O'Kane v Caughley & Anor[2025] QCAT 213

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   Mr O'Kane (‘the Applicant’) is the owner of a property at 32 Pine Avenue, Surfers Paradise in the State of Queensland (‘32 Pine Ave’), which is leased.
2. [2]
   Mr Caughley and Ms Battaglia (‘the Respondent’) are the owners and residents of the neighbouring property at 30 Pine Avenue, Surfers Paradise in the State of Queensland (’30 Pine Ave’), which they purchased from the Applicant in 2020.
3. [3]
   From August to October 2023, the parties exchanged text messages about the Respondent arranging a tree contractor to cut their trees overhanging the Applicant’s property to the fence line. On 18 September 2023, the Applicant indicated that he wanted the job done before his tenant moved in on 25 September otherwise access would have to be arranged through the leasing agent. At the Applicant’s request, the Respondent confirmed the tree contractor had appropriate insurance. Come 25 September, the Applicant expressed his disappointment to the Respondent that the job had not been done and requested that it be done urgently. The Respondent replied that they could not currently meet the expense of tree lopping.
4. [4]
   The Applicant filed an Application for a tree dispute on 19 February 2024 (‘the Application’). The trees in dispute are three Golden Penda trees (‘the trees’) located on the Respondent’s property close to the fence line. I summarise the Applicant’s claims as follows:

   1. Leaves, pollen, and debris from the trees strangle shrubs, clog the pool skimmer box and filter basket, and build up on the pool coping and in the pool; the pollen dries to a black colour and leaches through the pebbles surrounding the pool. The stronger the winds the bigger the mess. It is a daily task to keep the property and pool clean.
   2. The tenant refused to maintain the pool due to the extreme mess caused by the trees. The leasing agent has advised that it is unreasonable to require the tenant to maintain the pool; as a result, the Applicant has engaged a pool contractor to do the maintenance.
   3. All morning sun is blocked by the trees.
   4. Orders that the Respondent prune the trees on an ongoing basis to the fence line and to a height of not more than two metres to minimise fallen leaves and debris, prevent damage to landscaping and pool filtration system, and allow reasonable maintenance by tenant. Further orders that the Respondent pay for the cost of any repairs to the fence, and reimburse the Applicant for the application fee, photographic and postage costs, and pool maintenance costs.
5. [5]
   The Respondent filed a Response to an application for a tree dispute on 11 June 2024 (‘the Response’). I summarise the Respondent’s claims as follows:

   1. The trees are subject to the Gold Coast City Council Tree and Vegetation Management Code and require assessment prior to pruning.
   2. The Applicant has not tried to resolve the dispute. During the three years the Applicant resided at 32 Pine Ave, before leasing the property, he never raised an issue with flowers, leaves, seeds and related maintenance and damage.
   3. The trees host local birdlife and reptiles, and bees when flowering. The Respondent is not responsible for fallen seeds and flowers during spring or when birds are feeding. They question what reasonable organic matter is.
   4. The Applicant has planted similar trees at 32 Pine Ave in close proximity to the pool.
   5. The Respondent rejects the Applicant’s claims of damage to landscape and pool, interference with the Applicant’s use of the land, and blocking of sunlight.
   6. The trees have not caused damage to the timber fence. There is damage to the Respondent’s red brick dividing fence as a result of the Applicant (at the Respondent’s request) removing his attached roof pergola; this is when the relationship deteriorated, and the Applicant began texting about the trees.
6. [6]
   On 2 July 2024, the Tribunal directed that the Applicant serve the Application on the Gold Coast City Council and pay $1,200 towards the cost of a Tribunal-appointed tree assessor, and that the tree assessor’s evidence will be the only expert evidence allowed in the proceeding. Subsequently, the Tribunal appointed arborist, Mr Steven Richards.
7. [7]
   Mr Richards inspected the trees at 30 Pine Ave on 9 September 2024 and provided a Tree Assessment Report dated 20 September 2024 (‘Tree Assessment Report’).
8. [8]
   The Applicant filed an Application for miscellaneous matters on 5 March 2025 seeking orders for the reimbursement of additional costs, including the cost of the title search and the Tree Assessment Report.
9. [9]
   The Respondent filed an Application for miscellaneous matters on 31 March 2025 seeking orders that the Tribunal dismiss the Application and the Application for miscellaneous matters dated 5 March 2025.

