McIntyre v Jansson
[2025] QCAT 421
•22 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McIntyre v Jansson [2025] QCAT 421
PARTIES:
CAROLYN MCINTYRE
COLIN CARRIGAN(applicants)
v
MIRIAM KAY JANNSON (respondent)
APPLICATION NO/S:
NDR186-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
22 October 2025
HEARING DATE:
22 July 2025
HEARD AT:
Brisbane
DECISION OF:
Member Lee Benjamin
ORDERS:
1. Ms Miriam Kay Jannson, the registered owner of the lot at 171A Mooloolaba Road Buderim, will arrange for a hazard reduction prune of the Cadaghi tree overhanging the lot at 3 Foote Avenue Buderim, the registered owners of which are Ms Carolyn McIntyre and Mr Colin Carrigan.
2. The hazard reduction prune of the Cadaghi tree will be undertaken by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3, at Ms Jannson’s sole cost.
3. Ms Jannson will give to Ms McIntyre and Mr Carrigan not less than 14 days notice in writing of the arborist’s intention to attend and prune the Cadaghi tree.
4. Ms McIntyre and Mr Carrigan will give access to the arborist engaged by Ms Jannson to carry out the hazard reduction prune of the Cadaghi tree.
5. The hazard reduction prune of the Cadaghi tree is to be completed within 90 days of the date of this Order.
6. After the hazard reduction prune of the Cadaghi tree in accordance with Orders 1 to 5, there will be an annual hazard reduction prune of the Cadaghi tree in accordance with Orders 1 to 4, on or before the anniversary of the first hazard reduction prune.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant alleges trees cause excess leaf litter, and risk of injury – where applicants failed to file evidence to support their assertions – consideration of the maintenance of leaf litter required for trees – not a substantial, ongoing and unreasonable interference with the use and enjoyment of land – simple hazard reduction required to prevent serious injury to any person, to prevent serious damage or interference
Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 41, s 46(a)(i), s 48, s 49, s 61, s 65(a), s 65(d), s 66(2), s72, s 73
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondent:
Katherine Gentile
REASONS FOR DECISION
What is this decision about?
This decision is about a tree dispute.
Ms McIntyre[1] says that branches from Ms Jannson’s trees[2] overhang her property in Buderim. Ms McIntyre contends that, among other things, in recent years, tree branches have fallen on, and damaged, the roof of her deck. Ms McIntyre says the tress have caused significant leaf litter, with resultant rotting of timber decking and blocking of gutters and drains. Ms McIntyre also says she is afraid of the trees falling on her home, herself and her family. Ms McIntyre seeks an order for the trees to be removed at Ms Jannson’s expense. Ms Jannson is willing to have the trees pruned presently and in the future, in accordance with an arborist’s report, with the costs shared equally by both parties.
[1]Ms McIntyre and Mr Carrigan are the Applicants (collectively referred to as Ms McIntyre).
[2]A “Cadaghi” tree (Tree 1) and a “Flame” tree (Tree 2) are collectively, (the trees).
The first question for the Tribunal is whether an order in relation to the trees is appropriate to prevent serious injury to any person, or to prevent serious damage or interference. On the basis of the arborist’s report, the answer to this question is yes for Tree 1 and no for Tree 2. The second question is what actions should follow. The Tribunal finds, and orders that, Tree 1 should be pruned within 90 days, and on an ongoing annual basis, in accordance with the arborist’s report, at Ms Jannson’s sole expense.
Jurisdiction
The Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (ND Act) is an enabling Act empowering the Tribunal to make orders about trees.
I am satisfied, based on the parties’ submissions, that:
(a)Ms McIntyre is a neighbour;[3]
(b)Ms Jannson is a tree keeper;[4]
(c)there are, situated on Ms Jannson’s land, trees immediately adjacent to the boundary fence between Ms McIntyre’s land and Ms Jannson’s land;
(d)the trees’ branches extend over Ms McIntyre’s land;
(e)Ms McIntyre’s land is affected by the trees;[5]
(f)Ms McIntyre has made a reasonable effort to reach agreement with Ms Jannson about the trees;[6]
(g)Ms Jannson was served with the originating application;[7] and
(h)the Tribunal has jurisdiction to decide the tree dispute.[8]
[3]ND Act s 49.
[4]Ibid s 48.
[5]Ibid s 46(a)(i).
[6]Ibid s 65(a).
[7]Ibid s 65(d).
[8] Ibid s 61.
What does the law say?
Under the ND Act, a tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s trees.[9] A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[10]
[9]Ibid s 41(1).
[10]Ibid s 72.
The ND Act provides that the Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land:
(a)to prevent serious injury to any 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.[11]
11 Ibid s 66(2).
As applicant, Ms McIntyre bears the onus of proving her case on the balance of probabilities. Each party may file evidence and make submissions to the Tribunal in support of their case. In deciding an application, the Tribunal must make findings about the facts and apply the law to the same.
What do the parties and tree assessor say?
The Tribunal directed, over several sets of directions, the parties to make, and reply to, submissions in the substantive application. The parties availed themselves of these opportunities to outline their respective positions. The parties also agreed, and the Tribunal directed, that an independent arborist carry out an inspection of the trees and prepare a report to the Tribunal. The parties also provided submissions in response to the same.
Ms McIntyre and Ms Gentile (on behalf of Ms Jannson) attended the hearing. At the same, the parties’ oral submissions by and large followed their written submissions.[12]
[12]The parties declined to cross-examine each other.
