May v Heywood - [2025] QCATA 99

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

May & Anor v Heywood [2025] QCATA 99

PARTIES:

IAN LESLIE CHARLES MAY

(first applicant/appellant)

VALMA RUTH DUNSTAN

(second applicant/appellant)

v

DIANNE RHONDA HEYWOOD

(respondent)

APPLICATION NO/S:

APL352-25

ORIGINATING APPLICATION NO/S:

NDR039-22

MATTER TYPE:

Appeals

DELIVERED ON:

30 October 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

1. The Appeal Tribunal record is amended to reflect the correct spelling of the Second Respondent as Valma Ruth Dunstan.

2. The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where Tribunal made an order for the tree owners to prune bamboo trees – where application for leave to appeal or appeal and application to stay a decision filed by the tree owners – where applicant tree owners say the Tribunal erred in law by failing to apply s 73(1)(g) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), by taking into account an irrelevant consideration, by applying the wrong test; and/or failing to take into account a relevant consideration, and by making a finding on no evidence – whether applicants raise a reasonably arguable case of error – whether the Appeal Tribunal should grant a stay of the pruning orders

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 66(3)(b)(ii), s 73, s 73(1)(g), s 73(1)(d), s 73(1)(e)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 58, s 145

Allen & Anor v Queensland Building and Construction Commission [2024] QCA 24

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453
Day v Humphrey [2017] QCA 104
Hamrod v Suncorp Metway [2006] NSWCA 243
Hessey-Tenny v Jones [2018] QCATA 131

Rintoul v Sate of Queensland & Others [2018] QCA 20

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

I make an order that the Appeal Tribunal record is amended to reflect the correct spelling of the Second Respondent as Valma Ruth Dunstan.
On 5 August 2025 the applicants Ian May and Valma Dunstan were ordered to prune certain bamboo so that it is no taller than 2.5 metres from the base of the bamboo on or before 1 November 2025. Other orders were made in relation to regular maintenance and for the tree owners to meet the cost incurred by the neighbour for the pruning work in the circumstance that the work is not undertaken by the tree owners.
Mr May and Ms Dunstan have filed an application for leave to appeal or appeal and an application to stay the decision pending the appeal.
Both parties have filed submissions in the stay application.
In order to obtain a stay of a decision an applicant must show a reasonably arguable case on the appeal, that the applicant would be materially disadvantaged without a stay and that the balance of convenience favours a stay.[1]
[1]Day v Humphrey [2017] QCA 104, [6].
It is also relevant to consider the nature of the grounds of appeal raised, whether it is reasonably arguable that leave to appeal might be granted and in the case of questions of law alone whether the alleged errors are reasonably arguable on appeal.
Mr May and Ms Dunstan have raised grounds of appeal discussed below. Insofar as they have raised questions of fact or mixed law and fact, leave to appeal is required. The usual considerations as to whether leave to appeal should be granted include whether a reasonably arguable case on appeal is shown, that is, there is an error to be corrected. Beyond that the Appeal Tribunal considers whether an appeal is necessary to correct a substantial injustice, that is, whether a different and more favourable result would have been achieved if not for the error,[2] and whether an important point of principle sufficient to warrant the grant of leave has been identified.[3]
[2]Rintoul v Sate of Queensland & Others [2018] QCA 20, [10].
[3]Allen & Anor v Queensland Building and Construction Commission [2024] QCA 24, [21]–[23].
Where leave to appeal is required, the Appeal Tribunal may grant a stay under s 58 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’).[4]
[4]Hessey-Tenny v Jones [2018] QCATA 131, [19]–[24].
Where questions of law alone are raised leave to appeal is not required and the stay is determined by reference to such a question under s 145 of the QCAT Act.
In assessing whether the grounds of appeal are reasonably arguable, no findings are made and a preliminary assessment only is undertaken.

Consideration

It is a starting point in any stay application that a successful party is entitled to the fruits of the litigation, and that an order of the Tribunal is not provisional pending an appeal.[5] Balancing those considerations is that a stay should be ordered where the appeal would be rendered nugatory without a stay.
[5]Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453, [12].

