McDonald v Henry

Kim Maree McDonald applied to the Queensland Civil and Administrative Tribunal for an order requiring her neighbour, Margaret Denise Henry, to remove a Millettia Pinnata tree from the latter's property. Ms McDonald argued that the tree was likely to cause serious damage to her property and caused substantial, ongoing and unreasonable interference with her use and enjoyment of her land. Mrs Henry did not appear or defend the application. The Tribunal found that the tree was likely to cause serious damage to Ms McDonald's property due to its close proximity to the dividing fence and her dwelling, and the encroachment of roots onto her property. However, the Tribunal found that the leaves and pods dropped by the tree did not constitute a substantial, ongoing and unreasonable interference, and the minor shade it cast on Ms McDonald's property was part of the natural incidence of a suburban landscape that includes trees. The Tribunal ordered Mrs Henry to arrange for the removal of the tree and its stump by a qualified arborist, at her own cost, within 90 days of the order.

The Tribunal had to decide whether the tree was likely to cause serious damage to Ms McDonald's property and whether it caused substantial, ongoing and unreasonable interference with her use and enjoyment of her land. The Tribunal found that the tree was likely to cause serious damage because it was planted so close to the dividing fence and Ms McDonald's dwelling, and the roots already encroached upon her property and extended to her dwelling. However, the Tribunal found that the leaves and pods dropped by the tree did not constitute a substantial, ongoing and unreasonable interference, and the minor shade it cast on Ms McDonald's property was part of the natural incidence of a suburban landscape that includes trees. The Tribunal ordered Mrs Henry to arrange for the removal of the tree and its stump by a qualified arborist, at her own cost, within 90 days of the order.