Neighbour who cut a hedge past the fence line ordered to pay $1,054 to townhouse owners corporation (ACAT, 2026)

What happened

The applicant was the owners corporation (the body that manages shared areas) for a Canberra complex of three townhouses. The complex's back fence was also the back fence of a house rented by the respondent, a private tenant. A pittosporum hedge of 19 plants, planted in 2018-19, grew along the fence on the complex's side. Five of those plants were in a common garden area owned by the owners corporation. This decision was only about those five plants. An earlier tribunal decision had dealt with the part of the hedge in the private backyard of unit 3.

In November 2024 the tenant's managing agent told the owner of unit 3 about complaints that the hedge was overhanging the fence. The agent said the tenant was an older person and could not do the trimming himself. Around 1 December 2024 the owner of unit 3 trimmed part of the hedge back to the fence. He could not reach the common property section because the tenant's bird netting over a vegetable patch was in the way. The two agreed that he would come back to finish the job in a week or so, after a weekend away, once the netting had been moved. He left his hedge trimmer with the tenant.

When the owner of unit 3 returned on 8 December 2024, the hedge had been cut past the fence line, including the common property plants. At the hearing the tenant agreed he had used a chainsaw. He said he stood on a box to reach over the fence, that the chainsaw was very heavy and that he lost control of it. He did not dispute photos showing thick stems cut about 35 cm behind the fence and 30 cm below the top of the fence.

A horticulturalist gave evidence for the tenant at the hearing. He said pittosporums handle hard pruning and are expected to regrow. Four of the five plants were alive and putting on new growth at the top, and they could fill out on the sides in 12 to 18 months with proper pruning. The fifth plant was unhealthy and might die. He said the plants' health got worse as the land sloped downhill. In his view this pointed to other causes as well, such as poor nutrients, water and light. The tribunal found him honest and reliable.

What each side wanted

The owners corporation said the hedge had been damaged beyond repair. It claimed $1,750, which was a replacement cost of $250 per plant for seven plants, plus the filing fee. It relied on trespass to land, negligence and private nuisance. The tribunal had already found in the earlier case that there were five common property plants, and it kept to that finding. The tenant agreed he had trimmed the hedge, but he said the trimming was reasonable and the plants would regrow. He filed a counterclaim for $12,250 for time and labour, horticultural fees, preparing documents, obstruction of access and loss of enjoyment of his backyard. He also asked for an order that the owners corporation prevent future encroachment.

What the tribunal decided

The tribunal ordered the tenant to pay the owners corporation $1,054. This was made up of $875 in damages and the $179 ACAT filing fee. The full sum must be paid by 5:00 pm on 5 October 2026.

The tenant's counterclaim was dismissed. The tribunal also declined to order the owners corporation to prevent future encroachment.

Why the tribunal decided it that way

On negligence, the tribunal applied Part 4 of the Civil Law (Wrongs) Act 2002. It accepted that the tenant was entitled to trim foliage overhanging his side of the fence. However, he had a duty to take reasonable care not to damage the hedge when he did so. He knew his physical limits, and he knew the owner of unit 3 would be back in about a week to finish the job. Nothing urgent required the trimming: the bird netting was intact in the 'before' photos, and pittosporums do not drop heavy branches. A reasonable person would have seen that using a heavy chainsaw over the fence risked harm, and would have waited.

On trespass to land, which means directly interfering with someone else's land without permission or lawful excuse, the tribunal did not accept that the plants had 'bounced back' after being cut. Given how thick the stems were and where the cuts were, it found the tenant more likely than not leaned over the fence to cut them. Section 141 of the Civil Law (Wrongs) Act 2002 gives a defence in some cases, but only if the person made a reasonable offer to make amends before the case was brought. The tenant had not made one, so the defence did not apply.

On private nuisance, which means an unreasonable and substantial interference with someone's use or enjoyment of their land, the tribunal said a neighbour may remove overhanging vegetation back to the boundary without notice, but not beyond what is reasonably necessary. Cutting past the fence line left gaps and reduced privacy and noise screening. That went beyond the normal 'give and take' between neighbours. The tenant's counterclaim in nuisance failed. The overhang was about one metre, but the photos showed his netting intact and his vegetable patch accessible, and the evidence did not show the hedge caused the later damage to the netting. ACAT is generally a 'no costs' tribunal, so each side pays its own preparation costs.

On damages, the tribunal relied on the horticulturalist's evidence. The landscaper's statement for the owners corporation had been prepared for the earlier case and was not updated, and he was not available to answer questions. The owners corporation also did not supply wide-angle photos comparing the hedge before and after, even though the parties were told at a directions hearing that this kind of evidence mattered. The tribunal inferred that such photos would not have helped the owners corporation's case. It found four plants were not damaged beyond repair and their slow growth was partly due to other factors, and that the fifth plant was not dying solely because of the pruning. It allowed $250 for each of the four plants less 25% ($750), and $250 for the fifth plant less 50% ($125), a total of $875.

What this means if you are in a similar position

If you are in a similar position, this decision shows how the tribunal treats overhanging plants. A neighbour may cut back branches or foliage that cross onto their land, but only to the boundary. Reaching over the fence and cutting further, especially when the matter is not urgent and another arrangement has already been agreed, can be treated as negligence, trespass and nuisance all at once. The tribunal also looked at whether the person had offered to make amends before the case started.

The decision also shows that compensation depends on the evidence of actual loss. The full replacement cost was not awarded, because expert evidence showed most plants were recovering and that other conditions were affecting growth. Up-to-date evidence that can be tested at the hearing, and clear dated photos taken from the same angle before and after, carried real weight. Older evidence that had not been updated did not. Claims for your own time and for preparing documents are generally not recoverable at ACAT.

In disputes like this, most people start by setting out the problem and the amount sought in a written demand or notice to the other side. If that does not resolve it, they lodge an application with the tribunal.

How to apply: our step-by-step guide to a ACAT application. More decisions: ACAT cases and neighbour disputes.

Source: THE OWNERS – UNIT PLAN 4487 v ADAMS (Civil Dispute) [2026] ACAT 53 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.