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……………………………….. Senior Member E Morrison REASONS FOR DECISION Introduction 1. The parties are neighbours over a back fence.

2. They are in dispute about a large hedge growing on the applicant’s (Mr Colbert) side of the fence.

3. Mr Colbert claims the respondent (Mr Adams) trimmed the hedge without permission and it is now damaged beyond repair. His claim is brought as actions in trespass to property, private nuisance and negligence.

4. Mr Adams agrees he trimmed the hedge. However, he disputes the claim and says the hedge will regrow. Mr Adams also filed a counter claim for the cost of replacing his damaged bird netting, which he says was caused by leaves and twigs falling from the overhanging hedge.

The ACAT proceedings, submissions and evidence

5. On 23 December 2024, Mr Colbert filed his originating application.

6. On 5 February 2025, Mr Adams filed his response and counterclaim.

7. On 24 February 2025, I conducted a directions hearing. Both parties attended. I listed the matter for final hearing and made directions to prepare for the hearing.

8. On 2 April 2025, Mr Adams filed an interim application seeking non-disclosure orders in relation to a witness statement.

9. On 12 May 2025, I conducted a directions hearing. Only Mr Colbert attended. I dismissed the interim application and made further directions to prepare for the final hearing.

10. On 23 June 2025, I conducted the final hearing. Both parties attended and gave oral evidence. Mr Colbert called three witnesses. Mr Adams did not call any witnesses. I reserved my decision at the end of the hearing.

11. On 7 July 2025, I made an in chambers order giving leave for Mr Adams to refile documents which he had previously given to Mr Colbert but which did not appear to have been lodged with the Tribunal. I also gave leave for the parties to file a short, written submission in relation to that material.

12. In making my decision, I have considered all material filed in these proceedings, the parties’ oral submissions and evidence, and the evidence given by Mr Colbert’s witnesses.

13. I am comfortably satisfied both parties have been afforded a fair opportunity to present their cases and to draw the Tribunal’s attention to the material they intended to rely upon in these proceedings.

Scope of these proceedings

14. The Colbert initially claimed $10,000 in damages for the cost of replacing the hedge and personal injury.

15. Mr Adams initially claimed $10,787 in damages for the cost of replacing his bird netting and personal injury.

16. At the first directions hearing, I advised the parties that neither had complied with the pre-court procedures set out in Chapter 5 of the Civil Law (Wrongs) Act 2022 in relation to their respective personal injury claims and so this aspect of each claim would be dismissed.

17. Mr Colbert, in a subsequent submission dated 22 April 2025, sought alternative orders as follows: (a) a new fence determination pursuant to section 10 of the Common Boundaries Act 1981 (Common Boundaries Act) under which Mr Adams would pay to Mr Colbert the sum of $6.560.16 for the supply and installation of a 2100mm Colorbond fence and two-layer sleeper wall; (b) reimbursement of the ACAT filing fee; (c) an order requiring Mr Adams to remove cameras and any other recording devices within the vicinity of the fence line; (d) an injunction preventing Mr Adams from further trespassing on Mr Colbert’s property and causing damage to the hedge; and (e) any other relief considered appropriate by the Tribunal for Mr Colbert’s loss of quiet enjoyment.

18. The alternative orders did not include any claim for damages.

19. At the beginning of the hearing, I advised the parties that I was not satisfied the Tribunal had jurisdiction to make an order to replace the fence under the current application. This was because neither party is an ‘occupier’ of land, as defined in section 2 of the Common Boundaries Act: (a) Mr Colbert owns a unit in a townhouse complex. The owners corporation holds the Crown lease for at least some of the land upon which the boundary fence is located and is therefore the ‘occupier’ of that parcel of land for the 1 purpose of the Common Boundaries Act. The owners corporation was not a party to these proceedings.

(b) Mr Adams occupies the adjoining premises as a tenant under a residential tenancy agreement. The ‘occupier’ of that parcel of land for the purpose of the Common Boundaries Act is the person who holds the Crown lease, most likely his lessor.

