Johnson v Redman

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9, 10, 12

Category: Principal judgment

Parties: Cherie Johnson (Applicant)
Jody Redman (Respondent)

Representation: Counsel:
C Johnson (Self-represented) (Applicant)
J Redman (Self-represented) (Respondent)

File Number(s): 2025/249867

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER**:** A camellia tree (the tree) approximately 3–4 metres tall grows in the back garden of the Caves Beach property owned by Jody Redman (the respondent), close to her back fence. Cherie Johnson (the applicant) owns and lives at the adjoining property behind Ms Redman’s property. Ms Johnson 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 Ms Redman to remove the tree, repair the dividing fence and to install a retaining wall if needed.

2. The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The orders Ms Johnson seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit. However, the Court must not make any order unless it is satisfied, first, that Ms Johnson has made a reasonable effort to reach agreement with Ms Redman, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to the her property or injury to a person: s 10(2) of the Trees Act. Before making any orders, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

4. Ms Johnson has knocked on Ms Redman’s door, written her letters, and applied for mediation through the Community Justice Centres, all with no response from Ms Redman. I am satisfied that Ms Johnson made a reasonable effort to reach agreement with Ms Redman.

The tree has caused and is likely to cause damage

Submissions

5. Ms Johnson submitted that the tree has pushed the fence towards her dwelling and must be removed to prevent further damage. She has concreted her small courtyard, with a raised section next to the fence to assist with retaining the higher ground of Ms Redman’s land. Despite this, soil or debris still comes through to her property beneath the fence, so she wants Ms Johnson to build a retaining wall.

6. Ms Redman submitted that her tree contributes to her enjoyment of her back yard. She is willing to repair the fence as needed. She has lived here only since May 2021, at which time the camellia existed and may have already damaged the fence.

Findings

7. The tree is not large but is close enough to the dividing steel-panel fence that its branches are in contact with the fence. Fence panels nearest the tree are out of vertical alignment. This appears to result from a combination of the fence’s inadequate footings and tree’s branches pushing against the fence. I saw no tree roots or mounding of soil that would indicate the tree’s roots were causing the fence’s displacement.

8. Further damage can be prevented by pruning the tree so its branches are clear of the fence. Tree removal is not required. An order will be made for Ms Redman to prune the tree. She acknowledged the need to maintain the tree’s branches clear of the fence and stated her intention to do so.

9. Although the fence’s footings appear inadequate, the fence might not be out of alignment if not for the tree. An order will be made for Ms Redman to engage a fencing contractor to straighten the fence and to install some form of retaining support along the base of the fence to prevent soil moving onto Ms Johnson’s land. The level change at the common boundary is not significant.

Consideration of s 12 matters

10. I have considered the matters at s 12 of the Trees Act and find the orders below are appropriate to the circumstances.

Orders

11. The Court orders:

12. The application is granted to the extent of the following orders.

13. Within 30 days of the date of these orders the respondent is to prune the camellia so all branches and foliage are at least 300 mm clear of the dividing fence shared with the applicant.

14. The respondent is to engage and pay for a suitably experienced fencing contractor to straighten the dividing fence shared with the applicant and to install adequate retaining support along its base to prevent ground falling into the applicant’s property.

15. The works in Order (3) are to be completed within 60 days of the date of these orders.

16. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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