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[2026] NSWLEC 1215
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-16
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Vigliante v Feetham [2026] NSWLEC 1215
Hearing dates: 16 April 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Jurisdiction: Class 2
Before: Galwey AC
Decision: The Court orders:
(1) The application is granted to the extent of the following orders.
(2) The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 4 palms, including their root balls, along their rear boundary within 90 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) The exhibits are retained.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees should be removed — whether order can be made to remove soil — order for tree removal
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 8, 9, 10, 12
Texts Cited: Safe Work Australia, Guide to managing risks of tree trimming and removal work (July 2016)
Category: Principal judgment
Parties: John Vigliante (First Applicant)
Maria Vigliante (Second Applicant)
Richard Feetham (First Respondent)
Eleanor Feetham (Second Respondent)
Representation: Counsel:
J Vigliante (Self-represented) (First Applicant)
M Vigliante (Self-represented) (Second Applicant)
R Feetham (Self-represented) (First Respondent)
E Feetham (Self-represented) (Second Respondent)
File Number(s): 2026/15282
Publication restriction: Nil
9 Jurisdiction to make orders
(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.
(2) …
The four palms are 7–8 metres tall. They are close to the dividing fence. They are taller than the Vigliantes’ dwelling, which is also close to the dividing fence, such that the palms’ fronds rub against the Vigliantes’ roof and guttering.
The Vigliantes submit that:
The palms have damaged the fence, which leans into their property up to 90 mm at its top.
Displacement of the fence and a low retaining wall beneath the fence has obstructed their side gate, preventing it from closing properly.
Palm fronds rub against their roof and guttering during windy weather. The noise from this is a nuisance. The fronds might eventually damage their dwelling.
The fronds interfere with reception of their satellite dish.
Pruning would only temporarily address these issues.
The fence was not made to support soil, which should be removed.
The Feethams took no action when requested, but only offered to prune the palms after receiving the tree dispute application. Pruning would not fix the problem, so the Vigliantes continued with these proceedings.
The Feethams submit that:
The palms, and the garden bed in which they grow, were present when they purchased No 4 in June 2024.
The damage caused by the palms is minor. The fence leans only 70 mm at its top and remains stable, structurally sound and functional. The fence is not about to collapse.
The extent of the fence’s displacement has not changed noticeably since June 2024.
The side gate at No 54 remains fully functional.
There is no evidence of root damage, nor of damage to the roof or guttering.
The orders sought are disproportionate to the minor damage that is present.
The Feethams will take action if the damage becomes more severe.
The Vigliantes did not accept the Feethams’ offer to prune the palms.
Displacement of the dividing fence appears to result from a combination of pressure from the soil in the raised garden bed and pressure from the palms’ expanding root balls. I am satisfied that the palms have contributed to damage, and have therefore caused damage, to the dividing fence, which is the property of both parties. This passes the threshold test at s 10(2)(a) of the Trees Act, allowing the Court to make orders: the palms have caused damage to the Vigliantes’ property.
The fence has been displaced sufficiently to prevent the side gate at No 54 from closing without using undue force. I observed this during the hearing. If Mr Feetham used the gate recently without any problem, as he submits, then the fence’s displacement has increased recently, as the gate did not close when I used it. The fence’s displacement has resulted in a wide gap between the top of the fence at its end and the adjacent fence post.
The low retaining wall beneath the fence is also slightly displaced. The bottom of the side gate at No 54 now hits the wall, preventing it closing. This displacement is most likely caused by the palms’ expanding root balls.
As the Feethams submit, the fence is currently structurally sound and functional. Damage is relatively minor. The fence is not about to collapse. Nevertheless, the fence’s displacement is slowly increasing, as to be expected with the growth of the palms’ root balls right against its lower section. I see no reason to wait for further displacement of the fence before taking action.
The palms fronds have not damaged the Vigliantes’ roof or guttering. Interference with satellite reception, while it may be a nuisance, does not equate to damage caused by the palms.
The palms have caused damage to the fence and the Court can make orders. Before determining the application, the Court is to consider matters at s 12 of the Trees Act. Relevant matters are considered below.
The trees are situated against the dividing fence and close to the Vigliantes’ dwelling.
The trees are not an exempt species in Randwick City Council, so ordinarily a tree permit would be required from Council to remove the trees. Pursuant to s 6(3) of the Trees Act, a tree permit would not be required to carry out tree works ordered in these proceedings.
The trees have no significant social or environmental value. They contribute to the amenity of the Feethams’ property.
The Vigliantes have not contributed to the damage via their own acts or omissions. The damage seems to have principally occurred prior to the Feethams’ purchase of No 4. The Feethams did not cause any damage prior to June 2024 and should not be responsible for repairing damage that occurred before June 2024. The damage is relatively minor. The fence remains functional and does not seem to need repair. With minor adjustments that the Vigliantes could possibly carry out, their side gate should function properly. No orders will be made for the Feethams to repair the fence.
However, without further action, the Feethams are adopting and continuing the nuisance, and would be responsible for any future damage the palms may cause. The Feethams are therefore responsible for preventing the damage. The only practical way to prevent further damage to the fence is to remove the palms and their root balls.
The Feethams submit that 30 days, or even 60 days, is too short a timeframe to arrange tree removal works. Any increase in damage should be minor over the next few months, so they will be allowed 90 days to remove the palms. They should not require access to No 54 for removing the palms.
The Court cannot order removal of soil that is against the fence. The Court notes that the removal of the trees and their root balls will provide an opportunity for the Feethams to remove the raised garden bed against the fence, which would otherwise continue to contribute to the fence’s degradation.
The Court orders:
The application is granted to the extent of the following orders.
The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 4 palms, including their root balls, along their rear boundary within 90 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The exhibits are retained.
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Vigliante
Feetham [2026] NSWLEC 1215