Goodey v Nicholls - [2025] QCAT 56

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
Goodey & Anor v Nicholls [2025] QCAT 56

PARTIES:

JAMES GOODEY AND VICKI BREWER

(applicants)

v

EMMA NICHOLLS

(respondent)

APPLICATION NO/S:

NDR102-22

MATTER TYPE:

Neighbourhood Dispute

DELIVERED ON:
16 January 2025

HEARING DATE:
26 November 2024

HEARD AT:
Brisbane

DECISION OF:

Member S M Burke

ORDERS:
1.   The Applicants’ application for removal of all the trees the subject of the complaint is dismissed.

2.   The trees in Groups 1, 2, 3 and 5, referred to in the tree assessor report dated 18 August 2023, are to be maintained to a height which does not interfere with the views from the Applicants’ property.

3.   The Trees in Group 4, referred to in the tree assessor report dated 18 August 2023, are to be pruned to reduce the overall height of the trees to that of the Group 3 trees.

4.   The stems of the Golden Canes in Group 5, referred to in the tree assessor report dated 18 August 2023, are to be removed to reduce their height by at least 3 metres to restore the pre-existing view enjoyed by the Applicants.

5.   Strict maintenance of all the subject trees is to be carried out on a regular basis by the Respondent.

6.   Maintenance works are to be carried out by a qualified AQF Level 3 arborist every 12 months.

7.   The cost of all maintenance of the subject trees is to be borne by the Respondent.

8.   The Respondent is to carry out the initial maintenance works on or before 10 March 2025.

CATCHWORDS:
NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 73, s 75

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

The Applicants, James Goodey and Vicki Brewer, are the registered owners of a property at 32 Marine Street, Macleay Island, Queensland. The Applicants live on Macleay Island permanently.
The Respondent, Emma Kate Nicholls, is the registered owner of an adjoining property at 34 Marine Street Macleay Island and is the “tree-keeper” in this application as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The Respondent’s property is a rental property. Ms Nicholls and her husband, Matt Nicholls, do not live at Macleay Island having moved from there due to a medical condition of the Respondent.
By application dated 9 May 2022, the Applicants seek the removal of the 19 bamboo trees along the dividing fence line which it is alleged affects the Applicants’ water views and enjoyment of their property (“the subject trees”). The Bamboo trees are trimmed from time to time by the Respondent but are usually at a height of at least 10 metres.

The Relevant Legislation

This Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.[1]
[1]Section 61 The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Act”) provides, pursuant to s 52, that an owner of land on which a tree is situated (“the tree-keeper”) is responsible for:
(a)cutting and removing any branches of the tree that overhang a neighbour’s land;
(b)ensuring that the tree does not cause:
(i)      serious injury to a person; or
(ii)      serious damage to a person’s land or any property on a person’s land;
(iii)     substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.
Section 46 of the Act provides that land is affected by a tree at a particular time if:
(a)any of the following applies –
(i)      branches from the tree overhang the land;
(ii)      the tree has caused, is causing, or is likely within the next 12 months to cause –
A.serious injury to a person on the land; or
B.serious damage to the land or any property on the land;
C.substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(b)the land –
(i)      adjoins the land on which the tree is situated; or
(ii)      would adjoin the land on which the tree is situated if it were not separated by a road.
The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land.
Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act.
Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land –
(a)to prevent serious injury to a person; or
(b)to remedy, restrain or prevent –
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, an order may do any of the following –
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on the tree on a particular occasion or on an ongoing basis;
Examples –
·an order that requires the removal of the tree within 28 days
·an order that requires particular maintenance work on the tree during a particular season every year
·an order that requires particular work to maintain the tree at a particular height, width or shape.
(b)require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
(c)require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
(d)authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying our an order;
(e)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
(f)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
(g)require a report by an appropriately qualified arborist.
Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters:
(a)the neighbour has made reasonable effort to reach agreement with the tree-keeper;
(b)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(c)to the extent the issue relates to land being affected because branches from the tree overhang the land –
(i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(ii) the neighbour cannot properly resolve the issue using the process under Part 4;
(d)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
Matters to be considered by the Tribunal are set out in sections 71 to 75 of the Act.
Section 71 states that the primary consideration is the safety of any person.
Section 72 states that a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.
Section 73 identified the general matters which the Tribunal must consider:
(a)the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
(b)whether carrying out work on the tree would require any consent or other authorisation under another act and, if so, whether the consent or authorisation has been obtained;
(c)whether the tree has any historical, cultural, social or scientific value;
(d)any contribution the tree makes to the local ecosystem and to biodiversity;
(e)any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
(f)any contribution the tree makes to public amenity;
(g)any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h)any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i)any risks associated with the tree in the event of a cyclone or other extreme weather event;
(j)the likely impact on the tree of pruning it, including the impact on the tree of maintaining it as a particular height, width or shape;
(k)the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
For present purposes, other matters which the Tribunal is to consider in the event that unreasonable interference is alleged includes the following:
(a)anything other than the tree has contributed, or is contributing, to the interference; and
(b)any steps taken by the tree-keeper or the neighbour to prevent of minimise the interference; and
(c)the size of the neighbour’s land; and
(d)whether the tree existed before the neighbour acquired the land; and
(e)for interference that is an obstruction of sunlight or a view – any contribution the tree makes to the protection or revegetation of a waterway or foreshore.