20. I also noted that section 4(3) of the Common Boundaries Act provides that an occupier of land may only apply to the tribunal for a new fence determination after certain consultation and notification requirements have been met. There was no evidence that those requirements had been complied with.

21. In reply, Mr Colbert advised he would revert to his original application for damages in relation to nuisance, trespass to property and negligence. I gave leave for him to orally amend his application to seek damages of $3,500 for the estimated cost of replacing 14 plants at $250 each, plus the filing fee of $183.

22. Mr Adams also revised his counter claim to seek damages of $4,200 for the estimated cost of replacing his bird netting, plus the filing fee of $83.

1 Unit Titles Act 2001, s 13; Units Plan No. 4487

23. The Tribunal’s jurisdiction to hear and determine this matter as set out in the originating application and counter claim arises under Part 4 of the ACT Civil and Administrative Tribunal Act 2008.

The relevant facts

24. Mr Colbert is a unit owner in a townhouse complex. The complex contains three townhouses that are located along a driveway that runs from the street to the back fence. Mr Colbert owns unit 3, which is the furthest townhouse from the street and is bounded by the back fence. The fence is common property owned by the owners corporation. Approximately ¼ of the fence is located at the end of the driveway and in a common garden area. The remaining ¾ is located within Mr Colbert’s back yard. A smaller fence marks the boundary between Mr Colbert’s back yard and the common garden areas.

25. Mr Adams is a private tenant on the other side of the back fence. At the time, the property was managed by Hodgkinson Real Estate (the managing agent).

26. The hedge: (a) was planted by Mr Colbert in 2018 or 2019; (b) runs along the length of the back fence; and (c) consists of approximately 19 pittosporum plants – 14 plants are in Mr Colbert’s backyard and 5 plants are on common property for the complex.

27. On 20 November 2024, the managing agent sent a text message to Mr Colbert advising he had received complaints about the hedge. The managing agent asked Mr Colbert to contact Mr Adams to organise trimming the hedge. The managing agent provided photos, which showed a thick green hedge that had grown well above the fence height and was overhanging the fence in some places. The photos also showed Mr Adams’ vegetable beds adjacent to the fence with bird netting neatly in place. The photos did not show any holes or damage to the bird netting.

28. In the following days, Mr Colbert sent several text messages in reply to the managing agent in which he agreed to trim the hedge provided he had clear access. He advised he did not agree to pay for a gardener. The managing agent’s text messages to Mr Colbert included a statement that Mr Adams was an older person and could not undertake the trimming himself.

29. On 1 December 2024, Mr Colbert sent a text message to Mr Adams asking to organise a time to obtain access to Mr Adams’ property to trim the hedge.

30. On or about the same day, Mr Colbert trimmed part of the hedge back to the fence. The trimmed sections of fence were now vertical with the fence line.

31. Mr Colbert could not complete all the trimming in one day, partly because the bird netting covering Mr Adams’ vegetable patch was obstructing access to that section of hedge.

32. Mr Colbert advised Mr Adams he could complete it in a week or so, once he had returned from a weekend away. He left the hedge trimmer at Mr Adams’ property. The parties agreed Mr Colbert would finish the trimming once Mr Adams had removed his bird netting to allow clear access to the remaining section of hedge.

33. On 8 December 2024, Mr Colbert and his wife returned from their short holiday. They observed the hedge had been trimmed approximately 30-40 centimetres past the fence line into Mr Colbert’s side of the fence and at a steep angle.

Private nuisance

34. Mr Colbert’s action is for private nuisance, trespass to land and negligence. Most of his submissions were directed to the tort of nuisance which I will deal with first and in more detail. Whether the claim is considered as a direct trespass onto Mr Colbert’s land, as a private nuisance causing damage to Mr Colbert’s property, or negligence, matters little as the result is the same.

35. One of the leading authorities for private nuisance is the NSW Land and 2 Environment Court’s decision of Robson v Leischke. The principles set out in that decision have been adopted and applied by this tribunal on multiple

2 [2008] NSWLEC 152; also see Boyes v Thompson [2024] NSWSC 1325 occasions, notably in the decisions of Tipsy Bull Pty Ltd v Foundry Enterprises 3 4 Pty Ltd trading as Hopscotch Bar, and Sephton v O’Rourke.

