Fisher v Corley[2025] QCAT 141

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The parties are neighbours. As a preliminary matter, it is noted that the Tribunal has the respondents previously recorded as “Barry Edward Overton” and “Juliet Corley”. A titles search reveals that the property is registered to Barrie Edward Overton and Juliet Rosemary Corley. To avoid any doubt, the respondents’ names will be amended on the Tribunal’s record to be the names registered with Titles Queensland.

2. [2]
   The respondents have a number of trees growing on their property which the applicant claims are affecting his property. In April 2023, the applicant lodged an application in the Tribunal seeking orders that:

   1. All trees are trimmed so they do not encroach on his property;
   2. 26 trees are reduced in height to no taller than 2.5 metres, and they are maintained at that height;
   3. The respondents minimise interference from fallen leaves and branches by not allowing branches and leaves to “bunch up” against the chain wire common boundary fence line;
   4. The respondents take action to prevent leaves and branches falling from a structure on their property onto the applicant’s property;
   5. The respondents be accountable for the timely removal of all leaves, branches and other debris from their trees accumulating on his property; and
   6. The respondents maintain all trees on their property which will, if left unmaintained, interfere with his property or equipment parked on his property.
3. [3]
   In support of his application, the applicant states:

   1. He is in a dispute with the respondents regarding over 30 trees on the respondents’ property planted immediately against or in the vicinity of the common boundary. The trees range in height from 2.8 – approximately 10 metres tall, and some of the branches overhang his property. 
   2. The trees complained of are as follows:
   1. Tree Species 1 – Hibiscus Rose Flake – currently 2.8 metres high, 4 metres long and overhanging the boundary by over 70 centimetres and so impacting his property by approximately 6 square metres. These trees detract from the scenic value of his property.
   2. Tree Species 2 – Phyllanthus cuscutiflorus – 26 trees along the common boundary. They may present a risk to the fence and/or the shed structure on the applicant’s property in the event of a cyclone or other extreme                                     weather event. In their current overgrown state, they detract from the scenic value of his property. Tree species 2 cause substantial, ongoing and unreasonable interference with his use and enjoyment of his land and equipment parked on his property in the vicinity of the trees by dropping significant volumes of leaves and branches. The fallen leaves restrict sunlight preventing normal lawn growth in the vicinity of the trees. The trees have several protruding roots which the lawnmower strikes. The trees stand over 5 metres tall and span the length of the common boundary for 17.5 metres, overhanging the boundary by at least 1.2 metres and protruding an estimate of 30 square metres along the common boundary.
   3. Tree Species 3 – Eucalyptus Tree (‘Bloodwood’) - presents a risk to a structure on his property in the event of a cyclone or other extreme weather event and causes substantial, ongoing and unreasonable interference with his use and enjoyment of his land and equipment parked on his property in the vicinity of the trees by dropping significant volumes of leaves and branches. The tree is approximately 10 metres tall and overhangs approximately 3.5 metres over his property.
   4. Tree Species 4 – Corymbia torelliana (‘Cadaghi’) – 2 trees with branches which are known as brittle and may pose a risk to the shed on his property in the event of a cyclone or other extreme weather event. The tree drops leaves on a structure on the respondents’ property only 10 centimetres from the common boundary and the leaves and debris then slides down onto his property. Tree species 4 causes substantial, ongoing and unreasonable interference with his use and enjoyment of his land and equipment parked on his property in the vicinity of the trees by dropping significant volumes of leaves and branches. The trees stand 9 – 10 metres tall and one has branches overhanging onto his property by 1 – 2 metres. 
   5. Tree Species 5 – Glochidion – may pose a risk to a structure on his property in the event of a cyclone or other extreme weather event and causes substantial, ongoing and unreasonable interference with his use and enjoyment of his land and equipment parked on his property in the vicinity of the trees by dropping leaves and branches. The tree stands approximately 8 metres tall and has branches overhanging his property by approximately 3 metres.
   3. In February 2023, the respondents trimmed some of their vegetation after he issued a formal notice to them.
   4. His property is 887.86 m².
   5. The trees were on the respondents’ land when he purchased his property in 2019.
   6. He has asked the respondents to address issues with debris from their trees since 2019.
4. [4]
   On 9 August 2023, the Tribunal made directions allowing the applicant to choose either to engage his own arborist or pay the Tribunal $1,000 towards the cost of a Tribunal appointed tree assessor. The applicant chose to engage his own arborist and I have a report from Tablelands Treelopping. The author of the report has a B. Applied Science Agriculture.
5. [5]
   The report is dated 28 August 2023 and, in summary, states:

