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[2026] ACAT 53
ACT Civil and Administrative Tribunal
2026-09-16
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE OWNERS - UNIT PLAN 4487 v ADAMS (Civil Dispute) [2026] ACAT 53 XD 1571/2025
Catchwords: CIVIL DISPUTE – private nuisance – trespass to land – negligence – dispute between owners of neighbouring premises – where respondent trimmed hedge overhanging his back fence – decision relating to hedge plants located on common property of owners corporation – applicant’s claim established – damages discounted to reflect other factors contributing to poor regrowth – counterclaim dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48, Part 4 Civil Law (Wrongs) Act 2002 s 141 Cases cited: Blackshaw v Campbell (No.2) [2016] ACAT 108 Boyes v Thompson [2024] NSWSC 1325 Colbert v Adams [2025] ACAT 70 Jones v Dunkel [1959] HCA 8 Lemmon v Webb [1895] AC 1 Medulla v Hameed [2003] NSWSC 747 Robson v Leischke [2008] NSWLEC 152 Sephton v O’Rourke [2021] ACAT 40 Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd [2019] ACAT 51
Tribunal: Senior Member E Morrison
Date of Orders: 9 September 2026 Date of Reasons for Decision: 9 September 2026 Date of Publication: 16 September 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1571/2025
BETWEEN: THE OWNERS – UNIT PLAN 4487 Applicant AND: DENYS ADAMS Respondent
TRIBUNAL: Senior Member E Morrison
DATE: 9 September 2026
ORDER
The respondent is to pay to the applicant the sum of $1,054, comprised of: (a) $875 damages; and (b) $179 ACAT filing fee.
The sum in order 1 is to be paid in full by 5:00 pm on 5 October 2026.
The respondent’s counterclaim is dismissed.
……………………………….. Senior Member E Morrison REASONS FOR DECISION Introduction 1. The applicant is the owners corporation for townhouse complex in Canberra (the Applicant).
The back fence to the townhouse complex is also the back fence to the residential premises that is rented by the respondent, Mr Adams.
A large pittosporum hedge is planted on the Applicant’s side of the fence.
The Applicant claims that Mr Adams trimmed the hedge without permission and it is now damaged beyond repair. The Applicant seeks damages of $1,750 (being the replacement cost of $250 for seven plants), plus the ACAT filing fee. The claim is brought as actions in trespass to land, negligence and private nuisance.
Mr Adams agrees he trimmed the hedge. However, he disputes that his hedge trimming was unreasonable and says it will regrow.
Mr Adams also filed a counterclaim (amended on 17 April 2026) for $12,250 for time and labour, horticultural fees, preparing documents, obstruction and interference with access, and loss of amenity and quiet enjoyment of his backyard. I understand Mr Adams’ counterclaim to be a claim in private nuisance for loss and damage which he says he suffered as a result of the overhanging hedge and defending these proceedings.
In a previous ACAT matter (XD 1647/2024), I made orders about the section of hedge located in the private backyard of unit 3. The published decision is available on the ACAT website: Colbert v Adams [2025] ACAT 70.
This decision relates only to the section of hedge located on the Applicant’s common property.
I have found the Applicant’s claim in trespass, negligence and private nuisance to be established.
I have not awarded the full sum of damages claimed by the Applicant because I am not satisfied the hedge is damaged beyond repair. I have reduced the sum of damages to account for other factors which I have determined to be also contributing to the slow and/or poor regrowth of this section of hedge.
The ACAT proceedings, submissions and evidence
Directions hearings were conducted on 18 February 2026 and 8 May 2026 to prepare the matter for hearing. I made orders for filing material and confirmed with the parties that material on the file for XD 1647/2024 and AA 101/2025 did not automatically form part of the file in these proceedings. The parties were advised that they needed to lodge a fresh bundle of any submissions, evidence and other supporting material they wanted to rely upon in these proceedings. I also made an order that any recent photos of the hedge needed to be date stamped in such a way that the Tribunal could verify the date on which they were taken.