Legislation

10. [10]
    Section 41(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides that a tree-keeper is responsible for the proper care and maintenance of their tree. Chapter 3 of the Act sets out the common law and statutory remedies for dealing with an issue about a tree-keeper’s tree affecting a neighbour’s land and, where a resolution cannot be reached between neighbour and tree-keeper, the neighbour’s entitlement to apply to the Tribunal.
11. [11]
    Definitions of ‘tree’, ‘tree-keeper’, ‘neighbour’, ‘land affected by a tree’ and other relevant terms are set out in Part 2 of Chapter 3 of the Act.
12. [12]
    A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land, and 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 their land, or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.^[1]
13. [13]
    Part 5 of the Act applies if a neighbour’s land is affected by a tree and the neighbour cannot resolve the issue using the process in Part 4.^[2] The tree-keeper and neighbour are encouraged to resolve the issue informally, however the neighbour may exercise the common law right of abatement or apply to the Tribunal for resolution of the issue.^[3]
14. [14]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that land is affected by the tree.^[4]
15. [15]
    The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on their land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of their land.^[5] Where the interference is an obstruction of sunlight or a view, the latter is only satisfied if the tree is at least 2.5 metres above the ground and there is severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land or severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.^[6]
16. [16]
    The Tribunal may make such orders if it is satisfied that the neighbour has done certain things including made a reasonable effort to reach agreement with the tree-keeper.^[7]
17. [17]
    In deciding an application for orders, the Tribunal is required to consider, primarily, the safety of any person,^[8] and then a number of other matters.^[9]  The Act stipulates that a living tree should not be removed or destroyed unless the issue cannot otherwise be satisfactorily resolved.^[10]
18. [18]
    Where the neighbour alleges the tree has caused, is causing, or is likely to cause substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, the Tribunal may consider, among other things, the contribution of anything other than the tree, any steps taken by the tree-keeper or neighbour to prevent or minimise the interference, and whether the tree existed before the neighbour acquired the land.^[11]
19. [19]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, generally speaking, each party must bear their own costs. The exception to that is, unless it is in the interests of justice to do so.^[12] Section 102(3) of the QCAT Act sets out the matters the Tribunal may have regard to when considering the interests of justice.

Jurisdiction

20. [20]
    I note the Applicant has elected not to exercise his common law right of abatement or use the formal resolution process set out in Part 4 of the Act.
21. [21]
    I consider the orders sought by the Applicant, being (inter alia) that the Respondent prune the trees on an ongoing basis to the fence line and to a height of not more than 2 metres to be outside the parameters of Part 4 of the Act.
22. [22]
    I consider on the evidence before the Tribunal there was an attempt by the parties to resolve the issue informally through an exchange of text messages, however communications soon deteriorated, and the issue stalled. The Applicant then filed an application in the Tribunal.
23. [23]
    I am satisfied on the evidence before the Tribunal that:

    1. The trees are trees as defined by the Act.
    2. The Respondent is the tree-keeper of the trees.
    3. The Applicant is a neighbour in relation to the trees.
    4. The Applicant’s land is affected by the trees.
    5. The Applicant is entitled to apply to the Tribunal.
    6. The Tribunal has jurisdiction to hear and decide the Application.

