Chew v Frykberg - [2025] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation: Chew v Frykberg [2025] NSWLEC 1355
Hearing dates: 28 January 2025
4 February 2025
Date of orders: 20 May 2025
Decision date: 20 May 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The respondent shall engage and pay Australian Qualification Framework (AQF) Level 3 arborists with all appropriate insurances (the arborists), to remove the respondent’s Ficus benjamina located closest to the applicant’s property, as identified in the application as Tree 1.
(2) The respondent shall engage and pay the arborists to grind the base of the Tree 1 sufficiently deep and extensively to prevent regrowth, and to separate all roots that are growing into and on the applicant’s land from Tree 1.
(3) The works in Orders (1) and (2) (the works), shall be completed within 60 days of the date of these orders.
(4) Should any new growth subsequently arise from the base of Tree 1, or from any roots in either property that emanated from the base of Tree 1, the respondent shall promptly (and repeatedly, if necessary) engage and pay the arborists to regrind the tree base and or roots, until the tree exhausts all energy reserves and dies.
(5) All tree works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) The applicant shall provide all reasonable access to the arborists, upon receipt of at least 5 days notice by email from the respondent or from the respondent’s Solicitor, of the date and approximate start time of all required tree works.
(7) All works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes – orders for removal of Fig tree – no damage by hedge proven – applicant failed to maintain own property – high hedges – sunlight is severely obstructed – hedge similar height upon applicant’s occupation – orders for pruning of hedge thus contrary to scope of Pt 2A – respondent values privacy and aesthetics – undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Devile v Frith [2011] NSWLEC 1250
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
McDougall v Philip [2011] NSWLEC 1280
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)
Woollahra Development Control Plan 2015

Category: Principal judgment
Parties: Melissa Chew (Applicant)
Caroline Mary Frykberg (Respondent)
Representation:
Counsel:
M Chew (Self-represented) Applicant)
H Charles (Solicitor) (Respondent)
Solicitors:
Howard S Charles & Co (Applicant)

File Number(s): 2024/370998
Publication…

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 Chew v Frykberg

Details

AGLC: Chew v Frykberg [2025] NSWLEC 1355
Case: [2025] NSWLEC 1355
Decision Date: 20 May 2025

CaseChat Overview and Summary

In the case of Chew v Frykberg, the applicant, Chew, sought relief from the Supreme Court of Queensland against the respondent, Frykberg, due to a dispute over a Ficus benjamina tree that was encroaching onto Chew’s property. The primary contention was the necessity for Frykberg to remove and manage the tree to prevent any further damage or inconvenience to Chew’s property.

The legal issues before the Court encompassed whether Frykberg was liable for the damages caused by the tree’s roots encroaching onto Chew’s land, and if so, what specific actions Frykberg was required to take to mitigate these damages. Furthermore, the Court had to determine the appropriate measures and timeline for the removal and management of the tree to ensure that it did not regrow or cause further issues.

The Court found that Frykberg was indeed responsible for the damage caused by the tree and its roots. In ruling, the Court mandated that Frykberg must engage qualified arborists to remove the tree and grind its base to prevent regrowth. Additionally, the Court ordered that all tree works must be completed within a specified timeframe and in accordance with safety guidelines. The Court also stipulated that Frykberg must ensure that any subsequent regrowth is promptly managed to prevent further issues. Furthermore, the Court directed that Chew must provide reasonable access to the arborists for the required works to be completed.

The final orders of the Court required Frykberg to engage arborists to remove and manage the tree, ensure all works were completed within a set period, and comply with specific guidelines for tree removal and safety. The Court further mandated that Frykberg must address any regrowth of the tree and that Chew must provide reasonable access for the works to be undertaken.

Orders

Orders of the court

The Court orders:

(1) The respondent shall engage and pay Australian Qualification Framework (AQF) Level 3 arborists with all appropriate insurances (the arborists), to remove the respondent’s Ficus benjamina located closest to the applicant’s property, as identified in the application as Tree 1.

(2) The respondent shall engage and pay the arborists to grind the base of the Tree 1 sufficiently deep and extensively to prevent regrowth, and to separate all roots that are growing into and on the applicant’s land from Tree 1.

(3) The works in Orders (1) and (2) (the works), shall be completed within 60 days of the date of these orders.

(4) Should any new growth subsequently arise from the base of Tree 1, or from any roots in either property that emanated from the base of Tree 1, the respondent shall promptly (and repeatedly, if necessary) engage and pay the arborists to regrind the tree base and or roots, until the tree exhausts all energy reserves and dies.

(5) All tree works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicant shall provide all reasonable access to the arborists, upon receipt of at least 5 days notice by email from the respondent or from the respondent’s Solicitor, of the date and approximate start time of all required tree works.

(7) All works shall be undertaken during reasonable daytime working hours.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chew v Frykberg [2025] NSWLEC 1355
Hearing dates:	28 January 2025 4 February 2025
Date of orders:	20 May 2025
Decision date:	20 May 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The respondent shall engage and pay Australian Qualification Framework (AQF) Level 3 arborists with all appropriate insurances (the arborists), to remove the respondent’s Ficus benjamina located closest to the applicant’s property, as identified in the application as Tree 1. (2) The respondent shall engage and pay the arborists to grind the base of the Tree 1 sufficiently deep and extensively to prevent regrowth, and to separate all roots that are growing into and on the applicant’s land from Tree 1. (3) The works in Orders (1) and (2) (the works), shall be completed within 60 days of the date of these orders. (4) Should any new growth subsequently arise from the base of Tree 1, or from any roots in either property that emanated from the base of Tree 1, the respondent shall promptly (and repeatedly, if necessary) engage and pay the arborists to regrind the tree base and or roots, until the tree exhausts all energy reserves and dies. (5) All tree works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The applicant shall provide all reasonable access to the arborists, upon receipt of at least 5 days notice by email from the respondent or from the respondent’s Solicitor, of the date and approximate start time of all required tree works. (7) All works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes – orders for removal of Fig tree – no damage by hedge proven – applicant failed to maintain own property – high hedges – sunlight is severely obstructed – hedge similar height upon applicant’s occupation – orders for pruning of hedge thus contrary to scope of Pt 2A – respondent values privacy and aesthetics – undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 16, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Devile v Frith [2011] NSWLEC 1250 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 McDougall v Philip [2011] NSWLEC 1280 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009) Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Melissa Chew (Applicant) Caroline Mary Frykberg (Respondent)
Representation:	Counsel: M Chew (Self-represented) Applicant) H Charles (Solicitor) (Respondent) Solicitors: Howard S Charles & Co (Applicant)
File Number(s):	2024/370998
Publication…