Background
Ms. McKeown owns a ground floor apartment in a strata plan in Albury, NSW, with a patio extending to a common boundary fence shared with Ms. Woeckel, who owns a cottage on the adjacent property. Two large Canary Island date palms (Phoenix canariensis) growing at the rear of Woeckel’s land exert considerable pressure against the approximately 1.4-meter metal boundary fence. The palms, estimated to be 20–30 years old with trunks about 2 meters tall, have damaged and distorted the fence panels, bending them toward McKeown’s property and tearing the metal. The palms’ fronds extend approximately 5 meters in all directions, encroaching onto McKeown’s dwelling roof and yard.
McKeown made multiple attempts to resolve the dispute over two years, including personal visits requesting palm removal and fence repair, along with letters and emails from her strata manager. Despite initial agreement to exchange quotes six months prior to the hearing, no action transpired. McKeown applied to the court under section 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking removal of the palms and replacement of the damaged fence.
The Court’s Holding
Acting Commissioner Douglas found that McKeown satisfied all jurisdictional requirements under the Trees Act. Although the service of court documents was informal (placed under the door rather than formally served), the respondent suffered no prejudice, having attended earlier hearings with adequate notice. McKeown had made reasonable efforts to reach agreement by making two personal visits and having her strata manager send multiple letters over two years—consistent with the law reform recommendations cited in *Robson v Leischke*.
The court found both date palms had caused damage to the common boundary fence and presented genuine risks of injury to persons. The sharp thorns along each frond (approximately 0.2 meters long) posed real danger—McKeown had required surgery to remove an embedded spine from her wrist. While the court acknowledged the palms’ contribution to privacy and limited wildlife habitat, it determined that pruning alone would provide only temporary relief. As the palms matured, secondary thickening at the trunk bases would almost certainly cause recurrence of fence damage, making removal necessary.
The court ordered the respondent to remove both date palms within 45 days and repair or replace damaged fence panels within 90 days. As an alternative, the parties may agree to install a new 1.8-meter Colorbond fence, with the respondent paying 70% of the cost and the applicant 30%, reflecting the natural wear on the existing fence, minor contribution from McKeown’s plants, and the higher cost of a standard replacement.
Key Takeaways
- Applicants under the Trees Act must demonstrate reasonable effort to reach agreement before court intervention; informal settlement attempts over time satisfy this requirement.
- Where tree damage is inevitable despite pruning due to structural growth, removal may be the appropriate remedy even if the tree provides privacy or environmental benefits.
- Risk of injury from sharp natural features (thorns) of mature trees constitutes actionable harm under section 10(2)(b) of the Trees Act.
- Costs for boundary fence damage are apportioned between parties based on causation, natural wear, and practical considerations of remediation versus replacement.
Why It Matters
This decision clarifies the evidentiary threshold for “reasonable effort” under the Trees Act, establishing that persistent, documented attempts to negotiate over months—not merely token gestures—satisfy the statutory requirement. The ruling reinforces that procedural informality in neighbor disputes will not defeat jurisdiction if no prejudice results, accommodating self-represented litigants while maintaining fairness.
Critically, the court’s analysis of mitigation through pruning versus removal recognizes that structural growth in mature trees may render pruning insufficient. This prevents tree owners from indefinitely resisting removal by offering minimal maintenance. The decision also illustrates the court’s balancing approach: while environmental and privacy benefits weigh in the Trees Act analysis (section 12), substantial ongoing property damage and injury risk prevail when the respondent has failed to maintain the trees despite years of notice.