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 and Conservation) 2021 Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Michaels v Lei [2023] NSWLEC 1168 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Central Coast Development Control Plan 2022 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Category: Principal judgment Parties: Julie-Anne Macarthur Ward (Applicant) Sione Fotu-Moala (First Respondent) Natasha Fotu-Moala (Second Respondent) Representation: J Ward (Self-represented) (Applicant) S Fotu-Moala (Self-represented) (First Respondent) N Fotu-Moala (Self-represented) (Second Respondent) File Number(s): 2024/139168 Publication restriction: Nil