Tree Assessment Report

24. [24]
    I summarise the relevant aspects of the Tree Assessment Report as follows:

    1. The trees are of the Xanthostemon chrysanthus species (Golden Penda) between 6 to 9 metres in height, 3 to 5 metres in canopy spread, and in good health. They are located on the Respondent’s property, at an average of 200mm from the fence line between the parties’ properties and, at the time of inspection, branches extend approximately 2 metres from the height of the crown across the fence line into the Applicant’s property.
    2. The trees were planted as a screening hedge approximately 20 years ago. There is evidence of historical pruning to minimise encroachment.
    3. The trees do not display any obvious arboricultural defects and damage to people or property is rated as low risk.
    4. The height of the trees has minimal impact on pool shading; the trees only affect morning sunshine in summer months. The Applicant’s dwelling causes shading over the pool for the majority of the year.
    5. The mature dimensions of the trees are 8 to 10 metres in height with a 6 to 8 metre crown spread. Containing trees to smaller dimensions that is antagonistic to their genetic potential is ongoing and costly.
    6. The trees are a poor selection for the environment. If the tree-keeper decides to keep the trees, recommend yearly pruning to the fence line to formalise a hedge façade, performed late winter to minimise shoot elongation. Maintenance will require professional practitioners (minimum AQF level 3 arborist) to reach the heights necessary in a safe and effective manner. Alternatively, removal of the trees and replacement with a more conducive species requiring minimal or no maintenance (Eumundi Quandong or Magnolia ‘Teddy Bear’) would be the most cost-effective strategy in the long term.

Consideration

25. [25]
    There is insufficient evidence to establish whether the Applicant served the Application on the Gold Coast City Council in accordance with the Tribunal’s directions.
26. [26]
    I am satisfied however on the evidence before the Tribunal that the Gold Coast City Council advised the Applicant in writing that the Council cannot intervene in a private tree dispute and referred the Applicant to the Council’s dispute resolution centre.
27. [27]
    The orders the Tribunal is permitted to make are circumscribed by the section 66(2) and (3) of the Act. 
28. [28]
    I note the Tribunal directed that Mr Richards’ evidence will be the only expert evidence allowed in the proceeding. I give considerable weight to Mr Richards’ Tree Assessment Report.
29. [29]
    I note Mr Richards states that damage to people or property from the trees is rated at low risk.
30. [30]
    I am satisfied there is no credible evidence before the Tribunal to find that the leaves, pollen, and debris from the trees have caused, are causing, or may cause serious damage to the Applicant’s land or property, including the landscaping, pool, and pool filtration system.
31. [31]
    I do not consider an order to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the Applicant’s land or property is appropriate. Accordingly, I decline to make such an order.
32. [32]
    The question remains whether the trees have caused, are causing, or may cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land, including severe obstruction of sunlight to the Applicant’s windows or roof.
33. [33]
    I note Mr Richards states that the height of the trees has minimal impact on pool shading, the trees only affect morning sunshine in summer months, and the Applicant’s dwelling causes shading over the pool for the majority of the year.
34. [34]
    I am satisfied there is no credible evidence before the Tribunal to find that the trees have caused, are causing, or may cause severe obstruction of sunlight to the Applicant’s windows or roof.
35. [35]
    I do not consider an order to prevent severe obstruction of sunlight to the Applicant’s windows or roof is appropriate. Accordingly, I decline to make such an order.
36. [36]
    The Applicant claims that the leaves, pollen, and debris from the trees strangle shrubs, clog the pool skimmer and filter basket, and build up on the pool coping and in the pool; and that it is a daily task to keep the property and pool clean. The Applicant has provided photographs in support of his claims.
37. [37]
    The Applicant also claims that he has had to engage a pool contractor to perform the pool maintenance because it is unreasonable to require the tenant to do so. I consider the private lease arrangements between the Applicant and his tenant are unrelated to any statutory responsibilities of the parties arising by virtue of their legal status as tree-keeper and neighbour, and beyond the scope of the Tribunal’s considerations.
38. [38]
    The Tribunal has previously determined that the presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[13]
39. [39]
    I note Mr Richards makes no comment about the leaves, pollen, and debris from the trees causing interference. He does however, in the paragraph headed ‘Checks against matters for consideration ss70-75’, indicate that the trees (of varying heights and canopy spreads) have not yet reached their genetic potential. Using Mr Richards’ measurements, I calculate the trees are predicted to grow between 1 and 4 metres in height, and between 3 and 5 metres in canopy spread.
40. [40]
    I note on 9 September 2024 (the tree inspection date), Mr Richards measured the branch overhang into the Applicant’s property as approximately 2 metres. The photographs in the Tree Assessment Report show the extent of the trees’ encroachment, which in my view is significant relative to the Applicant’s corner garden and pool. I consider it is reasonable to assume that, without intervening containment, the branch overhang is now, nearly 9 months later, more than 2 metres. Further, based on Mr Richards’ evidence regarding the trees’ genetic potential, it is also reasonable to expect that, without containment, the branch overhang will continue to increase, though Mr Richards does not offer a predicted branch overhang measurement.
41. [41]
    In my view, it is evident from Mr Richards’ photographs and the Applicant’s photographs that over time, if not already, the Applicant’s corner garden and pool would be increasingly difficult to access and maintain due to the trees’ overhanging branches.
42. [42]
    I consider that, without containment, the trees’ branch overhang and the associated leaves, pollen, and debris is, by now, or is likely in the next 12 months to cause substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of the corner garden and pool.
43. [43]
    The Act requires me to consider the matters listed in sections 73 and 75. Relevantly, I consider the close proximity of the trees to the boundary fence is contributing to the interference I have described. I also consider the trees provide a privacy screen, noting Mr Richards’ comment that the trees were planted as a screening hedge. To date, no steps have been taken by either party to minimise the interference.
44. [44]
    I note Mr Richards states that while removal of the trees and replacement with a more conducive species for the environment is the most cost-effective option, he recommends, if the Respondent decides to keep the trees, yearly pruning to the fence line on the western aspect in late winter to formalise a hedge façade. Section 72 of the Act requires that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be resolved. Mr Richards has provided an alternative to removal, which I must observe.
45. [45]
    I am satisfied on the evidence that it is appropriate to make an order in relation to the trees pursuant to section 66(2)(b)(ii) of the Act to remedy, restrain or prevent the substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land.
46. [46]
    I am satisfied there is no basis in the interests of justice to displace the general principle that parties to Tribunal proceedings must bear their own costs.

