Foster v Norris - [2025] NSWLEC 1364

Land and Environment Court

New South Wales

Medium Neutral Citation: Foster v Norris [2025] NSWLEC 1364
Hearing dates: 8 January 2025
11 February 2025
Date of orders: 22 May 2025
Decision date: 22 May 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The Pt 2A application is refused.
(2) The Pt 2 application to remove the tree is refused. The following orders are made under the Pt 2 application.
(3) The applicants are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree within 60 days of the date of these orders as follows:
(a) Remove the three branches that contact or are close to contacting the applicants’ dwelling (see photos in Annexure A);
(b) Reduce other branches over the applicants’ dwelling to minimise risk of branch failure, considering the loss of the three branches in Order (3)(a), ensuring that this additional pruning amounts to no more than 10% of the tree’s live crown mass;
(c) Remove deadwood that is greater than 50 mm in diameter over the applicants’ property.
(4) The works in Order (3) must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(5) The applicants are to give the respondent at least 7 days’ notice of the works in Order (3). When giving notice of the works, the applicants are to provide the respondent with copies of the arborist’s qualifications and relevant insurances.
(6) The respondent is to allow any access required for completion of the works in Order (3) during reasonable hours of the day.
(7) If works are undertaken to remedy the defective retaining wall, the applicants are to consider the recommendations on p 12 of Mr Baker’s report (Exhibit 2). The respondents are to ensure that the tree is not damaged during the works, and that all parts of a replacement retaining wall allow sufficient clearance to the fig tree for its continuing growth.
(8) The exhibits are returned other than exhibits A, B, C and 2.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – application to remove neighbouring tree – whether the tree has damaged or is likely to damage property – whether the tree is likely to cause injury – whether tree removal is required – the tree was there first – whether dwelling was constructed according to approved plans – who should pay for works – Pt 2A application – neighbouring tree – obstruction of sunlight – no jurisdiction for single tree

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12; Pt 2A, ss 14A, 14B, 14E, 14F
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl. 3.33

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hendry v Olsson [2010] NSWLEC 1302
Robson v Leischke (2008) 72 NSWLR 98

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 Foster v Norris

Details

AGLC: Foster v Norris [2025] NSWLEC 1364
Case: [2025] NSWLEC 1364
Decision Date: 22 May 2025

CaseChat Overview and Summary

Foster v Norris involved a dispute between the applicants, the Fosters, and the Norrises, their neighbours. The Fosters sought to remove a fig tree from the Norrises' property that they claimed encroached upon their property and posed a risk to their dwelling. The Norrises opposed the removal of the tree and argued for its pruning instead. The case was heard in the Local Court of New South Wales.

The court was required to determine whether the tree posed a significant risk to the Fosters' dwelling and, if so, what measures should be taken to mitigate that risk. The court had to balance the Fosters' right to protection from harm with the Norrises' right to maintain their property, including their trees. The court also had to consider whether the proposed removal of the tree was proportionate to the risk posed.

The court found that the tree did pose a risk to the Fosters' dwelling but that removal was not the appropriate remedy. The court ordered the applicants to prune the tree in a manner that minimised the risk to their dwelling while also preserving the health and aesthetic value of the tree. The court made specific orders regarding the type and extent of pruning to be carried out, the qualifications and insurances of the arborist to be engaged, and the notice and access to be provided to the Norrises. The court also made orders regarding the remedying of a defective retaining wall that was found to be contributing to the risk posed by the tree.

The court's orders reflect a balanced approach to resolving disputes between neighbours over trees. The court recognised the importance of protecting the health and amenity value of trees while also protecting property owners from harm. The specific orders made in this case provide clear guidance on how to mitigate the risk posed by the tree while also preserving its value.

Orders

Orders of the court

The Court orders:

(1) The Pt 2A application is refused.

(2) The Pt 2 application to remove the tree is refused. The following orders are made under the Pt 2 application.

(3) The applicants are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree within 60 days of the date of these orders as follows:

(a) Remove the three branches that contact or are close to contacting the applicants’ dwelling (see photos in Annexure A);

(b) Reduce other branches over the applicants’ dwelling to minimise risk of branch failure, considering the loss of the three branches in Order (3)(a), ensuring that this additional pruning amounts to no more than 10% of the tree’s live crown mass;

(4) The works in Order (3) must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5) The applicants are to give the respondent at least 7 days’ notice of the works in Order (3). When giving notice of the works, the applicants are to provide the respondent with copies of the arborist’s qualifications and relevant insurances.

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

(7) If works are undertaken to remedy the defective retaining wall, the applicants are to consider the recommendations on p 12 of Mr Baker’s report (Exhibit 2). The respondents are to ensure that the tree is not damaged during the works, and that all parts of a replacement retaining wall allow sufficient clearance to the fig tree for its continuing growth.

(8) The exhibits are returned other than exhibits A, B, C and 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Foster v Norris [2025] NSWLEC 1364
Hearing dates:	8 January 2025 11 February 2025
Date of orders:	22 May 2025
Decision date:	22 May 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Pt 2A application is refused. (2) The Pt 2 application to remove the tree is refused. The following orders are made under the Pt 2 application. (3) The applicants are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree within 60 days of the date of these orders as follows: (a) Remove the three branches that contact or are close to contacting the applicants’ dwelling (see photos in Annexure A); (b) Reduce other branches over the applicants’ dwelling to minimise risk of branch failure, considering the loss of the three branches in Order (3)(a), ensuring that this additional pruning amounts to no more than 10% of the tree’s live crown mass; (c) Remove deadwood that is greater than 50 mm in diameter over the applicants’ property. (4) The works in Order (3) must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (5) The applicants are to give the respondent at least 7 days’ notice of the works in Order (3). When giving notice of the works, the applicants are to provide the respondent with copies of the arborist’s qualifications and relevant insurances. (6) The respondent is to allow any access required for completion of the works in Order (3) during reasonable hours of the day. (7) If works are undertaken to remedy the defective retaining wall, the applicants are to consider the recommendations on p 12 of Mr Baker’s report (Exhibit 2). The respondents are to ensure that the tree is not damaged during the works, and that all parts of a replacement retaining wall allow sufficient clearance to the fig tree for its continuing growth. (8) The exhibits are returned other than exhibits A, B, C and 2.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – application to remove neighbouring tree – whether the tree has damaged or is likely to damage property – whether the tree is likely to cause injury – whether tree removal is required – the tree was there first – whether dwelling was constructed according to approved plans – who should pay for works – Pt 2A application – neighbouring tree – obstruction of sunlight – no jurisdiction for single tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12; Pt 2A, ss 14A, 14B, 14E, 14F State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl. 3.33
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hendry v Olsson [2010] NSWLEC 1302 Robson v Leischke (2008) 72 NSWLR 98