Compliance with Section 65 of the Act

Evidence, by way of correspondence, has been provided by both parties indicating that attempts to resolve the issues with the Applicants have been instigated by the Respondent.
Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper, I am satisfied that the requirements of s 65 of the Act have been fulfilled.

The Dispute

The Applicants assert that the subject trees which affect their property not only affect their water views to Perulpa Bay but are fast-growing and very difficult to manage.
It is conceded that the Respondent trims the trees approximately twice yearly but it is asserted that it is not possible to control the fast growth of the Bamboo trees. The Applicants allege that there is a constant problem with leaf litter in their back yard and the lack of sun in the yard is caused by the over-grown subject trees, The main concern is the impact on the views which were once enjoyed by the Applicants.
One further issue is the growth of the subject trees under the power lines along the front dividing fence which it is asserted poses a fire risk to the tenants of the Respondent’s property.
The Respondent’s husband, Matt Nicholls, has been liaising with the Applicants over some years about the complaints concerning the height of the trees, the type of trees planted by the Respondent and the effects on the Applicants’ property. According to Mr Nicholls every effort has been made to maintain the trees in a tidy manner and to alleviate the Applicants’ concerns.
The Applicants purchased their property in March 2005, before the Respondent planted a numerous number of Bamboo plants on his property in various locations.
Substantial photographic evidence and sketches have been provided outlining the positioning of the offending subject trees and the growth of the trees over various periods of time.

