Lowrey v Fryer[2025] QCAT 79

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this proceeding about?

1. [1]
   This proceeding about a tree dispute falls to be determined on the papers.
2. [2]
   Mr Lowrey says that there are a number of trees situated on Mr Fryer’s land that affect Mr Lowrey’s land. Mr Lowrey says that the trees should be reduced in height by at least 5 metres. Mr Lowrey’s principal complaints about the trees relate to leaf litter and shading.
3. [3]
   Mr Fryer agrees that the branches of the trees extend over the boundary between the parties’ properties and that the branches are more than 2.5 metres above the ground.

Jurisdiction

4. [4]
   The relevant enabling Act giving QCAT the power to make orders about trees is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’).
5. [5]
   I am satisfied that:

   1. Mr Lowrey is a neighbour;^[1]
   2. Mr Fryer is a tree keeper;^[2]
   3. There are, situated on Mr Fryer’s land, a number of trees immediately adjacent to the boundary fence between Mr Lowrey’s land and Mr Fryer’s land (‘the trees’);
   4. The branches of the trees extend over Mr Lowrey’s land;
   5. Mr Lowrey’s land is affected by the trees;^[3]
   6. Mr Lowrey has made a reasonable effort to reach agreement with Mr Fryer about the trees;^[4]
   7. Mr Fryer has been served with the originating application;^[5]
   8. The Tribunal has jurisdiction to decide the tree dispute.^[6]

What do the parties say?

6. [6]
   A directions hearing was held on 22 May 2024. Mr Lowrey attended the directions hearing. Mr Fryer did not. The Tribunal made directions for the parties to file the evidence and submissions relied upon by each party. The matter would thereafter be determined on the papers.
7. [7]
   Following the directions hearing Mr Lowrey filed very brief submissions accompanied by two photographs. Mr Fryer filed no evidence or submissions.
8. [8]
   Mr Lowrey does not particularise the trees situated on Mr Fryer’s land about which he complains. Neither the number nor species of trees is identified. The complaints Mr Lowrey makes, as best as may be understood from the originating applications, are:

   1. In the event of a serious storm, there is ‘every chance’ that a tree or branches from a tree could injure someone on Mr Lowrey’s land;
   2. The tree branches block out sunlight and drop excessive leaves on the ground and in the gutters of Mr Lowrey’s residence, preventing grass from growing and requiring Mr Lowrey to clean his gutters three or four times per year;
   3. The tree branches shade the outside clothesline on Mr Lowrey’s land resulting in clothes not drying.
9. [9]
   In his brief written submissions, Mr Lowrey says that Mr Fryer trimmed back the branches of the trees in January 2024 however by June 2024 the branches had grown back. Mr Lowrey relies on photographs of the trees taken in November 2023 and June 2024 to illustrate the original state, and the (then) current state, of the trees. Mr Lowrey says that the trees should be removed or reduced to ‘an acceptable level annually’.

Discussion

10. [10]
    By s 66(2) of the ND Act, the Tribunal may make the orders it considers appropriate in relation to a tree affecting a neighbour’s land:

    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.^[7]
11. [11]
    As the applicant, the onus is upon Mr Lowrey to prove his case on the balance of probabilities. Each party has the opportunity to place before the Tribunal relevant and reliable evidence to support their case. In making a decision, the Tribunal makes findings about the facts and applies the relevant legal principles to the factual findings.
12. [12]
    Mr Lowrey’s complaints about the trees may be summarised as:

    1. The trees cause excessive amounts of leaf litter to accumulate on his land;
    2. The trees obstruct sunlight to his land adversely affecting grass growth and the use of an external clothesline;
    3. The trees have the potential to cause serious injury to persons.
13. [13]
    I will deal with each of these complaints in turn.

Leaf litter

14. [14]
    The presence of leaf litter deposited by a tree will not be sufficient, without more, to form the basis for an order about the tree. In Thomsen v White^[8] the Tribunal stated that the presence of trees in urban locations requires all residents to take some responsibility for cleaning gutters and leaf litter on a regular basis.
15. [15]
    Mr Lowrey says that the presence of leaf litter deposited by the trees results in his having to clean out his gutters three or four times per year. This frequency is, in my view, commensurate with the usual maintenance required by every occupier of land in an urban environment where trees are present. Mr Lowrey’s assertions about the extent of the leaf litter are somewhat vague. He offers no evidence in the form of photographs, statements by witnesses or expert reports to support his complaints about leaf litter.
16. [16]
    The evidence before the Tribunal is insufficient to conclude that the presence of leaf litter constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Lowrey’s land.

Obstruction of sunlight

17. [17]
    Interference caused by a tree that is claimed to be an obstruction of sunlight must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.^[9] The complaint made by Mr Lowrey relates to obstruction of sunlight to his yard. Accordingly, the obstruction complained of cannot constitute a substantial, ongoing and unreasonable interference for the purposes of s 66(2)(b)(ii) of the ND Act.

Risk of serious injury

18. [18]
    Mr Lowrey offers no evidence to support his assertion that the trees pose a risk of injury to a person. There is no evidence that, for example, branches from the trees have fallen in the past or that the trees have structural defects predisposing them to branch failure. Nor has Mr Lowrey presented any evidence from an arborist that the trees pose a risk of damage to his land or property on his land or injury to a person.
19. [19]
    I am not satisfied on the evidence before the Tribunal that it is appropriate to make an order about the trees to prevent serious injury to a person or to prevent damage to Mr Lowrey’s land or property on his land.

Conclusion

20. [20]
    Mr Lowrey has failed to adduce evidence to satisfy the Tribunal that it is appropriate for an order to be made about the trees.
21. [21]
    The proceeding is dismissed.