Lowrey v Fryer - [2025] QCAT 79

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lowrey v Fryer [2025] QCAT 79

PARTIES:

DARRYL JOHN LOWREY

(applicant)

v

SIMON JAMES FRYER

(respondent)

APPLICATION NO/S:

NDR196-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

3 March 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Proceeding dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant alleges trees cause excess leaf litter, obstruction of sunlight, and risk of injury – where applicant failed to file evidence to support his assertions – consideration of the maintenance of leaf litter required in an urban environment with trees – obstruction of sunlight to yard not a substantial, ongoing and unreasonable interference with the use and enjoyment of land

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 46(a)(i), s 48, s 49, s 61, s 65(a), s 65(d), s 66(2), s 66(3)(b)(i)

Thomsen v White [2012] QCAT 381

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

What is this proceeding about?

This proceeding about a tree dispute falls to be determined on the papers.
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.
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
The relevant enabling Act giving QCAT the power to make orders about trees is the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (‘ND Act’).
I am satisfied that:
(a)Mr Lowrey is a neighbour;[1]
(b)Mr Fryer is a tree keeper;[2]
(c)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’);
(d)The branches of the trees extend over Mr Lowrey’s land;
(e)Mr Lowrey’s land is affected by the trees;[3]
(f)Mr Lowrey has made a reasonable effort to reach agreement with Mr Fryer about the trees;[4]
(g)Mr Fryer has been served with the originating application;[5]
(h)The Tribunal has jurisdiction to decide the tree dispute.[6]
[1]ND Act, s 49.
[2]ND Act, s 48.
[3]ND Act, s 46(a)(i).
[4]ND Act, s 65(a).
[5]ND Act, s 65(d).
[6]ND Act, s 61.
What do the parties say?
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.
Following the directions hearing Mr Lowrey filed very brief submissions accompanied by two photographs. Mr Fryer filed no evidence…

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 Lowrey v Fryer

Details

AGLC: Lowrey v Fryer [2025] QCAT 79
Case: [2025] QCAT 79
Decision Date: 3 March 2025

CaseChat Overview and Summary

The matter of Lowrey v Fryer involved a dispute between neighbours in relation to the trees owned by the respondent, Fryer. The applicant, Lowrey, alleged that the trees caused an excess of leaf litter, obstructed sunlight to his yard, and posed a risk of injury. The case was heard and determined by the Environmental Planning Tribunal. The primary legal issues before the Tribunal were whether the trees constituted a risk of serious injury or damage to Lowrey's land and property, and whether the obstruction of sunlight amounted to a substantial, ongoing and unreasonable interference with the use and enjoyment of Lowrey's land.

The Tribunal considered the evidence presented by Lowrey and found that he had failed to provide sufficient evidence to support his claims. In particular, Lowrey did not provide evidence to substantiate his assertions regarding the risk of injury from the trees, the excess of leaf litter, or the obstruction of sunlight to his yard. The Tribunal also considered the maintenance of leaf litter in an urban environment with trees, and concluded that the obstruction of sunlight to Lowrey's yard did not amount to a substantial, ongoing and unreasonable interference with his use and enjoyment of his land.

As a result, the Tribunal was not satisfied that it was appropriate to make an order about the trees to prevent serious injury to a person or to prevent damage to Lowrey's land or property. The proceeding was dismissed.

ORDER:
1. Proceeding dismissed.

Orders

Orders of the court

1. Proceeding dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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