The hearing was conducted on 15 May 2026.
The Applicant was represented by Mr Colbert (who was the applicant in XD 1647/2024). Mr Adams was self-represented.
Mr Colbert and Mr Adams gave evidence and made oral submissions. Mr Adams called a horticulturalist, Mr Phillip Selmes from Burgess Horticultural Services, to give evidence as an expert witness.
I have considered all material filed in these proceedings, the parties’ oral submissions and evidence, and the evidence and information given by Mr Selmes.
I am satisfied that both parties have been afforded a fair opportunity to present their case and respond to the issues raised.
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 (ACAT Act).
The relevant facts
My key findings of fact are set out below.
My findings mostly align with my findings of fact in XD 1647/2024 and the timeline of events is the same. However, there are some minor differences because this case relates to a different part of the hedge.
The Applicant is the owners corporation for a townhouse complex. The complex contains three townhouses that are located along a driveway that runs from the street to the back boundary fence. Mr Colbert owns unit 3 which is the last townhouse at the end of the driveway and adjacent to the boundary fence.
The fence forms part of the common property owned by the Applicant. Mr Adam’s backyard is on the other side of the fence.
A large hedge is growing along the fence line, on the Applicant’s side. The hedge was planted in 2018-19 and consists of 19 pittosporum plants.
Approximately one quarter of the hedge is located at the end of the driveway in the common garden area owned by the Applicant. This section of hedge consists 1 of five plants (the common property plants). This decision relates to those plants.
Mr Adams is a private tenant on the other side of the fence. In late 2024, the property was managed by Hodgkinson Real Estate (the managing agent).
On 20 November 2024, the managing agent sent a text message to Mr Colbert advising he had received complaints about the foliage overhanging the fence. 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.
1 In XD 1647/2024, I accepted Mr Colbert’s evidence that the hedge consisted of a total of 19 pittosporum plants – 14 in his backyard and 5 on common property. I awarded damages to Mr Colbert based on that calculation. In these proceedings, Mr Colbert has lodged a submission on behalf of the Applicant seeking damages to replace seven common property plants instead of five. I have not disturbed my earlier finding and proceed on the basis that there are five common property plants.
In the following days, Mr Colbert sent several text messages to the managing agent in which he agreed to trim the overhanging foliage 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.
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.
On or about the same day, Mr Colbert trimmed part of the hedge back to the fence. The photos show that the trimmed sections of hedge were vertical and in line with the fence.
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. This section of hedge contained the common property plants located in the Applicant’s garden.
Mr Colbert advised Mr Adams he could finish the trimming in a week or so, once he had returned from a weekend away. He left the hedge trimmer with Mr Adams. The parties agreed Mr Colbert would return to finish the trimming once Mr Adams had removed his bird netting to allow clear access to the remaining section of hedge.
On 8 December 2024, Mr Colbert and his wife returned from their short holiday. They observed the hedge had been trimmed past the fence line, including the common property plants.
During the hearing in this matter, Mr Adams: (a) agreed that he had used a chain saw to prune the common property plants; (b) said he needed to trim the common property plants because Mr Colbert had not finished trimming them before going away; however, Mr Adams also agreed that Mr Colbert said he would finish the trimming upon his return; (c) said he had to reach across the fence to get to the common property plants because the foliage was so thick; (d) said he cut two of the common property plants beyond the fenceline by approximately 100mm – 200mm. He said he observed that, once he took the load off them, they bounced back, describing this as “simple physics”. Once he saw this happen, he decided not to lean over the fence to cut back the other plants; (e) advised he did not cut the tops off any of the plants because he was worried the foliage and branches would fall onto his property; (f) did not dispute the photos shown in Attachment 3O to the Applicant’s bundle showing thick stems had been cut to approximately 35 cm behind the fence and 30 cm below the top of the fence; and (g) denied that the common property plants were damaged beyond repair and stated he has observed regrowth on them.