   1. Hibiscus Rose Flake – Recommendation – plants are healthy. Small branches impose on the fence. Trim branches back to the fence line.
   2. Phyllanthus cuscutiflorus – Recommendation – the trees are in good health, but some stems are impacting the fence and protruding into the adjourning yard. Trim stems and branches back to the fence line.
   3. 3 x Eucalyptus leptophleba – Recommendation – all three trees are in good health. Two trees pose no safety risk and have minimal impact on the adjoining property. No action is required for these trees. One tree overhangs the adjoining property by approximately three metres. Trim branches back to the boundary line.
   4. Corymbia torelliana – Recommendation – this tree is in good health and has minimal impact on the adjoining property. No action required. This species is partly deciduous and will drop a large percentage of its leaves during the dry season.
   5. Eucalyptus platyphylla (not identified in the applicant’s application) – Recommendation – this tree is in good health, poses no safety risk and has minimal impact on the adjoining property. No action required. This species is semi-deciduous and will drop a large percentage of its leave during the dry season.
   6. Glochidion – this tree is healthy and poses no safety risk. One major branch protrudes into the adjoining property. Remove one branch.
6. [6]
   On 3 May 2024, the applicant filed further documentation which included a request that orders made by the Tribunal include an order that roots extending from trees on the respondents’ property onto his property be removed. The applicant has highlighted in some photographs the roots he is complaining of, and says they interfere with his mower when he is mowing the lawn. The applicant says that he has painted the roots white so that he can see them when he is mowing. Given that the applicant, on his evidence, can’t see the roots clearly unless they are painted, I am not satisfied that the roots cause substantial, ongoing and unreasonable interference with his use and enjoyment of his land. To the extent that he must take extra care when mowing, I am not satisfied that any interference is substantial.
7. [7]
   Much of the material provided by the parties is not relevant to this application. The material contains accusations and denials of anti-social behaviour towards each other and details of disputes for resolution in other forums. As these matters are not relevant to my decision-making, I will not refer further to them.
8. [8]
   On 14 June 2024, the applicant lodged an application seeking directions that some of the material filed by the respondents be “struck out”. His submission attached to the application appear to be submissions that no weight should be attached to the submission of the respondents as they are not supported by evidence. As stated above, many of the matters important to the parties are not relevant here and will not be taken into account. I will dismiss the application for miscellaneous matters filed by the applicant but will take his submissions into account in determining this matter so far as they are relevant.

THE LEGISLATION

9. [9]
   The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute does arise, the legislation facilitates the resolution of that dispute.^[1]
10. [10]
    Under the Act, the Tribunal has broad powers to hear and decide matters when a tree is affecting a neighbour’s land at the date of the application to the Tribunal.^[2] The Tribunal may make appropriate orders:

1. to prevent serious injury to any person; or

2. to remedy, restrain or prevent:

1. serious damage to the neighbour’s land or any property on the neighbour’s land; or

2. substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land.^[3]

11. [11]
    I am satisfied that the parties are neighbours, their lands are adjoined, and that the trees are “trees” as defined in the legislation.
12. [12]
    The Tribunal may make orders if the applicants’ land is affected by a tree. There are limited circumstances in which their land may be affected by a tree – if:

1. branches from the tree overhang the land; or

2. the tree has caused, is causing, or is likely within the next 12 months to cause:

1. serious injury to a person on the land; or

2. serious damage to the land or any property on the land; or

3. substantial, ongoing, and unreasonable interference with their use and enjoyment of the land.^[4]