36. To succeed in his claim in private nuisance, Mr Colbert must satisfy the Tribunal of three things: (a) Mr Colbert has standing to bring the action; (b) there has been a substantial or material interference to Mr Colbert’s enjoyment or use of his land; and (c) the interference was (or is) unreasonable. 5

37. The standard of proof is the balance of probabilities, or more likely than not.

38. I am satisfied Mr Colbert has standing to bring this action in so far as it concerns the hedging plants situated in his back yard. Any claim about the plants situated on common property would need to be brought by the owners corporation.

Mr Colbert’s case

39. There are several elements to Mr Colbert’s nuisance claim.

40. First, Mr Colbert argues the hedge has been damaged beyond repair.

41. Second, Mr Colbert argues the hedge trimming has substantially reduced his 6 private enjoyment of his land. He gave evidence that: (a) There is less auditory protection in his backyard. Mr Colbert says he can hear more noise from Mr Adams’ side of the fence and beyond. He said Mr Adams can now ‘walk along the fence line, loudly running me down’. (b) There is less visual privacy in his backyard. Mr Colbert says he is now exposed to Mr Adams’ surveillance equipment, which is pointing towards Mr Colbert’s backyard.

3 [2019] ACAT 51 4 [2021] ACAT 40 5 Briginshaw v Briginshaw [1938] HCA 34 6 Transcript of proceedings, page 33, lines 36-44 (c) There is an aesthetic impact for Mr Colbert. Mr Colbert stated that Mr Adams’ yard ‘is not the nicest, prettiest yard to look into’ which is no longer adequately screened by the hedge. (d) Mr Colbert is now exposed to Mr Adams’ floodlight shining into his windows at night, including his bedroom window.

42. As to the extent of damage, Mr Colbert relied on a witness statement and oral evidence given at the hearing by Mr Steenbergen from Adapt Landscaping. In his statement, Mr Steenbergen: (a) observed the hedge had been severely cut back with a large number of its main branches cut; and (b) gave the opinion that, due to the level of damage, the hedge was unlikely to recover and may die.

43. Mr Steenbergen was called to give oral evidence at the hearing and was cross examined. He gave evidence that the hedge was trimmed with ‘jagged’ cuts, 15 7 to 30 centimetres from the fence line. In relation to the prospect of recovery, Mr Steenbergen stated that: Yes, from – from what I could see, the hedge had been cut back a lot further than what you would normally cut a Pittosporum hedge to, so generally speaking you leave it so that there's at least some green on that side. From what I could see, it was cut back beyond where the green 8 leaves were. and that: Particular types of plants can grow back from what’s called old growth, so that’s the larger branches and limbs of the – the tree or shrub. Pittosporums only tend to grow back from soft wood so they may get small sprouts, but they generally don’t recover to the full base thickness that 9 they were previously.

44. However, Mr Steenbergen went on to say: So potentially they grow back, and I guess it’s very subjective as to how thick it comes back from – from either side. There’s potential that the plants are stressed out by it and that can cause fungal disease or scale or

7 Transcript of proceedings, page 59, lines 41-44 8 Transcript of proceedings, page 51, lines 25-29 9 Transcript of proceedings, page 49, lines 42-47 something along those lines. Whether or not that can be attributed to the 10 hedging or not, I don't know. Mr Adams’ position

45. Mr Adams confirmed at the hearing that: (a) he trimmed the hedge while Mr Colbert was away, and had to use a 11 chainsaw because the hedge was too thick for the hedge trimmer; (b) he retrimmed sections of hedge that had been trimmed by Mr Colbert the week prior, plus the untrimmed sections next to his vegie patch. He did this 12 by standing on a milk box; and (c) he installed the floodlight and surveillance equipment after the hedge trimming took place, but there is ‘no impediment’ to Mr Colbert’s 13 backyard.

