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[2025] NSWLEC 1804
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-18
Galwey AC
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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: Clinton v Leo [2025] NSWLEC 1804
Hearing dates: 18 August 2025
Date of orders: 18 November 2025
Decision date: 18 November 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision: The Court orders:
(1) The application is granted only to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably insured and experienced gardener or horticulturist to remove all ivy growing along the common boundary shared with the applicant within 30 days of the date of these orders. All parts of the ivy are to be removed from both sides of the dividing fence.
(3) The respondent is to take all reasonable steps to prevent the ivy regrowing on his property.
(4) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the damaged fence section, being the section of fence approximately 11 metres long roughly east of the respondent’s pool and south of the applicant’s dwelling. Fencepost footings are to be replaced with footings adequate to support the fence, considering its height and weight. Brushwood panels are to be repaired or replaced as necessary to achieve a result consistent with remaining sections of brushwood fencing.
(5) The respondent is to give the applicant 7 days notice of the works in Orders (2) and (4).
(6) The applicant is to allow any access required for completion of the works in Orders (2) and (4) during reasonable hours of the day.
(7) Should the respondent wish to grow another vine on the brushwood fence, the vine must not be ivy and the respondent must maintain the vine in a manner that avoids damage to the brushwood fence.
(8) The exhibits are returned, other than Exhibit A.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — damage caused by neighbouring trees — ivy on the dividing fence — whether ivy is on adjoining land — whether damaged property is on the applicant’s land — whether the ivy needs to be removed — whether the fence needs repair or replacement — who should pay for the works
Legislation Cited: Dividing Fences Act 1991 (NSW), s 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 8, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2024 (NSW), s 4
Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Category: Principal judgment
Parties: Lindsey Clinton (Applicant)
Henry Leo (Respondent)
Representation: Counsel:
L Clinton (Self-represented) (Applicant)
A Khoury (Respondent)
Solicitors:
Dong & Partners (Respondent)
File Number(s): 2025/195421
Publication restriction: Nil
COMMISSIONER**:** Seaforth neighbours Lindsey Clinton (the applicant) and Henry Leo (the respondent) share a long common boundary along the sides of their respective properties. A tall brushwood fence (the brushwood fence) runs along most of the boundary. Mr Clinton wants part or all of the brushwood fence replaced at Mr Leo’s expense because, he says, ivy vines (the ivy) growing on Mr Leo’s property have damaged the fence. Mr Clinton also wants the ivy removed. Mr Leo was willing to carry out fencing works if the parties shared the cost of those works, which Mr Clinton was unwilling to do. Several issues remain in dispute between them:
Whether the brushwood fence is on the boundary;
Whether the ivy is on the applicant’s or the respondent’s property;
Whether the ivy needs to be removed;
Whether the brushwood fence should be repaired or replaced;
If the brushwood fence is to be replaced, whether it should be with brushwood, steel panels, or timber palings;
Whether fencing works are required for a specified length of the fence, or for the entire boundary fence;
Who should pay the cost of any fencing works.
Mr Clinton has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for Mr Leo to remove ivy from the fence and to repair or replace the fence.
The onsite hearing allowed the Court to inspect the ivy, the brushwood fence and relevant features of both properties. Mr Clinton was self-represented; Mr Khoury represented Mr Leo.
At s 7 of the Trees Act, an “…owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.” The wording at s 7 – ‘Property on the land’ follows ‘an owner of land’ – requires the property that is the subject of damage – past, present or future – to be on the applicant’s land: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [162].
Mr Clinton wrote in his application (at Question 4 of Form H) that the brushwood fence was erected inside the respondent’s property, behind an older paling fence, by the previous owner of the respondent’s property. His diagram at Question 2 shows the brushwood fence close to the boundary, deviating along its length so that it appears partly on the respondent’s land and partly on the applicant’s land.
Mr Leo, in his affidavit of 26 July 2025, stated that the brushwood fence is entirely on Mr Clinton’s land. However the survey plan at Annexure A to his affidavit shows the brushwood fence to be located on the common boundary.
With the benefit of onsite observations, along with the survey plan provided by Mr Leo, I find that the brushwood fence is on, or roughly on, the common boundary between the two properties. For the purposes of s 7 of the Trees Act, it is property on Mr Clinton’s land. Equally, it is property on Mr Leo’s land.
Mr Clinton submitted that the ivy vines grow out of the ground on Mr Leo’s land, while Mr Leo stated that they are on Mr Clinton’s land. I observed the numerous large stems of the ivy connecting with the ground on Mr Leo’s side of the brushwood fence, which is on, or roughly on, the common boundary. For this reason, I am satisfied that the ivy is principally situated on Mr Leo’s land, which adjoins Mr Clinton’s land.
Being a vine, ivy is a tree for the purposes of the Trees Act: s 4 of the Trees (Disputes Between Neighbours) Regulation 2024 (NSW).
It follows that Mr Clinton can apply, as he has, for orders to remedy, restrain or prevent damage to the brushwood fence as a consequence of the ivy.