Mr Steenbergen’s evidence
The Applicant relied on a witness statement provided by Mr Steenbergen, who is the owner of Adapt Landscaping. The statement was dated 14 March 2025 and was prepared for the proceedings in XD 1647/2024.
In his statement, Mr Steenbergen recalled that: (a) the hedge had been “severely cut back with a large number of its main branches cut”; and (b) due to the level of damage, the hedge was “unlikely to recover and may die”.
Mr Steenbergen did not provide an updated statement and was not available to answer questions at the hearing. It was unclear whether his observations related to the common property plants or Mr Colbert’s section of hedge, or whether his earlier opinion about the prospects of recovery remained the same notwithstanding 14 months had passed since the last inspection.
Mr Selmes’ evidence
Mr Adams relied on a report prepared by Mr Phillip Selemes from Burgess Horticultural Services, dated 12 December 2025.
Mr Selmes also attended and gave evidence at the hearing. He answered questions asked by Mr Adams, Mr Colbert and myself, and we all found him to be very helpful.
Mr Selmes is an arborist and horticulturalist, with a background in environmental science and resource management. He has a Bachelor’s degree in Applied Science, Conservation Parks and Heritage, and trade level qualifications in horticulture. Mr Selmes is currently working as a contractor tree surgeon.
Mr Selmes produced a report at the hearing which he said he had prepared himself. That document was significantly different to the document that Mr Adams had lodged with his bundle. Mr Adams could not explain the difference.
As a result, I have given no weight to the report filed by Mr Adams and relied on the oral evidence and information provided by Mr Selmes at the hearing. Mr Selmes had a very good recollection of his site visit and strong knowledge of the growth behaviours of pittosporum plants. I found Mr Selmes to be honest and reliable.
Mr Selmes confirmed the common property plants are pittosporum plants and that they are an appropriate species for a hedge. He advised the species is characterised by rapid growth, dense foliage and high resistance to pathogens, pests and drought.
Mr Selmes advised that pittosporums: (a) can handle a “savage pruning”; (b) require regular pruning otherwise they can “get away”; (c) must be deliberately cultivated to produce more foliage as stress from regular pruning will produce epidermic growth; (d) tend to put on vertical growth (that is, on the top of the plants) as a younger plant, then lateral growth (on the sides) in the direction of sunlight as the plant matures; and (e) the density tends to be on the outside of the plant, with limited to no foliage on the skeleton or inside of the plant.
Mr Selmes remembered inspecting the common property plants using a ladder on Mr Adams’ side of the fence. Mr Selmes recalled observing: (a) there was limited to no lateral regrowth on the side of the plants facing towards Mr Adams’ backyard; (b) the plants appeared to be in poor condition. They showed low density foliage, were not uniform height, back was peeling off some of the cuts with one plant in poor health and unlikely to recover. Two pathogens were observed; (c) the change in the elevation of the land correlated to the health of the plants – they showed poorer health as the land sloped downhill. The plants towards the left side of the fence line (from Mr Adams’ property) were recovering more quickly than the plants on the right side; (d) the plants had been pruned beyond the fence line; and (e) the cut stems were appropriately 20-25 cm in diameter. This was large for a pittosporum and forms part of the skeleton or framework for the plant.
These observations were consistent with the photos filed by both parties.
Mr Selmes gave his opinion that: (a) the size of the cut limbs, being so close to the fence, suggest that the foliage would have been overhanging the fence by more than one meter; (b) it was not surprising that there was no foliage on the inside of the plants at the location of the cuts; (c) pittosporum plants are not generally expected to degrade after pruning – the nature of the species means they respond well to pruning and are expected to regrow; (d) if the damage to the plants was caused by the pruning, he would have expected the plants to all recover uniformly; (e) the different health status of the plants, which correlates to the sloping land, suggest that other factors are contributing to the decline of these plants including lack of nutrients, water and light; (f) vertical growth on four plants means they are recovering slowly; and (g) the combined effect of over-pruning and poor growing conditions could be causing the fifth plant to decline, but it was difficult to tell in this case.