46. Mr Adams said the hedge was hanging 1.9m over the fence line and he was entitled to trim it. He said he was relying on an information sheet he found online that explains what a neighbour can and cannot do. The information sheet, which was filed with his material but did not identify the author, stated that: A neighbour can’t damage the hedge or excessively prune it.

47. In relation to cutting beyond the fence line, Mr Adams said that where he could, he cut the branches on top of the fence and once the ‘burden’ or weight of the 14 branches was released, they ‘sprung back’. Mr Adams advised he cut beyond the fence line in one section where he had to lean over the fence for a ‘safety 15 reason’. When asked for more information, Mr Adams advised the hedge trimmer was heavy and it agitated a medical condition which meant he ‘just could 16 not manage it the same as Joe did, especially when it got caught’.

10 Transcript of proceedings, page 60, lines 30-34 11 Transcript of proceedings, page 41, lines 19-22 12 Transcript of proceedings, page 143, line 47 13 Transcript of proceedings, page 144, lines 7-10 14 Transcript of proceedings, lines 54, lines 9-11 15 Transcript of proceedings, page 52, lines 42-43 16 Transcript of proceedings, page 123, lines 35-39

48. Mr Adams also said there was no nuisance because the hedge is not damaged beyond repair and it will regrow. He relied on a report from a horticulturalist working at the Heritage Nursery Yarralumla. The report stated that: Following a thorough examination of the Pittosporum hedge in question, it is my opinion the plants growing, where additional fencing has been installed will most likely make a full recovery within 12 months. There is already evidence of regrowth on the pruned stems and branches in this section. None of the Pittosporum in this section of fence line are dead, dying or at risk of dying at the time of my examination.

49. The report went on to state: If overhanging branches have been pruned, it is most likely the reason why thicker stems have been cut and why they have returned to their original vertical position. Excess weight has been removed from the long stems and is no longer causing them to be weighed down and overhand the fence.

50. Mr Adams also relied on an email he received from a landscaper at Greenscapes Landscaping. The email states: Upon viewing the rear hedge of Mr Adam’s house it is unlikely that the Pittosporums will die from the pruning undertaken.

51. The email went on to state that a ‘full recovery would be expected in time’ if the plants are cared for as advised.

52. Neither of Mr Adams’ experts were available for cross examination at the hearing.

Consideration

53. Where tree branches or vegetation overhangs the property of another person, that other person is entitled to remove the vegetation without notice. It is not necessary 17 to show the vegetation has caused, or is likely to cause, damage. This is because the encroachment is itself an actionable nuisance that the affected person is 18 entitled to reduce or remove. However, any removal of the offending vegetation cannot go beyond what is reasonably necessary.

17 See Lemmon v Webb [1895] AC 1 at [7] 18 Donnellan v Cadeddu [2021] NSWSC 1600 at [23]-[33] 19

54. The NSW Supreme Court decision of Medulla v Hameed had similar facts to this case. The Medullas shared a fence with the Hameeds. The Medullas had a large maple tree growing in their backyard, which had large branches overhanging the back fence into the Hameeds’ yard. The parties tried unsuccessfully to resolve the issue. The Medullas went on a holiday. Upon return, they found the maple tree severely cut back. A spiky plant which was not overhanging the fence had also been ‘trimmed’. Video footage showed Mr Hameed standing on top of the back fence and reaching into the Medullas’ yard with a chain saw, removing the maple branches and lopping the spiky plant. Mr Hameed then threw the leaves and refuse into the Medullas’ yard, which landed in their swimming pool and caused damage to the pool filter. The NSW Supreme Court upheld the Medullas’ claim for nuisance and trespass to land, finding that Mr Hameed’s gardening activities had gone: …well beyond what could be regarded as reasonable by way of trimming 20 the overhang of the tree on to the defendant’s land.

55. Similarly, in this case, I have determined that Mr Adams went beyond what was reasonably necessary to remove any nuisance caused by the remaining sections of hedge that were overhanding the fence.

