Ward v Fotu-Moala [2025] NSWLEC 1032

Ward v Fotu-Moala [2025] NSWLEC 1032

Roots of the respondents' Norfolk Island Pine caused damage to the applicant's driveway and boundary fence, and are likely to cause damage to the dwelling in the near future; mitigation by root pruning is not viable, and tree removal is warranted under s 10(2) of the Trees Act. Compensation is apportioned due to relative contribution of wear and tear, concrete age, and specification. No compensation is granted for car paintwork, as the damage is not within jurisdiction of the Act.

Parties
Applicant: Julie-Anne Macarthur Ward; First Respondent: Sione Fotu-Moala; Second Respondent: Natasha Fotu-Moala
Jurisdiction
Australia
Judgment Date
21 January 2025
Procedural Posture
Class 1 Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment, Following Interim Orders and Onsite Hearing
Outcome
Orders made for removal of Norfolk Island Pine, driveway removal and replacement, boundary fence repair, apportionment of compensation, and procedural requirements; claim for car paintwork compensation refused.
Legal Topics
Tree Root Damage, Boundary Disputes, Remedies, Tree Removal, Compensation, Jurisdiction Under Trees Act
Environmental Law Property Law Neighbour Disputes Tree Root Damage Boundary Disputes Remedies Tree Removal Compensation +1 more

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Parties

Julie-Anne Macarthur Ward

Applicant

Sione Fotu-Moala

First Respondent

Natasha Fotu-Moala

Second Respondent

Procedural Posture

Class 1 Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment, Following Interim Orders and Onsite Hearing

Legal Issues

  1. 1 Has the Norfolk Island Pine caused, is causing, or is likely to cause damage to the applicant's property as required by s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006?
  2. 2 Does root pruning offer a viable alternative to tree removal to prevent future damage?
  3. 3 Is the applicant entitled to compensation for damage to driveway, fence, and paintwork of tenant's car?

Ratio Decidendi

Roots of the respondents' Norfolk Island Pine caused damage to the applicant's driveway and boundary fence, and are likely to cause damage to the dwelling in the near future; mitigation by root pruning is not viable, and tree removal is warranted under s 10(2) of the Trees Act. Compensation is apportioned due to relative contribution of wear and tear, concrete age, and specification. No compensation is granted for car paintwork, as the damage is not within jurisdiction of the Act.

Court Disposition

Orders made for removal of Norfolk Island Pine, driveway removal and replacement, boundary fence repair, apportionment of compensation, and procedural requirements; claim for car paintwork compensation refused.

Orders

  • The respondents, at their expense, shall engage AQF level 3 arborists with appropriate insurances to remove the Norfolk Island Pine in their front yard to near ground level within 60 days of the date of these orders.
  • Within 60 days of the date of these orders, the respondents, at their expense or through appropriately insured contractors, shall remove the applicant's existing concrete driveway and clear sufficient roots for driveway replacement.