Reasonably arguable grounds

Mr May and Ms Dunstan raise eight grounds of appeal.
The errors of law are said to be:
(a)Failing to take into account wind protection as a relevant consideration for the purpose of s 73(1)(g) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). This ground is coupled with an alleged error of fact in the Member finding Mr May and Ms Dunstan did not raise wind protection.
(b)Taking into account an irrelevant consideration, namely the view from the pergola for the purpose of s 66 of the Act and for determining the height to which the bamboo should be pruned. Noting that this error is said to arise from a mixed error of law and fact as to whether the pergola is a dwelling.
(c)Applying the wrong test; and/or failing to take a relevant consideration into account in failing to make any or any proper finding as to the view that existed from the respondent’s dwelling when she took possession of the land.
(d)Finding, on no evidence, that bamboo is considered by many experts and local authorities as a pest or weed and finding it is not indigenous to Stradbroke Island.
(e)Not applying s 73(1)(g) of the Act or taking an irrelevant consideration into account in finding that the applicants could achieve privacy using other means such as internal and/or external blinds, awnings or screens.
(f)Not applying s 73(1)(g) of the Act and/or taking into account an irrelevant consideration when finding that the bamboo is unattractive and does not add to the landscaping or garden design.
(g)Failing to take into account a relevant consideration, namely the applicants’ submissions as to how regularly pruning should take place.
In relation to the alleged errors of law in failing to apply s 73(1)(g) of the Act:
(a)It is true that the Member mistakenly said that Mr May and Ms Dunstan did not raise wind protection as a reason why it is important to retain the bamboo. Wind protection is raised in paragraph 36 to the statement of evidence of the applicants.
(b)The Member’s obligation under s 73 of the Act is to “consider” the matters set out in the section by way of balancing the interests of the parties. The obligation is only to consider, that is to think about or turn his mind to the matters in the section, it is not necessary to make a finding about any of the matters.[6] Section 73(1)(g) of the Act requires the Member to consider any contribution the bamboo makes to the amenity of the land on which it is situated.
(c)The evidence about wind protection overlooked by the Member was given as an adjunct to more extensive submissions in relation to the privacy afforded by the bamboo, which is said to be the reason for planting the bamboo. No supporting evidence is offered in relation to the bamboo as a wind break.
(d)Although error might be demonstrated it is necessary for the asserted error to be material in the sense that a different outcome would have been reached if the error did not occur.[7] I do not think that the determination as to whether the bamboo substantially interfered with Ms Heywood’s view, would have been different if the Member had noted the comment as to wind protection given the limited evidence and apparent limited importance of the issue. It is unlikely that this ground of appeal would succeed, because the error is not material.
(e)Mr May and Ms Dunstan say that it was a misapplication of s 73(1)(g) of the Act to find there were other means to achieve privacy; and/or that an irrelevant consideration was taken into account. The statement made by the Member was an observation rather than a finding. It was made in the course of considering the amenity of the land. The observation is consistent with a consideration of the amenity of the land. I do not think the observation as to alternative means of achieving privacy means that an irrelevant consideration has been taken into account when merely giving consideration to a matter. I do not consider that there has been a misapplication of the Act. Privacy has been considered by the Member in weighing up the appropriate order. Apart from his observations as to alternative means of achieving privacy the Member goes on to conclude that even pruned to a height of 2.5 metres a level of privacy could be afforded to Mr May and Ms Dunstan’s dwelling. For these reasons I do not consider the ground of appeal is likely to succeed.
(f)Mr May and Ms Dunstan say that it was a misapplication of s 73(1)(g) or an irrelevant consideration to find that the bamboo is unattractive and does not add to landscaping or garden design. The statement made by the Member was an observation rather than a finding. It was made in the course of considering the amenity of the land. The observation is consistent with a consideration of the amenity of the land, noting that the Member had photographs of the bamboo before him.I do not consider an error of law has occurred or that an irrelevant consideration was taken into account. But in any event the ground of appeal is unlikely to succeed because any error with respect to this matter is not material to the decision. Mr May and Ms Dunstan did not advance the attractiveness of the current state of the bamboo as a reason why it should be retained in its current form from a landscaping or garden design perspective.
[6]Collins English Dictionary — Complete & Unabridged (online at 30 October 2025) ‘consider’ (def 1).
[7]Hamrod v Suncorp Metway [2006] NSWCA 243, [11].