Arborist Report dated 18 August 2023

On 18 August 2023, Mr Steven Richards, in his role as a tree assessor, attended at the Respondent’s property at 34 Marine Street Macleay Island to assess the groups of vegetation which the Applicants allege have been planted in positions that have the ability to grow and obscure pre-existing views which the Applicants previously enjoyed.
Mr Richards addressed five groups of trees which had been identified as causing concern to the Applicants:-
(a)Group 1 is a clumping Bamboo hedge planted on the north-western extent of the Respondent’s property along the dividing fence. It is wholly located within the Respondent’s property and are maintained to a height of approximately 3 metres with no encroachment.
(b)Group 2 is a clumping Bamboo hedge that extends north/south at the western extremity of the Respondent’s property between the dwelling and the dividing fence. It is wholly located within the Respondent’s property and positioned on the boundary.
(c)Group 3 is a clumping Bamboo hedge that has been planted on the western extend in the southern corner of the Respondent’s property along the dividing fence. It is wholly located within the respondent’s property and is positioned on the boundary.
(d)Group 4 is a clumping Bamboo hedge that has been planted on the southern extent in the western corner of the Respondent’s property along the dividing fence. It is wholly located within the Respondent’s property and is positioned on the boundary.
(e)Group 5 is a screening area that consists of Pandanus and Golden Canes that extends north/south from the southern boundary of the Respondent’s property between the dwelling and the southern boundary fence. It is positioned about 16 metres from the dividing fence and is wholly contained within the Respondent’s property.
For the purpose of considering matters under ss 70 to 75 of the Act, Mr Richards notes that Macleay Island is covered by the Tree Protection Local Law No. 6 (Protection of Vegetation) which applies to native vegetation. The Respondent’s entire property has numerous protection overlays for the protection of vegetation. Mangrove trees are located on the foreshore and extend into the respondent’s property. All mangroves in Queensland are completely protected under the Fisheries Act 1994.
It is further noted that a coastal significance overlay which includes erosion prone area and coastal management district is present from the dwelling to the foreshore.
In addition, the Respondent’s property is covered by the Non-Juvenile Koala Habitat Tree Act and Groups 4 and 5 subject trees are densely populated by protected native vegetation in the areas beyond in the direction of the foreshore.
Mr Richards has taken into consideration that the mangroves growing to the tide mark have considerably thickened since the Applicants have taken possession of their property and that this has contributed to the increasing obscurity of their pre-existing view.
Mr Richards noted in particular in relation to the effect of the Respondent’s trees on the Applicants’ pre-existing views that:
(a)in relation to Group 1, from the eastern facing balcony of the Applicants’ property there was no pre-existing views and the hedge was managed at the time of inspection;
(b)in relation to Group 2, no pre-existing views to the east were available from the Applicants’ property. The southern extent of the hedge which was allowed to screen for privacy, grows to obscure the direction of a pre-existing view however protected vegetation beyond completely obscures any vantage in that direction;
(c)in relation to Group 3, at the time of inspection the subject trees had been maintained toa height of approximately 3m and there was no encroachment beyond the dividing fence. From the eastern facing balcony of the Applicants’ property, the group blocked no pre-existing views and was considered managed at the time of inspection;
(d)in relation to Group 4. At the time of inspection, the subject trees had been maintained to a height of 4 metres and there was no encroachment beyond the dividing fence. The hedge has been maintained a height approximately 1 metre higher than Group 3 and this additional height obscures a pre-existing view in a south-easterly direction from the Applicants’ property;
(e)in relation to Group 5, the Pandanus forms the central component whilst the Golden Canes are within the northern and southern extent of this grouping. The Pandanus is an Australian native and the Golden Cane is an introduced exotic species. The group is about 2 to 3 metres extending into what would have been a pre-existing view in this direction.
Mr Richards concluded that there was a significant impact on the Applicants’ pre-existing view because protected native foreshore trees had grown to obscure views from the direction of original vantage. The vegetation impacting the Applicants’ views was of high significance in the areas and cannot be removed and in time will completely obscure any original view claimed by the Applicants.
Mr Richards made the following recommendations: -
(a)Groups 1, 2 and 3 be maintained to the dimensions observed at the time of inspection.
(b)Group 4 be pruned to reduce the overall height by 1 metre or equal to the height of the group 3 subject trees.
(c)The Golden Canes that form part of Group 5 have their stems removed to reduce the height of these plants by 2 to 3 metres to restore the pre-existing vantage.
(d)Works should be carried out twice yearly to prevent encroachment into the Applicants’ property and to ensure that the height of the trees does not obscure any pre-existing view enjoyed by the Applicants.

