Ward v Fotu-Moala - [2025] NSWLEC 1032

Land and Environment Court

New South Wales

Medium Neutral Citation: Ward v Fotu-Moala [2025] NSWLEC 1032
Hearing dates: 6 June and 4 September 2024
Date of orders: 21 January 2025
Decision date: 21 January 2025
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
(1) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances, to remove the Norfolk Island Pine in their front yard to near ground level. The tree shall be removed within 60 days of the date of these orders.
(2) Within 60 days of the date of these orders, the respondents, at their expense, or workers with appropriate insurance contracted by the respondents’, shall remove the applicant’s existing concrete driveway and clear sufficient roots to provide for driveway replacement.
(3) Within 45 days of the date of these orders, each party shall procure and exchange one itemised quotation from a licenced builder or licenced concreter with appropriate insurances, for surface preparation and installation of a 75 mm thick, non-reinforced concrete driveway in the existing driveway’s location.
(4) The applicant shall employ and pay a licenced builder or licenced concreter with appropriate insurances to replace the driveway within 90 days of the date of these orders.
(5) Within 7 days of the completion of the driveway works, the applicant shall email the respondents a copy of an itemised paid invoice for the driveway works. Within 7 days of receipt of the paid invoice for driveway replacement, the respondents shall pay the applicant 60% of the quantum of the cheapest quote for surface preparation and replacement of a 75 mm thick, non-reinforced concrete driveway, per Order 3, by electronic funds transfer (EFT).
(6) The respondents, at their expense, shall employ a fencing contractor with appropriate insurance to replace or repair one sloping and two rectangular common boundary fence panels closest to the front boundary, so the fence is aligned along the boundary, sturdy, and vertical. The fence works shall be completed within 120 days of the date of these orders.
(7) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of each of the tree removal, concrete removal, and fencing works. The applicant shall provide the respondents with at least 72 hours emailed notice of the date and approximate start time of the driveway replacement works. Each party shall provide the other party, or their contractors with appropriate insurances, all required access to undertake the various works.
(8) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(9) All works shall be undertaken during normal daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and concrete driveway – apprehension of future dwelling damage

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12
State Environmental Planning Policy (Biodiversity…

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 Ward v Fotu-Moala

Details

AGLC: Ward v Fotu-Moala [2025] NSWLEC 1032
Case: [2025] NSWLEC 1032
Decision Date: 21 January 2025

CaseChat Overview and Summary

Ward v Fotu-Moala is a case before the NSW Civil and Administrative Tribunal, where the applicant, Ward, sought an order for the removal of a Norfolk Island Pine and for the replacement of a driveway, as well as repairs to a fence. The respondents, Fotu-Moala, are the neighbours who planted the tree and whose driveway and fence are adjacent to the applicant’s property. The dispute arises from the impact of the tree on the applicant’s property and the inconvenience caused by the existing driveway and fence.

The legal issues before the tribunal included whether the applicant had a right to have the tree removed and the driveway replaced, and if the tribunal had jurisdiction to order the respondents to undertake these works. Additionally, the court had to determine the reasonable terms and conditions for the execution of these works, including timelines, costs, and compliance with safety standards.

The tribunal found that the tree and its roots were causing significant damage to the applicant’s property and that the existing driveway and fence were not properly aligned or maintained. The tribunal held that the respondents had a duty to mitigate any harm caused by their tree and that the applicant had a right to have the tree removed and the driveway replaced. The court also found that it had the jurisdiction to order the respondents to undertake these works and set out detailed orders to govern the execution of the works, including timelines, costs, and compliance with safety standards.

In summary, the tribunal ordered the respondents to remove the tree to near ground level, remove the existing driveway and clear the roots, and replace or repair the boundary fence. The applicant was ordered to replace the driveway, and the parties were required to exchange quotations for the works. The court also set out detailed provisions for the notice and access required for the works to be undertaken.

Orders

Orders of the court

The Court orders that:

(1) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances, to remove the Norfolk Island Pine in their front yard to near ground level. The tree shall be removed within 60 days of the date of these orders.

(2) Within 60 days of the date of these orders, the respondents, at their expense, or workers with appropriate insurance contracted by the respondents’, shall remove the applicant’s existing concrete driveway and clear sufficient roots to provide for driveway replacement.

(3) Within 45 days of the date of these orders, each party shall procure and exchange one itemised quotation from a licenced builder or licenced concreter with appropriate insurances, for surface preparation and installation of a 75 mm thick, non-reinforced concrete driveway in the existing driveway’s location.

(4) The applicant shall employ and pay a licenced builder or licenced concreter with appropriate insurances to replace the driveway within 90 days of the date of these orders.

(5) Within 7 days of the completion of the driveway works, the applicant shall email the respondents a copy of an itemised paid invoice for the driveway works. Within 7 days of receipt of the paid invoice for driveway replacement, the respondents shall pay the applicant 60% of the quantum of the cheapest quote for surface preparation and replacement of a 75 mm thick, non-reinforced concrete driveway, per Order 3, by electronic funds transfer (EFT).

(6) The respondents, at their expense, shall employ a fencing contractor with appropriate insurance to replace or repair one sloping and two rectangular common boundary fence panels closest to the front boundary, so the fence is aligned along the boundary, sturdy, and vertical. The fence works shall be completed within 120 days of the date of these orders.

(7) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of each of the tree removal, concrete removal, and fencing works. The applicant shall provide the respondents with at least 72 hours emailed notice of the date and approximate start time of the driveway replacement works. Each party shall provide the other party, or their contractors with appropriate insurances, all required access to undertake the various works.

(8) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(9) All works shall be undertaken during normal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ward v Fotu-Moala [2025] NSWLEC 1032
Hearing dates:	6 June and 4 September 2024
Date of orders:	21 January 2025
Decision date:	21 January 2025
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances, to remove the Norfolk Island Pine in their front yard to near ground level. The tree shall be removed within 60 days of the date of these orders. (2) Within 60 days of the date of these orders, the respondents, at their expense, or workers with appropriate insurance contracted by the respondents’, shall remove the applicant’s existing concrete driveway and clear sufficient roots to provide for driveway replacement. (3) Within 45 days of the date of these orders, each party shall procure and exchange one itemised quotation from a licenced builder or licenced concreter with appropriate insurances, for surface preparation and installation of a 75 mm thick, non-reinforced concrete driveway in the existing driveway’s location. (4) The applicant shall employ and pay a licenced builder or licenced concreter with appropriate insurances to replace the driveway within 90 days of the date of these orders. (5) Within 7 days of the completion of the driveway works, the applicant shall email the respondents a copy of an itemised paid invoice for the driveway works. Within 7 days of receipt of the paid invoice for driveway replacement, the respondents shall pay the applicant 60% of the quantum of the cheapest quote for surface preparation and replacement of a 75 mm thick, non-reinforced concrete driveway, per Order 3, by electronic funds transfer (EFT). (6) The respondents, at their expense, shall employ a fencing contractor with appropriate insurance to replace or repair one sloping and two rectangular common boundary fence panels closest to the front boundary, so the fence is aligned along the boundary, sturdy, and vertical. The fence works shall be completed within 120 days of the date of these orders. (7) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of each of the tree removal, concrete removal, and fencing works. The applicant shall provide the respondents with at least 72 hours emailed notice of the date and approximate start time of the driveway replacement works. Each party shall provide the other party, or their contractors with appropriate insurances, all required access to undertake the various works. (8) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (9) All works shall be undertaken during normal daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and concrete driveway – apprehension of future dwelling damage
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12 State Environmental Planning Policy (Biodiversity…