I asked Mr Selmes to look at the photos of the common property plants filed by the parties. In relation to a photo taken on 9 April 2026, Mr Selmes observed that it showed vigorous, light green regrowth on the top of the plants with “some stems erupting”. He advised that the stems without growth are alive and transporting chemicals to the top of the plant. This means the plant will eventually grow but it could take 12-18 months, depending on other factors mentioned above such as nutrients, water and light.
Finally, Mr Selmes reiterated that the plants need regular pruning to encourage new growth.
The applicant’s claim in negligence
Part 4 of the Civil Law (Wrongs) Act 2002 sets out the elements that the Applicant must establish to succeed in its claim for negligence: (a) Mr Adams must owe a duty of care to the applicant. The standard of care is that of a reasonable person in Mr Adams’ position who has all of the information that he either had, or ought reasonably to have had, when he trimmed the hedge on 1 December 2024. (b) In deciding whether a reasonable person would have taken precautions against a risk of harm, the Tribunal must consider relevant matters including the probability that harm would happen if precautions were not taken, the likely seriousness of the harm, the burden of taking precautions and the social utility of the risky activity. (c) Mr Adams’ conduct must have caused the damage or harm. This must be proved by the Applicant on the balance of probabilities (or more likely than not). 2
Mr Adams was entitled to trim any foliage overhanging the fence. The ‘before’ photos show the hedge encroaching into his backyard. Mr Selmes’ expert opinion
2 See Lemmon v Webb [1895] AC 1 at [7] was that the two common property plants were likely to have been protruding by approximately one metre over the fence.
However, Mr Adams had a duty to take reasonable care to avoid damaging the hedge when he trimmed it.
I am satisfied that Mr Adams knew his physical limitations meant he could not safely or effectively trim the hedge himself – this is why he asked the managing agent to contact Mr Colbert in November 2024.
I am also satisfied that Mr Adams knew that Mr Colbert intended to finish pruning the common property plants once he returned from his holiday.
Mr Adams advised that he needed to stand on a box to reach over the fence, that the chain saw was very heavy and that he lost control of it as a result.
A reasonable person in Mr Adams’ position would have foreseen the risk that trimming the hedge with a heavy chainsaw was likely to cause harm, either to himself or the Applicant’s property.
The overhanging foliage would have been a great source of frustration for Mr Adams, however, I am comfortably satisfied that a reasonable person in his position would have waited until Mr Colbert returned to finish the job. They had agreed that Mr Colbert would return in approximately one week and there was no urgent need to remove the overhanging foliage in the meantime to prevent a risk to Mr Adams’ personal safety or protect against property damage. The ‘before’ photos show the bird netting securely in place with no holes or damage and pittosporum plants do not drop heavy limbs and branches. So, it cannot be said that the trimming was urgently required.
Accordingly, I am comfortably satisfied that the damage which Mr Adams caused to the common property plants was reasonably foreseeable and that Mr Adams ought to have taken precautions against the risk of harm. The Applicant’s claim in negligence is established, subject to my comments below on the quantum of damages. The Applicant’s claim for trespass to land
Trespass to land requires a direct interference without lawful authority, justification or excuse. The interference can be a physical intrusion or damage to another person’s property. A person does not need to put their whole body onto 3 someone else’s land to commit trespass.
The photos of the common property plants show cuts to thick stems 30 cm below the fenceline and 30 cm into the Applicant’s premises. The branches are thick and the location of the cut stems suggest it would have taken considerable effort to chop them off. I do not accept Mr Adams’ argument that the plants ‘bounced back’ after he had trimmed them and, instead, I find it more likely than not that Mr Adams leaned over the fence to prune the plants.