Discussion

I have taken into account that Macleay Island is covered by the Tree Protection Local Law No 6 (Protection of Vegetation) and that this protection applies to all native vegetation. Obviously, tree protections has become increasingly important in these sensitive coastal areas and must be monitored and respected. It is acceptable that the increase of vegetation since the Applicants’ purchased their property in 2005 has had a significant impact on the condition of the foreshore and that it cannot be expected that the Applicants’ view would not be affected over that period of time.
The protection of native vegetation does not however extend to non-native Bamboo hedges and Golden Cane clumps which have the potential to cause nuisance to adjoining property owners. There is a concern that these species can cause a nuisance with leaning stems encroaching on neighbouring properties. There is the potential for these species to also cause concern with their increasing height and thickness obscuring pre-existing views.
For this reason, it is essential that proper maintenance of non-native vegetation be undertaken by tree-keepers on a regular basis.
The photographic evidence provided by the Applicants clearly demonstrates the on-going problems caused by the non-native vegetation in the Respondent’s property. As it is a rental property, it is imperative that the property be maintained on a regular basis.
The Applicants have submitted that there were two recommendations of Mr Richards at the time of inspection which were not included in the written report:
(a)the Bamboo in Group 2 should be maintained to gutter height;
(b)the Bamboo hedge being Group 3 should be cut back 3 metres towards the house to give back existing views which the Applicants’ enjoyed from the kitchen window.
The Applicants also reject portions of the report of Mr Richards and state as follows:
(a)It is incorrect to say that the Group 1 does not block pre-existing views. All views have been lost as a result of the Group 1 bamboo screen.
(b)The Group 2 trees will grow to the full height of 17 to 20 metres in 5 years and cannot be maintained properly due to the height and thickness of the canopy.
(c)Whilst the trees were trimmed for the inspection, for the majority of the time the trees are over-grown and not trimmed and all views are affected.
(d)With regards to Group 5, the group extend more to a height of 4 to 5 metres not 2 to 3 metres as stated by Mr Richards. Whist the Pandanus is a native plant, the Group contains many non-native weeds and vegetation which is not maintained and which contributes to a loss of view for the Applicants.

I am satisfied that with respect to the subject trees:-
(a)the Respondent has attempted to maintain the trees but that insufficient steps have been taken to ensure that the subject trees do not interfere with the Applicants’ views which were in place prior to the planting of the subject trees;
(b)the trees in Groups 1, 2, 3 and 5 must be maintained to a height which does not interfere with the views from the Applicants’ property, particularly:
(i) the Bamboo trees n Group 2 should be maintained to gutter height;
(ii) the Bamboo hedge being Group 3 should be cut back 3 metres towards the house to give back existing views which the Applicants’ enjoyed from the kitchen window;
(c)the trees in Group 4 are to be pruned to reduce the overall height by 1 metre or equal to the height of the Group 3 trees;
(d)the stems of Golden Canes in Group 5 must be removed to reduce their height by at least 3 metres to restore the pre-existing view enjoyed by the Applicants;
(e)all of the trees require strict maintenance to be carried out on a regular basis to ensure the trees are at a reasonable height, width and shape;
(f)maintenance works are to be carried out by a qualified AQF Level 3 arborist every 12 months to ensure that the subject trees which are non-native Bamboo trees and Golden Cane do not interfere with the Applicants’ pre-existing view and that the trees are properly maintained.
I am fully cognizant of the fact that the Applicants’ view may, in any event over time, be negatively impacted by the vegetation on the foreshore. This is a separate issue and not relevant to the dispute between the two parties.
I am further satisfied that:
(a)the cost of any works required to maintain or remove any of the subject trees is to be borne by the Respondent;
(b)it is advisable that the Respondent obtain regular reports from a qualified arborist, at her cost, to ensure that the risk value and nuisance potential of the trees is monitored.

Conclusions

Based on the evidence from the tree assessor and in particular the photographic evidence provided by both parties, the Tribunal concludes that the subject trees should be pruned and maintained to ensure that the Applicants’ pre-existing views are re-instated and that the subject trees do not cause further nuisance to the Applicants’ property and enjoyment of their property.

Orders

Based on the reasons provided above, the Tribunal determines that the following orders should be made:-
(a)the trees in Groups 1, 2, 3 and 5 are to be maintained to a height which does not interfere with the views from the Applicants’ property;
(b)the trees in Group 4 are to be pruned to reduce the overall height by 1 metre or equal to the height of the Group 3 trees;
(c)the stems of Golden Canes in Group 5 are to be removed to reduce their height by at least 3 metres to restore the pre-existing view enjoyed by the Applicants;
(d)strict maintenance of all the subject trees is to be carried out by the Respondent on a regular basis;
(e)maintenance works are to be carried out by a qualified AQF Level 3 arborist every 12 months to ensure that the subject trees which are non-native Bamboo trees and Golden Cane do not interfere with the Applicants’ pre-existing view and that the trees are properly maintained;
(f)the cost of all maintenance works is to be borne by the Respondent;
(g)the Respondent is to carry out the initial maintenance works on or before 10 March 2025.