O'Neil v Pickford

[2025] NSWLEC 1638

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Neil v Pickford [2025] NSWLEC 1638

Hearing dates:

20 August 2025

Date of orders:

20 August 2025

Decision date:

20 August 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondents are to grind the tree stump that is closest to their rear boundary fence and remove all vegetation and fill along their side of the fence so that the fencing works below can be carried out without hindrance.

(3) Within 60 days of the date of these orders the applicant and respondents are to sign a fencing agreement with Dwyer Fencing to carry out the fencing works quoted by Dwyer Fencing in June 2024 for a 1.5 metre green (to match adjacent green fencing) Colourbond fence on steel posts in concrete footings with a rodent-proof rail or similar at the base of each panel. The fencing agreement is to show that the applicant will pay 40% and the respondents will pay 60% of the cost of the fencing works.

(4) The fencing works are then to be completed within 60 days of the date of these orders.

(5) The applicant and respondents are to allow all access required to their properties for completion of the fencing works during reasonable hours of the day.

(6) Each party is granted liberty to relist should circumstances prevent them meeting the timeframes in these orders.

(7) The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to boundary fence — stump grinding and fencing works

Legislation Cited:

Dividing Fences Act 1991 (NSW), s 13A

Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 4, 7, 9, 10, 12

Category:

Principal judgment

Parties:

Rachel Anne O’Neil (Applicant)
Raymond Francis Pickford (First Respondent)
Reginald Newbold Pickford (Second Respondent)
Keith Lawrence Pickford (Third Respondent)

Representation:

Counsel:
R O’Neill (Self-represented) (Applicant)
R Pickford (Self-represented) (First Respondent)
K Pickford (Self-represented) (Third Respondent)

File Number(s):

2025/63085

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Belmont North neighbours Rachel O’Neil (the applicant) and brothers Raymond, Reginald and Keith Pickford (the respondents) share a common boundary, being the rear boundary of each property, along which stands an aged, corrugated iron fence (the fence). Their adjoining side fences, and the fence along the continuation of the respondents’ rear boundary, are newer Colourbond material of various heights and colours. The shared fence is dilapidated. The parties agree that it needs to be replaced. Two large camphor laurel trees grew on the respondents’ property near the fence; one was so close that its buttress roots displaced the bottom of the fence. Ms O’Neil 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 the trees to be removed and the fence repaired. After receiving the application, the respondents removed the trees other than their stumps. The parties could not agree on the height and colour of a replacement fence, nor could they agree on who should pay for the fencing works. Fencing works cannot proceed until the boundary is cleared of one tree’s stump and its buttress roots.

2. At the onsite hearing on 20 August 2025, I inspected the fence and tree stumps and heard submissions from the parties, who were self-represented.

3. According to a title search dated 18 March 2025, included with Ms O’Neil’s amended application in Exhibit A, three Pickford brothers own the respondents’ property as tenants in common in equal shares. Reginald has passed and the Court has no information on the ownership of his share. For the purpose of this judgment, I treat Raymond and Keith as the respondents.

Framework for this decision

4. The trees are on land that adjoins Ms O’Neil’s land. The orders she seeks are ones the Court can make at s 9 of the Trees Act if the Court is satisfied that the trees have damaged Ms O’Neil’s property, being the dividing fence. The Court can make orders for repairing a fence beyond the section damaged by a tree: s 13A of the Dividing Fences Act 1991 (NSW). Even though only the trees’ stumps remain, they are still taken to be situated on the land for the purposes of this application: s 4(4) of the Trees Act.

5. Relevant issues to be determined in these proceedings are:

• Whether Ms O’Neil has made a reasonable effort to reach agreement with the Pickford brothers and given the required notice of the application: s 10(1) of the Trees Act.

• Whether the trees have caused damage to the dividing fence: s 10(2)(a).

• If so, how consideration of relevant matters at s 12 of the Trees Act should influence any orders to be made.

Reasonable effort to reach agreement

6. Ms O’Neil wrote to the respondents in July 2023 and December 2023, raising her concerns that the respondents’ trees were damaging her fence. She sent and received text messages with Raymond Pickford. She obtained quotes for removing the trees and replacing the fence. Ms O’Neil had difficulty getting the respondents to agree to an outcome. I am satisfied that Ms O’Neil has made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the trees damaged the fence

7. One of the Pickfords’ camphor laurel trees grew against the fence. Its buttress roots grew against and under the fence, pushing the bottom section of the fence out of shape. The tree has damaged the fence.

Relevant matters at s 12

8. The dividing fence is old; its wooden rails are rotting; it is in poor condition even where it is not damaged by the tree. The parties want to replace the fence. The Dividing Fences Act 1991 (NSW), at s 13A, enables the Court to make orders for the entire dividing fence when part of it is damaged by a tree that is the subject of proceedings under the Trees Act.

9. The parties have differing preferences on the colour and height of a replacement Colourbond fence. The Pickfords want a green fence, 1.5 m high, similar to a fence on the boundary they share with another neighbour. Although Ms O’Neil would prefer a grey fence that is 1.8 m tall, she expressed a willingness to go with the Pickfords’ preferences.

10. Although the dividing fence is old and dilapidated, the Pickfords’ trees have likely hastened the need for its replacement. It seems reasonable that they contribute slightly more than Ms O’Neil to the cost of replacing the fence. I have determined that a fair apportionment of fencing costs would be 60% from the Pickfords and 40% from Ms O’Neil. The parties agreed on using one of the fencing quotes that Ms O’Neil has already obtained.

Orders

11. The Court orders:

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

2. Within 30 days of the date of these orders, the respondents are to grind the tree stump that is closest to their rear boundary fence and remove all vegetation and fill along their side of the fence so that the fencing works below can be carried out without hindrance.

3. Within 60 days of the date of these orders the applicant and respondents are to sign a fencing agreement with Dwyer Fencing to carry out the fencing works quoted by Dwyer Fencing in June 2024 for a 1.5 metre green (to match adjacent green fencing) Colourbond fence on steel posts in concrete footings with a rodent-proof rail or similar at the base of each panel. The fencing agreement is to show that the applicant will pay 40% and the respondents will pay 60% of the cost of the fencing works.

4. The fencing works are then to be completed within 60 days of the date of these orders.

5. The applicant and respondents are to allow all access required to their properties for completion of the fencing works during reasonable hours of the day.

6. Each party is granted liberty to relist should circumstances prevent them meeting the timeframes in these orders.

7. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 September 2025