Mr Adams agreed that Mr Colbert said he would finish pruning the hedge after his holiday. Even if Mr Adams was entitled to trim the hedge to the fenceline, he was not given permission to lean over the fence and cut the plants back further.
Mr Adams’ conduct constituted a direct interference without legal authority, justification or excuse.
In the ACT, section 141 of the Civil Law (Wrongs) Act 2002 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 before the action was brought.
Mr Adams has not established a defence because he has not made a reasonable offer to make amends to the Applicant.
The action for trespass to land is established.
3 Haliday v Nevill [1984] HCA 80; Plenty v Dillon [1991] HCA 5 Private nuisance
In XD 1647/2024 I set out the principles for private nuisance, and the leading 4 authorities. These are Robson v Leischke, Tipsy Bull Pty Ltd v Foundry 5 6 7 Enterprises Pty Ltd, Blackshaw v Campbell (No.2), and Sephton v O’Rourke.
To succeed, the Applicant must satisfy the Tribunal, on the balance of probabilities, that: (a) Mr Adams caused or permitted a substantial or material interference to the enjoyment or use of the land by occupants at the Applicant’s townhouse complex; and (b) the interference was unreasonable.
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 8 to show the vegetation has caused, or is likely to cause, damage. However, any removal of the offending vegetation cannot go beyond what is reasonably 9 necessary. In the present case, as I’ve previously stated, Mr Adams was entitled to trim the common property plants back to the fenceline but not beyond it.
The Applicant says that the hedge is now more sparse and less attractive than it was before the hedge trimming.
The Applicant claims that Mr Adams substantially reduced the enjoyment of common property by the townhouse residents because there is a loss of privacy, auditory protection and visual amenity.
Applying the relevant principles, I am satisfied that: (a) Mr Adams went beyond what was reasonably necessary to remove any nuisance caused by the overhanding foliage.
4 [2008] NSWLEC 152; see also Boyes v Thompson [2024] NSWSC 1325 5 [2019] ACAT 51 6 [2016] ACAT 108 7 [2021] ACAT 40 8 See Lemmon v Webb [1895] AC 1 at [7] 9 Medulla v Hameed [2003] NSWSC 747 (b) By cutting the plants beyond the fenceline, he has caused unsightly damage and gaps in the hedge, reducing privacy and noise protection. This goes beyond the ‘give and take’ that can be reasonably expected between 10 neighbours. (c) The interference was unreasonable. I have determined already that the pruning was not urgent and could wait until Mr Colbert returned from his weekend away. There is no evidence of an imminent risk to Mr Adam’s health, safety or the protection of his property that needed to be mitigated by earlier intervention. (d) Even if earlier intervention was required, given Mr Adams’ physical limitations, he ought to have asked someone else to perform the task for him.
Assessment of damages to be paid by Mr Adams
The Applicant claimed that Mr Adams should pay for the cost of replacing each plant that he had pruned. The Applicant relied on Mr Steenbergen’s statement that the hedge was damaged beyond repair and may die.
I am not persuaded that Mr Adams should bear the full cost of replacing the common property plants.
Colour photos taken by the managing agent before 1 December 2024 show thick green foliage overhanging the fence in the corner of Mr Adams’ backyard where the common property plants are located.
Colour photos (undated) taken shortly after the trimming show cuts to thick stems well into the woody growth. These are close-up photos which do not give a broader perspective of the whole plant.
In May 2025, Mr Steenbergen formed the view that the hedge was ‘unlikely to recover’ and ‘may die’. However, the Applicant did not provide an updated statement from Mr Steenbergen for this hearing and was not available to answer
10 Boyes v Thompson [2024] NSWSC 1325 questions. It was unclear whether his opinion related to the common property plants and if so, whether his assessment of the long-term damage to the plants may have changed 14 months later after a full growing season.