As to an alleged finding on no evidence that bamboo is considered by many experts as a pest or weed, and is not indigenous to Stradbroke Island, I consider the statement made by the Member is an observation not a finding. It arises as part of a consideration of s 73(1)(d) and (e) of the Act, so that no finding is necessary. The observation is in any event supported by evidence before the Tribunal in a Courier-Mail newspaper article addressing the problems caused by bamboo in general. The Member particularly noted the height the bamboo in question had reached up to 6 metres, extends 10 metres along the common boundary and that the base is more than 2 to 3 metres. These features are all outside the evidence as to what might be anticipated for the species of bamboo in question. The ground of appeal is unlikely to succeed.
As to pruning, the member has noted that Mr May and Ms Dunstan are prepared to prune the bamboo, but have not done so. Their evidence is that they are prepared to prune frequently, and they submit that was not taken into account. In the end the Member ordered pruning to a height of 2.5 metres to be regularly maintained. This ground of appeal is unlikely to succeed, because the order made is consistent with the evidence of Mr May and Ms Dunstan’s stated intentions. The ground of appeal is not material to the outcome.
The question of whether Ms Heywood’s pergola is caught as a dwelling by s 66(3)(b)(ii) is of more importance. I consider it was open to the Member to find that the pergola is part of the main dwelling because it is physically connected by water, electricity and drainage and is used for entertainment, eating and relaxation. Mr May and Ms Dunstan assert that it was an error not to make a finding that the pergola was a shelter such as a house in which people live. On the Member’s reasoning such a finding was not necessary because he found the pergola was part of the main house (which is plainly a dwelling). The Member made his finding on evidence before him, accordingly that finding of mixed fact and law is unlikely to be set aside on appeal.
If the Member was not in error to find that the pergola was part of the dwelling, it is unlikely Mr May and Ms Dunstan will succeed in in establishing an error of law by taking an irrelevant consideration into account, in considering the view that exists and existed from the pergola for the purpose of s 66 of the Act, and for the purpose of determining the height to which the bamboo should be pruned.
If I am wrong about the likely outcome of this ground of appeal, I note that the Member did not limit his findings as to obstruction of the view, to a view from the pergola. He relied on evidence before him to find obstruction of the view from the main dwelling. That was a finding open to him on the evidence and is unlikely to be overturned by an appeal tribunal.
Finally, it is said that the Tribunal erred in law by applying a wrong test and/or taking an irrelevant consideration into account, in failing to make any, or any proper finding as to the view that existed from Ms Heywood’s dwelling when she took possession of the land. The ground of appeal is unlikely to succeed because of the findings made in the reasons for decision at paragraph [34] in relation to the view from the pergola in 2015, paragraph [41] noting that the bamboo was planted after Ms Heywood purchased her lot in 2015, and paragraphs [36], [37] and [38] that the bamboo impacts the views from windows 1,2,3, other living areas in the upstairs part of Ms Heywood’s dwelling, and from the pergola.
On a preliminary assessment Mr May and Ms Dunstan have not shown a reasonably arguable case of error. It is unlikely that leave to appeal would be granted in this matter or that the grounds raising an error of law would succeed on appeal.
Further to that point no substantial injustice appears to be demonstrated, and no important question is raised by the appeal.

Balance of convenience

As to the balance of convenience it is true that compliance with the order will mean lowering the height of the bamboo and that some cost will be incurred. If Mr May and Ms Dunstan were to succeed in the application for leave to appeal or appeal the issue of cost incurred can be addressed. As to the height of the bamboo, it is most likely that the bamboo will grow. No-one suggests that bamboo does not re-grow if pruned. Mr May and Ms Dunstan will not have suffered an irredeemable prejudice or a material disadvantage if a stay is not granted.
Ms Heywood rejects the submission by Mr May and Ms Dunstan that she should put up with any interference to her view because the bamboo has been in place for years. She notes two adjournments at the request of Mr May and Ms Dunstan have caused delay and the matter has been ongoing since February 2022. Over time the obstruction of her views caused by the bamboo has become worse. Ms Heywood says that a stay will delay an outcome whilst she continues to lose views and the enjoyment of her property. She says that she is affected more than the respondents if a stay is granted.
I accept Ms Heywood’s submissions. Ms Heywood is entitled to the benefit of the orders made in her favour to ameliorate what has been found to be a substantial, ongoing and unreasonable interference with the use and enjoyment of her land. That relief should not be delayed on the basis of unmeritorious grounds of appeal.
The application to stay a decision is refused.