56. First, he retrimmed sections of hedge that Mr Colbert had cut back and were no longer overhanging the fence. Second, he trimmed the hedge well past the fence line, and on a steep backward angle. This is shown in the photos and was confirmed by Mr Steenbergen at the hearing. The photos also show that thick branches have been cut off below the fence line, making it difficult to accept Mr Adams’ argument that the hedge simply ‘bounced back’ after it had been trimmed. Mr Adams was not entitled to trim the hedge beyond the fence line, and he caused unsightly damage in doing so.

57. The evidence also supports a finding that the hedge trimming has had a substantial and unreasonable impact on Mr Colbert’s privacy and enjoyment of his premises. Whilst it may have been reasonable for Mr Colbert to expect some change after trimming the hedge on Mr Adams’ side of the fence, I accept his claim that this

19 [2003] NSWSC 747 20 At [15] has been more significantly and unnecessarily impacted by the excessive cutting back. Mr Adams seemed to agree there are now gaps in the hedge and a photo taken at night clearly shows the floodlight beaming through the damaged hedge. Mr Adams also agreed he installed the surveillance equipment along the fence line, and Mr and Mrs Colbert both gave evidence as to the impact of that equipment on their feelings of privacy now that the hedge screening is very thin in places. This goes well beyond the ‘give and take’ that can be reasonably 21 expected between neighbours.

58. For these reasons, I have determined that Mr Adams has substantially and materially interfered with Mr Colbert’s enjoyment and use of his land.

59. I have also determined the interference was unreasonable. There was no evidence that the task was urgent and could not wait until Mr Colbert returned from his weekend away. There was no suggestion the remaining sections of overhanging hedge posed an imminent risk to health or safety. Rather, Mr Adams advised he ‘just wanted the job done’ because it was December and ‘coming up to planting 22 season’.

60. Mr Colbert has made out a case in private nuisance and is entitled to relief. I will address the sum of damages below.

Trespass to land

61. Trespass to land comprises a direct interference without lawful authority, 23 justification or excuse. In the ACT, the Civil Law (Wrongs) Act provides it is a defence to an action for trespass to land if the defendant establishes that: (a) the defendant does not claim any interest in the land; and (b) the trespass was because of negligence or was not intentional; and (c) the defendant made a reasonable offer to make amends to the plaintiff 24 before the action was brought.

21 Boyes v Thompson [2024] NSWSC 1325 22 Transcript of proceedings, page 128, lines 10-14 and line 19 23 Haliday v Nevill [1984] HCA 80 24 Section 141

62. Mr Colbert submitted that a trespass to land occurred when Mr Adams leaned over the fence to trim the hedge on his side.

63. Mr Colbert said he did not give Mr Adams permission to enter his land and trim the hedge, despite leaving the hedge trimmer at Mr Adam’s place in anticipation of returning to finish the job.

64. Mr Adams said he was entitled to trim the hedge because Mr Colbert left the trimmer with him. He also said he did not trespass on Mr Colbert’s land because his whole body did not go onto the other side of the fence, and that leaning over a fence is not trespass.

Consideration

65. The law of trespass does not require a person to put their whole body onto some else’s land. It simply requires a direct interference, which can be a physical 25 intrusion onto land or damage to another person’s property. There are similarities between the tort of trespass and private nuisance in this regard.

66. Whilst Mr Adams may have been entitled to trim the hedge on his side of the fence, and even if Mr Colbert did leave the equipment for that to occur, Mr Adams was not entitled to trim the hedge beyond the fence line and/or cause unreasonable damage in doing so. There was also no need to trim the sections that had been completed.

67. Mr Adams has not established any defence under section 141 of the Civil Law (Wrongs) Act. I am comfortably satisfied that Mr Adams intended to trim the hedge on Mr Colbert’s side of the boundary because he leaned over the fence and cut back sections that did not require trimming. Losing control of the hedge trimmer makes no difference. It also does not explain the damage above shoulder height. Even if I am wrong, there is no evidence that Mr Adams made a reasonable offer to make amends before the civil dispute application was filed. Instead, he installed a floodlight and surveillance equipment which caused further interference with Mr Colbert’s enjoyment of his land.

