consent requirements under only the two acts mentioned above stems from s 6 of the Trees Act. 6 Authorisation of work or activity regulated by or under other Act (1) Except as provided by subsection (3), an order under Part 2 or 2A does not authorise or require a person: (a) to carry out any work or engage in any activity for which a consent or other authorisation must be obtained under any other Act without that consent or authorisation, or (b) to carry out any work or engage in any activity that is prohibited by or under any other Act. (2) Except as provided by subsection (3), a person may not apply to the Court for an order under Part 2 or 2A if the carrying out of the work or engagement in the activity concerned is prohibited by or under another Act. (3) An order under Part 2 or 2A has effect despite any requirement that would otherwise apply for a consent or other authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.
5. An order made in proceedings brought under the Trees Act does not authorise a person to carry out works requiring consent under another act without first obtaining that consent (s 6(1)(a)). The exception to this is where consent is required under the EP&A Act or the Heritage Act (s 6(3)). In tree dispute proceedings, orders relating to the tree obviate the need for consent under those two acts, and those two acts only.
6. In tree dispute proceedings, any consent that would be required to interfere with the tree is usually, but not always, limited to the EP&A Act and the Heritage Act. Therefore, orders relating to the tree usually don't require the affected party to gain any consent. However, this is a matter for the affected party to determine and follow through: see s 6(1) of the Trees Act, above.
7. Ms Tavakoli would ordinarily require Council's consent to remove the tree under the EP&A Act, but is not required to gain that consent when carrying out the Court's orders to remove the tree.
8. Ms Tavakoli's blackbutt might be within a threatened vegetation community: the Sydney Turpentine Ironbark Forest (pers. comm, Ku-ring-gai Council Tree Management Officer, 21 November 2024). Council's website includes a 'Trees on your property' page (https://www.krg.nsw.gov.au/Environment/Your-local-environment/Trees/Trees-on-your-property), from which the following paragraph is copied. "No exemptions apply to trees and vegetation on properties mapped within a threatened ecological community as they are protected under the NSW Biodiversity Conservation Act and/or the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. Approval is required for pruning or removal of trees and vegetation through the NSW Department of Climate Change, Energy, the Environment and Water (DCCEEW). To obtain approval, submit a tree application to Council who will inspect and assess your tree and advise you if you are required to obtain a Threatened Species Licence from the NSW DCCEEW. Please note - the Threatened Species Licence application cannot be submitted to DCCEEW without submitting a tree application to Council first."
9. From the above, it follows that:

• Ms Tavakoli is not required to obtain Council's consent to remove the tree under the EP&A Act or the Heritage Act (s 6(3) of the Trees Act).
• Ms Tavakoli is likely to require consent from DCCEEW to remove the tree under the Biodiversity Conservation Act 2016.
• According to Council's website, Ms Tavakoli cannot apply to DCCEEW for consent without first submitting a tree application to Council.

1. Confusing though this seems, Ms Tavakoli must navigate the administrative pathway to obtain any consent required under any act other than the EP&A Act or the Heritage Act. I suggest she begins by contacting Council's tree management department.

Orders

1. 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.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2024