Mr Clinton claims that a section of the brushwood fence (the damaged fence section) has been damaged by the ivy. He submitted that the damaged fence section is unnecessarily tall and was not made to support the weight of the ivy. The fence posts footings are inadequate, and the soil is soft from the respondent’s irrigation, so that the ivy’s mass has broken one post and caused three others, along with the damaged fence section, to lean into Mr Clinton’s property where it is now supported by his trees.
Mr Khoury submitted that the damaged fence section is indeed in poor condition and requires repair, but disputed that the ivy is the principal cause of damage. The fence’s footings were inadequate and should be replaced.
The Court needs only to be satisfied at s 10(2)(a) of the Trees Act that the ivy has damaged the brushwood fence, not that it is the only cause, nor even the principal cause, of the damage. It appears that the brushwood fence was not designed to support the ivy’s mass. The ivy is vigorous and has woody stems and thick foliage growing on the brushwood fence, which it relies on fully for its support. The ivy has contributed to the brushwood fence’s condition. I am satisfied that the ivy has caused damage to the damaged fence section.
The damaged fence section highlighted by Mr Clinton is approximately 11 metres long. Ivy grows on other parts of the brushwood fence along the boundary. For the same reasons that ivy has caused damage to the damaged fence section, it is also likely in the near future to cause damage to other parts of the brushwood fence.
Mr Clinton did not suggest that other sections are already damaged, and the Court was not taken to other sections of the brushwood fence. Nevertheless, Mr Clinton suggested during submissions that he might want the entire length of brushwood fence removed and replaced with steel panel fencing. Because that was not part of his application, and the need for this is unclear, I have not considered replacement of the entire brushwood fence in this decision, and no orders are being made under s 13A of the Dividing Fences Act 1991 (NSW).
The ivy has caused, and is likely in the near future to cause, damage to the applicant’s property. The Court can make orders, after considering the matters at s 12 of the Trees Act.
The ivy is on Mr Leo’s land, close to the common boundary. It grows over and covers the dividing fence, which is the property of both Mr Clinton and Mr Leo.
Pruning or removing the ivy would not require consent from Northern Beaches Council as it is less than 5 metres tall.
The ivy would tolerate and would grow back from any pruning, if pruning is ordered.
Mr Khoury opined that the ivy provides an attractive screen along the boundary and is highly valued by Mr Leo. He submitted that the ivy could be pruned to allow fence repair and then maintained to prevent further damage. Mr Clinton submitted that Mr Leo’s row of magnolias screens the damaged fence section from Mr Leo’s dwelling, so Mr Leo benefits little from the ivy. To my mind, the adverse impact of the ivy on the fence outweighs its benefits to Mr Leo.
Factors contributing to the condition of the damaged section of fence include the weight of the ivy, the fence posts inadequate footings, and possibly the surrounding soil structure. It is possible to maintain ivy on a fence or wall by regularly pruning it close to the fence or wall, maintaining only a thin screen of foliage. That is not how Mr Leo’s ivy has been maintained – it has been allowed to develop a thick body of stems and foliage, adding excessive weight and force to the fence. That is, Mr Leo has demonstrated that he either cannot, or will not, maintain the ivy in a manner that would avoid damage to the brushwood fence. For this reason, orders will be made to remove all the ivy – ivy that is responsible for damaging the damaged fence section, and ivy that is likely to damage other sections of the brushwood fence – and to prevent it regrowing.
Mr Khoury submitted that the damaged fence section could be repaired. His proposed solution includes pruning the ivy and repairing the brushwood fence, with costs shared by the parties. He suggested that, if the damaged fence section needs to be replaced, it should be replaced with brushwood fencing to match the existing fence.
Mr Clinton submitted that the damaged fence section must be removed and replaced. He wants it replaced with steel panel fencing, and would like the remainder of the brushwood fence to be likewise replaced with steel panel fencing.
I observed that the brushwood fencing material appears to remain functional, but the fence posts’ footings are failing under the forces from the ivy’s mass. Rather than remove and replace the fence unnecessarily, it might be possible to replace the footings. If it turns out that some brushwood panels require replacement, this could be done at the same time. Because brushwood fencing continues along other sections of the dividing fence, replacement with brushwood fencing, rather than steel panels, should be preferred.
The Court orders:
The application is granted only to the extent of the following orders.
The respondent is to engage and pay for a suitably insured and experienced gardener or horticulturist to remove all ivy growing along the common boundary shared with the applicant within 30 days of the date of these orders. All parts of the ivy are to be removed from both sides of the dividing fence.
The respondent is to take all reasonable steps to prevent the ivy regrowing on his property.
Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the damaged fence section, being the section of fence approximately 11 metres long roughly east of the respondent’s pool and south of the applicant’s dwelling. Fencepost footings are to be replaced with footings adequate to support the fence, considering its height and weight. Brushwood panels are to be repaired or replaced as necessary to achieve a result consistent with remaining sections of brushwood fencing.
The respondent is to give the applicant 7 days notice of the works in Orders (2) and (4).
The applicant is to allow any access required for completion of the works in Orders (2) and (4) during reasonable hours of the day.
Should the respondent wish to grow another vine on the brushwood fence, the vine must not be ivy and the respondent must maintain the vine in a manner that avoids damage to the brushwood fence.
The exhibits are returned, other than Exhibit A.
**********
Clinton
Leo [2025] NSWLEC 1804
(2008) 72 NSWLR 98