Colbert v Adams (Civil Dispute) - [2025] ACAT 70

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COLBERT V ADAMS (Civil Dispute) [2025] ACAT 70

XD 1647/2024
Catchwords: CIVIL DISPUTE – private nuisance – dispute between neighbours – where respondent trimmed hedge overhanging his back fence – some hedge plants planted on common property of owners corporation – applicant’s standing to bring action – significant damage to hedge – reduced visual and auditory privacy to applicant – impact on the applicant caused by floodlight and surveillance equipment installed by respondent after the hedge trimming – substantial and unreasonable interference with use and enjoyment of land – nominal damages awarded

CIVIL DISPUTE – trespass to land – where respondent leaned over fence to trim hedge beyond the boundary line – direct interference without legal justification or excuse – statutory defence not available
FENCE DISPUTE – where applicant sought a new fence determination under the Common Boundaries Act 1991 as an alternative to damages – applicant is a unit owner in a owners corporation – respondent is a tenant in adjoining premises – no jurisdiction to make order sought

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, Part 4
Civil Law (Wrongs) Act 2002, Chapter 5, s 141
Common Boundaries Act 1991, ss 2, 4(3)
Unit Titles Act 2001, s 13

Cases cited:Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
Boyes v Thompson [2024] NSWSC 1325
Briginshaw v Briginshaw [1930] HCA 34
Donnellan v Cadeddu [2021] NSWSC 1600
Haliday v Nevill [1984] HCA 80
Medullla v Abdul Hameed [2003] NSWSC 747
Plenty v Dillon [1991] HCA 5
Robson v Leischke [2008] NSWLEC 152
Sephton v O’Rourke [2021] ACAT 40
Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51

Tribunal:Senior Member E Morrison

Date of Orders:  7 October 2025
Date of Reasons for Decision:      7 October 2025
Date of Publication:  14 October 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1647/2024

BETWEEN:

JOSEPH COLBERT

Applicant

AND:

DENYS ADAMS
Respondent

TRIBUNAL:Senior Member E Morrison

DATE:7 October 2025

ORDER

Upon being satisfied the applicant’s claims in private nuisance and trespass to land are made out, the Tribunal orders that:

The respondent is to pay to the applicant the sum of $3,683, comprised of:
(a)$3,500 damages; and
(b)$183 tribunal filing fee.
The sum in order 1 is to be paid in full by 4pm on 4 November 2025.
The respondent’s counterclaim is dismissed.
………………………………..

Senior Member E Morrison

REASONS FOR DECISION

Introduction

The parties are neighbours over a back fence.
They are in dispute about a large hedge growing on the applicant’s (Mr Colbert) side of the fence.
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.
Mr Adams agrees he trimmed the hedge. However, he disputes the claim and says the hedge will regrow. Mr Adams also filed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ACAT 70
Decision Date: 7 October 2025

CaseChat Overview and Summary

In the case of Colbert v Adams (Civil Dispute), the plaintiff, Mr Colbert, brought a claim against his neighbour, Mr Adams, for private nuisance and trespass to land. The dispute arose after Mr Adams trimmed hedges along the shared fence, causing substantial and unreasonable impact on Mr Colbert's privacy and enjoyment of his property. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The primary legal issues for the tribunal to decide were whether Mr Adams' actions in trimming the hedge constituted a nuisance and trespass to land, and if so, what the appropriate remedy would be. The court examined the extent to which Mr Adams' actions were reasonable in the circumstances, considering the principle that a person is entitled to remove vegetation overhanging their property without notice, but the removal must not go beyond what is reasonably necessary.

The tribunal found that Mr Adams had gone beyond what was reasonably necessary to remove the nuisance caused by the overhanging hedge. He had retrimmed sections of hedge that were no longer overhanging the fence and cut the hedge well past the fence line and at a steep backward angle, causing unsightly damage. The evidence supported the claim that the hedge trimming had a substantial and unreasonable impact on Mr Colbert's privacy and enjoyment of his premises. The tribunal dismissed Mr Adams' counterclaim.

The tribunal ordered that Mr Adams pay Mr Colbert $3,683, comprising $3,500 in damages and $183 in tribunal filing fees. The payment was to be made by 4pm on 4 November 2025. The tribunal also dismissed Mr Adams' counterclaim.

Orders

Orders of the court

Upon being satisfied the applicant’s claims in private nuisance and trespass to land are made out, the Tribunal orders that:

The respondent is to pay to the applicant the sum of $3,683, comprised of:

(a) $3,500 damages; and

(b) $183 tribunal filing fee.

The sum in order 1 is to be paid in full by 4pm on 4 November 2025.

The respondent’s counterclaim is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Neither of Mr Adams’ experts were available for cross examination at the hearing.Consideration 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 to show the vegetation has caused, or is likely to cause, damage.[17] This is because the encroachment is itself an actionable nuisance that the affected person is entitled to reduce or remove.[18] 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] The NSW Supreme Court decision of Medulla v Hameed[19] 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 the overhang of the tree on to the defendant’s land.[20][19] [2003] NSWSC 747[20] At [15] 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. 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. 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 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 expected between neighbours.[21][21] Boyes v Thompson [2024] NSWSC 1325