13. [13]
    I am satisfied that the applicant’s land is affected by some of the trees with branches overhanging the boundary.
14. [14]
    The respondents are “tree-keepers”^[5] because they are the registered owners of the land on which the trees are situated. The Act outlines the responsibilities of a tree-keeper, including cutting and removing branches that overhang a neighbour’s land. Tree keepers are also responsible for ensuring that the tree does not cause serious injury to a person, or serious damage to a person’s land or any property on the land, or cause substantial and ongoing and unreasonable interference with the use and enjoyment of the land.^[6]
15. [15]
    In determining whether there has been unreasonable interference, the Tribunal may consider (relevantly):^[7]

1. anything other than the tree that has contributed, or is contributing, to the interference; and

2. any steps taken by the parties to prevent or minimise the interference; and

3. the size of the applicants’ land; and

4. whether the trees were planted before the applicant acquired the land.

16. [16]
    The primary consideration for the Tribunal in deciding an application is the safety of any person.^[8] Other matters for the Tribunal’s consideration relevant to these circumstances are contained in the legislation,^[9] and are addressed later in this decision.
17. [17]
    A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[10]
18. [18]
    The Tribunal has power to order that either of the parties remove a tree or undertake particular maintenance work.^[11] The Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order.^[12]
19. [19]
    The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the land.^[13] Maintenance of the applicant’s property is his responsibility.
20. [20]
    Photographs supplied by the parties show many large trees on the respondents’ property and close to the boundary fence. They were present when the applicant bought the home and it is reasonable to expect him to have anticipated that regular yard maintenance would be required. The Tribunal will not ordinarily intervene in a case where trees are dropping leaves, flowers, fruit, seeds, or small elements of deadwood. There is no evidence that leaf litter dropped from the respondents trees onto the applicant’s land is unusually substantive. The arborist engaged by the applicant notes that some of the trees will shed their leaves in the dry months. This will, no doubt, interfere somewhat with the applicant’s use and enjoyment of his land. The photographs provided by the applicant show some leaves on his property, but they are not, in my view, evidence that there is a substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of his land.
21. [21]
    The applicant alleges that the trees block sunlight onto part of his lawn. The Tribunal can only make orders in relation to blocked sunlight if there is a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.^[14] There is no evidence that is the case here.
22. [22]
    As the applicant’s land is affected by trees due to overhanging branches, the Tribunal has jurisdiction to make orders to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
23. [23]
    Before making any orders, the Tribunal must consider the matters in s 73. The relevant factors, on the evidence before me, are:

1. the location of the trees – close to the boundary and some impacting on the fence between the properties;

2. the trees contribute to the local ecosystem and biodiversity by providing shade and resting places for local fauna;

3. the trees blend into and enhance the natural landscape and scenic value of the locality as they are situated in an area with many other well established trees;

4. the trees provide a degree of privacy for the parties who do not share a good relationship; and

5. the arborist has recommended that some of the trees are able to be safely pruned.

24. [24]
    Having regard to the evidence, photographs and submissions provided by the parties, and the report of the arborist, I make the following findings:

    1. The Hibiscus Rose Flake is imposing on the fence and is likely to cause damage if not trimmed. I accept the recommendation of the arborist that it should be trimmed back to fence line. This should happen annually.
    2. Stems from the Phyllanthus cuscutiflorus are impacting the fence and protruding into the applicant’s yard. I accept the recommendation that those stems that are impacting the fence should be trimmed back to the fence line. This should happen annually. 
    3. Eucalyptus leptophleba. The arborist states that two of the three trees do not pose any safety risk. I understand his report to mean that the remaining tree does pose a safety risk and the branches protruding over the applicant’s land should be cut back to the fence. I accept that recommendation.
    4. There is no independent evidence that any action is required in relation to the Corymbia torelliana or the Eucalyptus platyphylla and I find accordingly.
    5. The independent evidence is that the Glochidion poses no safety risk. A branch from the tree does, however, extend over the applicant’s property by more than 3 metres. I am satisfied that amounts to a substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant’s land and I accept the arborist’s recommendation that the branch be removed.
25. [25]
    The respondents, as tree keepers, have the responsibility of conducting the pruning and cutting or removing the identified branches of the trees that overhang or protrude through the boundary fence, provided the pruning will not affect the health of the tree. Accordingly, it is appropriate that any costs associated with the orders are to be borne by the respondents in this case.