Gilmore v Browne - [2025] QCAT 78

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gilmore and Anor v Browne [2025] QCAT 78

PARTIES:

NEIL ANDREW GILMORE

(applicant)

ALICIA MELANIE PRICE

(applicant)

v

HARRY ANTHONY BROWNE

(respondent)

VIVIANA BROWNE

(respondent)

APPLICATION NO/S:

NDR043-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 February 2025

HEARING DATE:

26 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

1.   Within 60 days of the date of the decision, being on or before 29 April 2025, Mr Harry Anthony Browne and Mrs Viviana Browne must, at their own cost, undertake the complete removal and stump grinding of the single Glochidion ferdinandi (Cheese Tree) located on the left side (northwestern) boundary fence of their property at 9 Radford Street, Southport.

2.   Any roots from the subject tree growing on Mr Gilmore and Ms Price’s property are to be ground down to ground level and all tree debris is to be removed from Mr Neil Gilmore and Ms Alicia Price’s property and from Mr and Mrs Browne’s property after the tree removal is completed.

3.   The work must be performed by either a tree lopper with current public liability and work cover insurances or a minimum Australian Qualifications Framework level three (3) qualified arborist with the same insurances.

4.   Any tree lopper or arborist engaged by Mr and Mrs Browne shall be entitled to enter Mr Gilmore and Ms Price’s land at 14 Waldash Street, Southport to undertake the work in order 1 and 2, subject to providing 72 hours’ notice of the work being done.

5.   Mr and Mrs Browne will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the removal of the tree in compliance with orders 1-3.

6.   If the tree works detailed in Orders 1 and 2 are not completed by 30 April 2025, Mr Neil Gilmore and/or Ms Alicia Price shall be entitled to have the work performed by a suitably qualified tree lopper or arborist with the appropriate public liability and work cover insurance.

7.   Any tree lopper or arborist engaged by Mr Gilmore and/or Ms Price shall be entitled to enter Mr and Mrs Browne’s land at 9 Radford Street Southport, subject to providing 72 hours’ notice of the work being done.

8.   If Mr Gilmore and/or Ms Price carry out the work in default of it being done by Mr and Mrs Browne, the costs incurred by Mr Gilmore and/or Ms Price in engaging a tree lopper and/or arborist to do the work and/or in obtaining council approvals, shall be recoverable from Mr and Mrs Browne as a debt without further notice being required to be given.

CATCHWORDS

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute –where the tree branches overhang the boundary – whether the tree has cause serious injury or damage – whether tree causing substantial, ongoing and unreasonable interference – where tree has ecological and historical value.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld),…

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 Gilmore v Browne

Details

AGLC: Gilmore v Browne [2025] QCAT 78
Case: [2025] QCAT 78
Decision Date: 28 February 2025

CaseChat Overview and Summary

The matter of Gilmore v Browne before the Queensland Civil and Administrative Tribunal (QCAT) involved a dispute between neighbours over a tree that was overhanging the boundary between the parties' properties. The tree in question was a Glochidion ferdinandi, commonly known as a Cheese Tree, located on the left (northwestern) side boundary fence of the property at 9 Radford Street, Southport, owned by Mr and Mrs Browne. The plaintiffs, Mr Neil Gilmore and Ms Alicia Price, who own the adjoining property at 14 Waldash Street, Southport, sought relief on the basis that the tree was causing serious injury, damage, and substantial, ongoing and unreasonable interference with their use and enjoyment of their property. They also argued that the tree had ecological and historical value, which the defendants did not adequately consider. The defendants argued that the tree should remain due to its ecological and historical value.

The central legal issues that the tribunal had to decide were whether the tree had caused serious injury or damage to the plaintiffs' property and whether it was causing substantial, ongoing and unreasonable interference with their use and enjoyment of their property. Additionally, the tribunal had to consider the ecological and historical value of the tree and whether it should remain on the defendants' property. The tribunal also had to determine whether the plaintiffs were entitled to have the tree removed and whether they could recover the costs of removal if the defendants failed to do so.

The tribunal found that the overhanging branches of the tree were causing substantial, ongoing and unreasonable interference with the plaintiffs' use and enjoyment of their property, including obstructing sunlight, reducing the value of their property, and causing inconvenience and distress. The tribunal noted that the plaintiffs had provided evidence of the negative impact of the tree on their property, including expert reports and photographs. The tribunal also found that the ecological and historical value of the tree, while significant, did not outweigh the interference caused to the plaintiffs. The tribunal ordered the complete removal and stump grinding of the tree and directed that any roots growing on the plaintiffs' property be ground down to ground level and all tree debris removed. The tribunal also ordered that the work be performed by a suitably qualified tree lopper or arborist with the appropriate insurances and that the defendants be responsible for any costs associated with the removal.

In summary, the tribunal ordered the defendants to remove the overhanging branches of the Cheese Tree and any roots growing on the plaintiffs' property. The tribunal also ordered that the work be performed by a suitably qualified tree lopper or arborist with the appropriate insurances and that the defendants be responsible for any costs associated with the removal. The tribunal found that the ecological and historical value of the tree did not outweigh the interference caused to the plaintiffs. If the defendants failed to comply with the orders, the plaintiffs were entitled to have the work performed and recover the costs from the defendants.

Orders

Orders of the court

1. Within 60 days of the date of the decision, being on or before 29 April 2025, Mr Harry Anthony Browne and Mrs Viviana Browne must, at their own cost, undertake the complete removal and stump grinding of the single Glochidion ferdinandi (Cheese Tree) located on the left side (northwestern) boundary fence of their property at 9 Radford Street, Southport.

2. Any roots from the subject tree growing on Mr Gilmore and Ms Price’s property are to be ground down to ground level and all tree debris is to be removed from Mr Neil Gilmore and Ms Alicia Price’s property and from Mr and Mrs Browne’s property after the tree removal is completed.

3. The work must be performed by either a tree lopper with current public liability and work cover insurances or a minimum Australian Qualifications Framework level three (3) qualified arborist with the same insurances.

4. Any tree lopper or arborist engaged by Mr and Mrs Browne shall be entitled to enter Mr Gilmore and Ms Price’s land at 14 Waldash Street, Southport to undertake the work in order 1 and 2, subject to providing 72 hours’ notice of the work being done.

5. Mr and Mrs Browne will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the removal of the tree in compliance with orders 1-3.

6. If the tree works detailed in Orders 1 and 2 are not completed by 30 April 2025, Mr Neil Gilmore and/or Ms Alicia Price shall be entitled to have the work performed by a suitably qualified tree lopper or arborist with the appropriate public liability and work cover insurance.

7. Any tree lopper or arborist engaged by Mr Gilmore and/or Ms Price shall be entitled to enter Mr and Mrs Browne’s land at 9 Radford Street Southport, subject to providing 72 hours’ notice of the work being done.

8. If Mr Gilmore and/or Ms Price carry out the work in default of it being done by Mr and Mrs Browne, the costs incurred by Mr Gilmore and/or Ms Price in engaging a tree lopper and/or arborist to do the work and/or in obtaining council approvals, shall be recoverable from Mr and Mrs Browne as a debt without further notice being required to be given.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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