Christensen v Austin

[2025] NSWLEC 1607

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Christensen v Austin [2025] NSWLEC 1607

Hearing dates:

10 March 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is approved in part. See orders at [141].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — damage to dividing fence — orders for tree removal — orders for fence replacement, and compensation

Legislation Cited:

Dividing Fences Act 1991 (NSW), s 7, 8, 13A

Limitation Act 1969 (NSW), s 14

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 6, 7, 8, 9,10,12

Uniform Civil Procedures Rules 2005, Sch 7

Cases Cited:

Bentley v Hinchen [2008] NSWLEC 1348

Chew v Frykberg [2025] NSWLEC 1355

Lewis v Tilney [2009] NSWLEC 1042

Osborne v Hook [2008] NSWLEC 1231

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Williams v Robertson [2022] NSWLEC 1118

Yared v Glenhurst Gardens [2002] NSWSC 11

Texts Cited:

Annotated Trees (Dispute Between Neighbours) Act 2006, 2013

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Mark Christensen (First Applicant)
Motoko Christensen (Second Applicant)
David Austin (First Respondent)
Katrina Austin (Second Respondent)

Representation:

Counsel:
M Christensen (Self-represented) (First Applicant)
M Christensen (Self-represented) (Second Applicant)
D Austin (Self-represented) (First Respondent)
K Austin (Self-represented) (Second Respondent)

File Number(s):

2024/451962

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: In a raised garden bed in the rear yard of the Austin’s Castlecrag property, a row of trees was growing beside a Besser block wall, which formed part of a side boundary shared with the Christensen’s. The trees comprised seven palms, and two Sweet Viburnums (Viburnum odoratissimum), growing near the Austin’s dwelling. The boundary was oriented north – south.

2. The Christensen's (the applicants) had asked the Austin’s (the respondents) to remove the trees, as they alleged their trunks and roots were cracking and displacing the boundary wall and blocking terracotta sewer and stormwater pipes.

3. The Christensen family had owned the property since the 1950’s, when the dwelling was constructed, and the terracotta pipes were installed. In or around 1967, an inground swimming pool was installed about 2.5 metres (m) from the common boundary. Between approximately 1990 – 2022, the property was occupied by tenants while the applicants resided overseas or in regional NSW.

4. In or around 1996, prior owners of the respondents’ property installed a semi-inground swimming pool parallel with the common boundary wall, that protruded above ground level by about 0.6m. Sometime later, prior owners established the garden and planted the trees between the pool and the wall, which the Austin’s inherited upon their occupation in 2007.

5. The applicants initially notified the respondents of wall damage in 2012. Though the parties intermittently negotiated repair or replacement of the wall since then, their relationship became acrimonious in the interim and they have been unable to find common ground.

6. Consequently, the Christensen's applied to the Court…