Draper v Kinna - [2025] QCAT 422

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Draper & Anor v Kinna & Anor [2025] QCAT 422

PARTIES:

DEIRDRE DRAPER

(applicant)

ANTHONY COLAHAN

(applicant)

v

ALLAN KINNA

(respondent)

NAVUT BUMRUNGSENA

(respondent)

APPLICATION NO:

NDR248-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

24 October 2025

HEARING DATES:

20 October 2025

HEARD AT:

Caloundra

DECISION OF:

Member Roney KC

ORDERS:

1.   The respondents shall cause the subject Tallowwood tree undergo a complete dead wood pruning procedure which includes all dead branches on the southern extent over the applicants’ property to 1 centimetre in diameter.

2.   The respondents shall have the subject tree inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety and obtain advice as to whether further pruning is appropriate in the future.

3.   The respondents shall not permit any live tissue to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production.

4.   I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –

DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Forest Red Gum tree causing substantial, ongoing and unreasonable interference – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ tree be removed because of concerns for their safety from falling material –where respondents had conducted annual maintenance to the tree – where the tree is a native and a very important species as a food source for native wildlife and adjacent to a conservation area

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Belcher v Sullivan [2013] QCATA 304
Body Corporate – Highlands Vista v Taylor [2018] QCAT 244
Bunyard v McManus [2013] QCAT 258
Cacopardo v Woolcock [2017] QCAT 214
Hewitt v Brisbane City Council [2018] QCAT 282
Hoy v Fox & Anor [2013] QCAT 728
Laing v Kokkinos (No.2) [2013] QCATA 247
Street v Smith & Rogers [2018] QCAT 193
Thomsen v White [2012] QCAT 381
Watson-Brown v Heaton & Anor [2014] QCAT 346
Webb v Dwyer & Clarke [2014] QCAT 219

APPEARANCES & REPRESENTATION:

Applicants:

Self-Represented

Respondents:

Self-represented

REASONS FOR DECISION

The applicants and the respondents own adjoining suburban properties in Buderim north of Brisbane. The applicants’ property is at 5 Mountain Ridge Crescent and adjoins the respondent tree-keepers’ property at 3 Mountain Ridge Crescent.
On 14 July 2022…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Draper v Kinna

Details

AGLC: Draper v Kinna [2025] QCAT 422
Case: [2025] QCAT 422
Decision Date: 24 October 2025

CaseChat Overview and Summary

Draper v Kinna involved the applicants, Mr and Mrs Draper, who sought orders from QCAT against the respondents, Mr and Mrs Kinna, regarding the removal of a tree on the respondents’ property that they believed posed a risk to their safety and property. The dispute centred around a substantial Forest Red Gum tree, which the Drapers argued had or was likely to cause serious damage to their land or property under s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The respondents maintained that the tree, being a native and important species for local wildlife, should be preserved and had been subject to annual maintenance.

The primary legal issue before the court was whether the tree constituted a substantial, ongoing and unreasonable interference with the Drapers’ use and enjoyment of their land. The court had to balance the preservation of the native tree against the safety concerns of the Drapers. The respondents argued that the tree was a significant part of the local ecosystem, providing food for native wildlife and being adjacent to a conservation area. The Drapers contended that the tree’s dead branches over their property posed a risk of falling, which endangered their safety and property.

The court found that while the tree was of ecological importance, it had indeed caused substantial, ongoing and unreasonable interference with the Drapers’ use and enjoyment of their land due to the presence of dead branches over their property. The court ordered the respondents to undertake a complete dead wood pruning procedure, including the removal of all dead branches over the Drapers’ property down to 1 centimetre in diameter. Additionally, the respondents were required to have the tree inspected annually by a qualified arborist to assess its health and safety. The court also prohibited the removal of any live tissue from the tree until future assessments indicated it was healthy enough to withstand such loss. Finally, the court granted the parties the liberty to apply for any further consequential orders that might be necessary.

Orders

Orders of the court

1. The respondents shall cause the subject Tallowwood tree undergo a complete dead wood pruning procedure which includes all dead branches on the southern extent over the applicants’ property to 1 centimetre in diameter.

2. The respondents shall have the subject tree inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety and obtain advice as to whether further pruning is appropriate in the future.

3. The respondents shall not permit any live tissue to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production.

4. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Draper & Anor v Kinna & Anor [2025] QCAT 422
PARTIES:	DEIRDRE DRAPER (applicant) ANTHONY COLAHAN (applicant) v ALLAN KINNA (respondent) NAVUT BUMRUNGSENA (respondent)
APPLICATION NO:	NDR248-22
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	24 October 2025
HEARING DATES:	20 October 2025
HEARD AT:	Caloundra
DECISION OF:	Member Roney KC
ORDERS:	1. The respondents shall cause the subject Tallowwood tree undergo a complete dead wood pruning procedure which includes all dead branches on the southern extent over the applicants’ property to 1 centimetre in diameter. 2. The respondents shall have the subject tree inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety and obtain advice as to whether further pruning is appropriate in the future. 3. The respondents shall not permit any live tissue to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production. 4. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Forest Red Gum tree causing substantial, ongoing and unreasonable interference – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ tree be removed because of concerns for their safety from falling material –where respondents had conducted annual maintenance to the tree – where the tree is a native and a very important species as a food source for native wildlife and adjacent to a conservation area Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73 Belcher v Sullivan [2013] QCATA 304 Body Corporate – Highlands Vista v Taylor [2018] QCAT 244 Bunyard v McManus [2013] QCAT 258 Cacopardo v Woolcock [2017] QCAT 214 Hewitt v Brisbane City Council [2018] QCAT 282 Hoy v Fox & Anor [2013] QCAT 728 Laing v Kokkinos (No.2) [2013] QCATA 247 Street v Smith & Rogers [2018] QCAT 193 Thomsen v White [2012] QCAT 381 Watson-Brown v Heaton & Anor [2014] QCAT 346 Webb v Dwyer & Clarke [2014] QCAT 219
APPEARANCES & REPRESENTATION:
Applicants:	Self-Represented
Respondents:	Self-represented