Colour photos taken by Mr Adams in January 2026 and April 2026 show green foliage on the top of those plants with woody lateral patches in some parts.
Three black and white photos taken by Mr Colbert on 8 May 2026 show at least one of the plants is still woody with little to no lateral growth and a gap between the plants. However, these are close-up photos and do not give the same, broad perspective as the ‘before’ photos. There is a fourth black and white photo taken from the driveway of the townhouse complex which shows the exposed powerlines and reduced privacy screening above the fence.
I was surprised that the Applicant did not provide broader perspective photos that would have assisted the Tribunal to compare the current condition of the plants with the earlier photos. This was discussed at the directions hearing on 8 May 2026 and both parties were on notice that the absence of reliable, updated 11 information may impact their respective claims. I have drawn a Jones v Dunkel inference that comparative photos would not have assisted the Applicant’s case.
During the hearing, Mr Selmes confirmed that four of the common property plants are still alive and have new growth up high. His opinion was that these plants will start to put on lateral growth in the next 12-18 months, but appropriate pruning will be necessary to encourage that growth. He also considered that the sloping block, plant location, soil quality, access to light and water are also likely to be impacting on regrowth.
Mr Selmes advised that the fifth plant is unhealthy and may die. However, his view is that this plant may have died anyway (due to the factors mentioned above) but that Mr Adams’ trimming sped up the process.
In the absence of contrary evidence, I have relied on Mr Selmes’ expert opinion and have determined it is more likely than not that:
11 [1959] HCA 8 (a) four of the five common property plants have not been damaged beyond repair; (b) the slow and inconsistent growth of those plants is partially the result of other factors including under-pruning, soil condition and location; (c) whilst the fifth plant appears to be dying, this is not solely due to the pruning.
Mr Adams’ counterclaim
Mr Adams filed a counterclaim for $12,250 for time and labour, horticultural fees, preparing documents, obstruction and interference with access, and loss of amenity and quiet enjoyment of his backyard. Mr Adams’ counterclaim was a claim in private nuisance for inconvenience, loss and damage he suffered because of the overhanging foliage and defending these proceedings.
Mr Adams also sought an order requiring the Applicant to prevent future encroachment.
Applying the principles set out at paragraphs [64]-[66] above: (a) The common property plants were overhanging the fence by approximately one metre, which was an intrusion into Mr Adams’ backyard.
(b) However, the ‘before’ photos show Mr Adams’ bird netting in-tact with reasonable access to his vegetable patch.
(c) Pittosporum plants are non-deciduous and do not have large, lateral limbs which can fall to the ground. The evidence does not support a finding that it is more likely than not that the damage to Mr Adams’ bird netting, who appeared after the hedge trimming, was caused by leaves and debris falling naturally from the plants.
Accordingly, I am not satisfied on the balance of probabilities that the overhanging foliage constituted a substantial and material interference with Mr Adams’ enjoyment or use of his land, nor that the interference was unreasonable.
In relation to the claim for costs, the ACAT is a ‘no cost’ jurisdiction. Parties must bear their own costs in preparing their materials and attending Tribunal 12 proceedings.
I have declined to make an order requiring the Applicant to prevent future encroachment. If Mr Adams has a concern with his neighbour, this should be raised with his property manager and the lessor at first instance.
ACAT filing fee
The Tribunal has found in favour of the Applicant and the counterclaim is dismissed.
In addition to the award of damages, an order is made requiring Mr Adams to pay the Applicant’s filing fee pursuant to section 48(2)(a)(i) of the ACAT Act.
……………………………….. Senior Member E Morrison
Date of hearing: 15 May 2026 Applicant: Mr Colbert, Authorised representative Respondent: In person, self-represented
12 Unless the law provides otherwise: ACT Civil and Administrative Tribunal Act 2008, s 48.
THE OWNERS - UNIT PLAN 4487
ADAMS (Civil Dispute)