25 Plenty v Dillon [1991] HCA 5

68. I am satisfied Mr Adams has directly interfered with Mr Colbert’s land without legal authority, justification or excuse. The action for trespass to land is made out.

Negligence

69. It is unnecessary to consider the negligence claim in detail given my findings above. For completeness, however, I am satisfied that Mr Adams had an obligation to take reasonable care to avoid damaging the hedge when trimming it and he breached that duty by failing to act as a reasonable person in similar circumstances. It appears Mr Adams was aware of his physical limitations when he first asked the managing agent to have the hedge trimmed because he could not do it himself. If Mr Adams could not manage the equipment, he should not have undertaken the work in the first place.

70. On that basis, I am satisfied that the damage caused to the hedge was reasonably foreseeable and the applicant’s claim in negligence is also established.

What sum of damages is appropriate?

71. Mr Colbert’s amended claim sought damages for the cost of replacing 14 plants at $250 per plant. Mr Steenbergen confirmed that $250 is a reasonable estimate of the wholesale cost of mature plants, and does not include labour for removing existing plants, preparing the soil and installing new plants. At the hearing, Mr Adams did not dispute the estimate of 14 plants nor the cost of replacing them.

72. Ms Colbert gave oral evidence that new buds had started to appear on the trimmed sections of hedge, and Mr Colbert advised he had trimmed the other side of the hedge (facing his house) shortly before the hearing. I found it difficult to understand why Mr Colbert would trim the hedge on the other side during winter if he was so concerned about its survival. Mr Steenbergen opined the hedge could grow back but it was unclear how thick it would be and on what side, and there was an increased risk of disease.

73. I am not persuaded it is more likely than not that the hedge is damaged beyond repair and/or will die. However, I am comfortably satisfied on the evidence that the hedge will take a very long time to regrow. This means the nuisance is continuing but will decrease incrementally over time. In this regard, it is important to remember that the nuisance is not just the damage to the plants but also Mr Colbert’s diminished enjoyment of his land due to the unsightly hedge shape, and reduced privacy and auditory protection.

74. On balance, I have determined $3,500 to be an appropriate award of damages.

Mr Adams’ counterclaim

75. Mr Adams claimed $4,200 for the replacement cost of his bird netting. He argued that the damage was caused by twigs and leaves falling onto the netting from the overhanging hedge.

76. Mr Colbert disputed that the hedge caused damage to the netting. However, he advised he had given Mr Adams a roll of bird netting as a measure of good will, which Mr Adams agreed he had retained.

77. Mr Steenbergan gave oral evidence that pittosporum hedges will drop leaves from time to time, but not branches. He advised they not a deciduous plant and so they do not drop leaves or branches unless they are dying. Mr Steenbergan also gave the opinion that pittosporum leaves are small and only drop a small number of 26 leaves over the course of a year. Mr Adams did not challenge that opinion or rely on evidence to the contrary.

78. The photos filed by both parties are compelling. On 20 November 2024, the managing agent sent a text message to Mr Colbert with photos of the hedge and bird netting. The netting is clearly in-tact and with no holes or damage. By contrast, the photos taken by Mr Adams on 9 December 2024 and 14 January 2025 show the cut back hedge and significant damage to the bird netting.

79. The parties’ timelines are also helpful. Mr Adams agreed the section of hedge above his vegetable patch could not be trimmed on 1 December 2024 because Mr Colbert did not have clear access. Mr Adams needed to remove the netting first before that work could be done. This, combined with the before and after photos, suggests that the netting remained in-tact until the trimming was undertaken by Mr Adams a few days later.

26 Transcript of proceedings, page 49, lines 26-36

80. I am not persuaded on the evidence that it is more likely than not that the overhanging hedge caused damage to Mr Adams’ bird netting. Even if I am wrong, Mr Adams does not appear to have suffered any loss because he still has the roll of replacement netting that Mr Colbert gave him.

81. The counterclaim is dismissed.

……………………………….. Senior Member Morrison Date of hearing: 23 June 2025 Applicant: In person, self-represented Respondent: In person, self-represented