Johnson v Burns - [2025] QCAT 114

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Johnson v Burns [2025] QCAT 114

PARTIES:

GEORGE RAYMOND JOHNSON

(applicant)

v

RACHEL AMANDA BURNS

(respondent)

APPLICATION NOS:

MCDO570/22

NDR160-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 March 2025

HEARING DATE:

29 January 2025

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.      The respondent, at her cost and within two months of this order:

(a)     remove tree number one described in the tree table on page 2 of the tree assessment report by Mr Steven Richards dated 8 August 2023 and filed in the Tribunal on 15 September 2023 (‘Mr Richards’ tree assessment report’) and the stump by either stump grinding or suitable chemical poisoning; and

(b)     prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging the applicant’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

2.      The respondent, at her cost and not less than once a year commencing within twenty-eight days of 1 July 2026 and thereafter within twenty-eight days of 1 July in each succeeding year, prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging the applicant’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

3.      The work required by orders 1 and 2 be carried out:

(a)     by an Australian Qualified Framework level 3 arborist with appropriate insurance cover; and

(b)     in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

4.      The respondent keep clear and maintain the area of her land adjacent to the fence on the common boundary between the applicant’s land and the respondent’s land described in Mr Richards’ tree assessment report as an easement to the standard described and depicted in the report.

5.      The applicant give the respondent and any person engaged by her such access to the applicant’s land as they may reasonably require to carry out the work in orders 1 and 2 on not less than seven days’ notice by email.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE – FENCE AND TREES DISPUTES – DISPUTES BETWEEN NEIGHBOURS – fence dispute – fence dispute withdrawn – tree dispute – orders sought for removing or reducing the height of bamboo and maintaining trees on common boundary – counter-application for costs and compensation for distress and inconvenience – whether branches overhanging the applicant’s land – whether trees causing substantial, ongoing and unreasonable interference – whether the respondent is entitled to compensation – whether orders recommended by a tree assessor should be made

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 52, s 61, s 63, s 66, s 70, s 71, s 72, s 73, s 74, s 75

Finch v Grahle [2017] QCAT 80

Graham & Ors v Welch

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 Johnson v Burns

Details

AGLC: Johnson v Burns [2025] QCAT 114
Case: [2025] QCAT 114
Decision Date: 10 March 2025

CaseChat Overview and Summary

In the case of Johnson v Burns, the dispute arose between two neighbours over the maintenance and height of trees on a common boundary, following the withdrawal of a previous fence dispute. The applicant, Mr Johnson, sought orders to have certain trees removed or their height reduced, and for the trees on the common boundary to be maintained. The respondent, Mrs Burns, countered by seeking compensation for distress and inconvenience and requested that the orders recommended by a tree assessor be implemented. The primary issue before the court was whether the trees in question were causing substantial, ongoing, and unreasonable interference with Mr Johnson’s use and enjoyment of his land, and if so, whether Mrs Burns was entitled to any compensation.

The court considered the evidence and the tree assessment report by Mr Steven Richards, which identified specific trees causing issues and recommended actions to mitigate the interference. The court found that the trees were indeed causing substantial, ongoing, and unreasonable interference and that the recommended orders were appropriate. It was determined that Mrs Burns was not entitled to compensation as the interference was not of a nature that would warrant such a remedy. The court thus upheld the recommended orders, which included the removal of one tree, pruning of others to remove overhanging branches, and the maintenance of an easement area for tree maintenance access.

In summary, the court ordered Mrs Burns to remove one tree and prune several others to prevent branches from overhanging Mr Johnson’s property. Additionally, she was required to maintain a clear area adjacent to the common boundary for tree maintenance access. These orders were to be carried out by a qualified arborist in accordance with industry standards. Mr Johnson was to provide reasonable access to his property for these purposes. No compensation was awarded to Mrs Burns.

Orders

Orders of the court

1. The respondent, at her cost and within two months of this order:

(a) remove tree number one described in the tree table on page 2 of the tree assessment report by Mr Steven Richards dated 8 August 2023 and filed in the Tribunal on 15 September 2023 (‘Mr Richards’ tree assessment report’) and the stump by either stump grinding or suitable chemical poisoning; and

(b) prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging the applicant’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

2. The respondent, at her cost and not less than once a year commencing within twenty-eight days of 1 July 2026 and thereafter within twenty-eight days of 1 July in each succeeding year, prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging the applicant’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

3. The work required by orders 1 and 2 be carried out:

(a) by an Australian Qualified Framework level 3 arborist with appropriate insurance cover; and

(b) in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

4. The respondent keep clear and maintain the area of her land adjacent to the fence on the common boundary between the applicant’s land and the respondent’s land described in Mr Richards’ tree assessment report as an easement to the standard described and depicted in the report.

5. The applicant give the respondent and any person engaged by her such access to the applicant’s land as they may reasonably require to carry out the work in orders 1 and 2 on not less than seven days’ notice by email.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The orders recommended by Mr Richards, in my opinion, are appropriate.Conclusion and orders The orders of the Tribunal are as follows:1.Mrs Burns, at her cost and within two months of this order:(a) remove tree number one described in the tree table on page 2 of the tree assessment report by Mr Steven Richards dated 8 August 2023 and filed in the Tribunal on 15 September 2023 (‘Mr Richards’ tree assessment report’) and the stump by either stump grinding or suitable chemical poisoning; and(b) prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging Mr Johnson’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.2.Mrs Burns, at her cost and not less than once a year commencing within twenty-eight days of 1 July 2026 and thereafter within twenty-eight days of 1 July in each succeeding year, prune trees numbers two – nine (both inclusive) described in the tree table on page 2 of Mr Richards’ tree assessment report to remove any branches overhanging Mr Johnson’s land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees. 3.The work required by orders 1 and 2 be carried out:(a) by an Australian Qualified Framework level 3 arborist with appropriate insurance cover; and(b) in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.4.Mrs Burns keep clear and maintain the area of her land adjacent to the fence on the common boundary between the Mr Johnson’s land and Mrs Burns’ land described in Mr Richards’ tree assessment report as an easement to the standard described and depicted in the report. 5.Mr Johnson give Mrs Burns and any person engaged by her such access to the Mr Johnson’s land as they may reasonably require to carry out the work in orders 1 and 2 on not less than seven days’ notice by email.

Ratio Decidendi

Legal Principle Established

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