Orders

47. [47]
    The Tribunal’s orders will be as follows:

1. The Respondent must undertake, on an annual basis, pruning of the three Golden Penda trees to the fence line of the Applicant’s property to formalise a hedge façade.
2. The Respondent must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the work associated with Order 1; and the work must be performed in accordance with AS 4373-2007 Pruning of amenity trees.
3. The Respondent must ensure that the initial work associated with Order 1 is undertaken in August 2025, and by no later than 24 August 2025, and that the ongoing annual work associated with Order 1 is undertaken in August of each year, and by no later than the end of the third week of August of each year.
4. The Applicant must allow the Respondent’s chosen arborist with appropriate insurances, and where necessary, the Respondent, access to the Applicant’s land to undertake the work associated with Order 1 subject to the Respondent giving at least 3 days’ prior written notice to the Applicant.
5. The Respondent will be responsible for all costs of complying with Order 1.
6. If the Respondent fails to undertake any of the work associated with Order 1 (‘Incomplete Work’), the Applicant will be entitled to undertake any of the Incomplete Work in accordance with these orders. Where necessary to comply with these orders, the Applicant’s chosen arborist with appropriate insurances will be entitled to enter the Respondent’s land and undertake any of the Incomplete Work subject to the Applicant giving 14 days’ prior written notice to the Respondent.
7. If the Respondent undertakes all of the outstanding Incomplete Work before the expiration of the 14 days’ prior written notice, the Applicant’s entitlement to enter the Respondent’s land, with or without their chosen arborist, is extinguished.
8. The costs incurred by the Applicant to undertake any of the Incomplete Work in accordance with these orders in default of the Respondent will be recoverable from the Respondent as a debt without further notice being required to be given.
9. The Applicant’s Application for miscellaneous matters filed 5 March 2025 is dismissed.
10. The Respondent’s Application for miscellaneous matters filed 31 March 2025 is dismissed.
11. Each party must bear their own costs of and incidental to the Application and the subsequent dismissed applications.