Ms McIntyre’s contentions may be summarised as follows:
(a)the trees (which she described as “widow makers”) are likely to cause serious injury within the next 12 months because a branch that appears to be dead overhanding Ms McIntyre’s house would, if it fell on anyone, kill them;
(b)the trees have caused serious damage to Ms McIntyre’s property because:
(i) on two occasions, a branch has fallen through the roof on her deck;
(ii) the roots have “cracked” her driveway;
(iii) they have dropped enough flower and leaf litter to block gutters, pipes and drains resulting in water overflow in the house and land and rotting timber decking over several years; and
(iv) the trees have pushed over a boundary fence;
(c)Ms McIntyre regularly cleans up leaf litter from her yard and gutters, including during rainstorms and other weather events, to reduce the risk of damage and injury;
(d)Ms McIntyre and her family avoid (and are afraid to use) the area of their land and house where the trees overhang; and
(e)the tree has caused substantial, ongoing and unreasonable interference with the use and enjoyment because Ms McIntyre and her family are “terrified” that the trees will fall over every time there is a storm, including concern for her dogs.
Ms McIntyre seeks an order for the trees to be removed at Ms Jannson’s expense.
Ms Jannson’s contentions may be summarised as follows:
(a)the trees pose no risk of falling over because they are healthy and at least 80 years old;
(b)trees (other than the subject trees) surrounding Ms McIntyre’s house are causing the rotting of her deck;
(c)removing the overhanding tree branches will stop the tree resin falling on Ms McIntyre’s home;
(d)the trees’ leaf litter alone will not cause flooding and are not excessive or hazardous;
(e)while there may be two hairline cracks in Ms McIntyre’s driveway, this does not constitute serious damage or interference and there is a lack of independent evidence to support Ms McIntyre’s contentions in this regard; and
(f)it is impossible to access the trees’ branches from Ms McIntyre’s property without bulldozing Ms McIntyre’s shed, carport and gardens.
Ms Jannson opposes the removal of the trees but is willing to have Tree 1 and Tree 2 pruned presently and, in the future, in accordance with an arborist’s report with the costs shared equally by both parties.
The arborist’s report in this application, prepared by Mr Steven Richards, on 9 May 2023, may be summarised as follows:
(a)the trees are both mechanically robust and structurally sound specimens that are perfectly suited to the surround environment. The trees are of a significant age and for the most part, infrastructure has encroached upon their existence and not the reverse;
(b)risks associated with falling deadwood and extended limbs can be mitigated with pruning;
(c)leaf and flower drop is not deemed to be excessive or hazardous given they are native trees and their extent of shedding is proportionate to their native attributes;
(d)the trees are an amenity asset to the wider community for both their environmental benefits as well as their status as remnant vegetation;
(e)Tree 1 requires a simple hazard reduction prune over Ms McIntyre’s property to reduce the risk of falling dead wood and reducing in weight any laterally extended limbs with a greater propensity for failure:
(i) Care must be taken not to unbalance the subject tree or reduce limbs too much – a mature tree of this size and age takes a long time to occlude pruning wounds so large wounds or removal of branches to the truck is not recommended as decay can occur at the pruning site before wounds close;
(ii) A small among of weight removed at the limb extremities can reduce a significant amount of load entire branch and is more than sufficient for hazard reduction and risk mitigation;
(iii) All deadwood in excess of 20mm in diameter should be removed from the northern side of the tree over Ms McIntyre’s property;
(iv) Ideally, these recommendations would performed globally through the subject tree;
(v) No serious damage to land or property is expected to occur within the next 12 months. The tree is a robust specimen.
(f)Tree 2 requires no work at this time.
(g)It is recommended that the works be conducted in accordance with the specifications outlined above, by a suitably qualified arborist (Australian Qualifications Framework Level 3 arborist) with appropriate insurances.
Ms Jannson appears to accept the arborist’s report. Ms McIntyre contests parts of the arborist’s report, including but not limited to the history of the trees, but offered no independent evidence (including witness evidence) about the same or to otherwise negate the report’s key conclusions.
Discussion
I will now address Ms McIntyre’s key contentions about the tree.
The trees have caused substantial, ongoing and unreasonable interference
Based on the materials before me, I accept that trees have caused some interference with Ms McIntyre’s property. However, there does not appear to be sufficient evidence to substantiate that such interference can be properly characterised as substantial and unreasonable. As Ms Jannson notes in her submissions, “substantial" in this regard is a word not given any special meaning in the ND Act. It is a word in common usage. In the context in which it is used in the Act, it indicates on-going and unreasonable interference with enjoyment of use of the land which in substance, is of real or considerable importance. Ms McIntyre’s complaints do not appear to raise to this standard.
While it can easily be accepted that the trees create leaf litter, the arborist’s report indicates that leaf and flower litter in this case is neither excessive nor hazardous. It is well established that leaf litter deposited by a tree will not be sufficient, without more, to form the basis for an order about the tree. Past Tribunals have repeatedly found that the presence of trees requires all residents to take some responsibility for cleaning leaf litter on a regular basis. Leaf and related litter do not constitute substantial, ongoing and unreasonable interference with the use and enjoyment of land.
Ms McIntyre advanced submissions that the trees have caused driveway cracking and dividing fence damage. However, no independent evidence was offered in support of the same. The arborist’s report made mention of two hairline cracks being observed in the driveway, but the cracks are not visible in the photos contained within the report.
The tree is likely to cause serious injury within the next 12 months or damage land (or property on the land)
Despite Ms McIntyre’s submissions that the trees are “widow makers” and likely to cause serious injury or damage within the next 12 months, Ms McIntyre offered limited substantive evidence to support such a proposition.
While I can and do readily accept that Ms McIntyre is concerned about what could happen with the trees (i.e., the trees could fall over), the most compelling evidence before me on this point is the arborist’s report, which says that the trees are both mechanically robust and structurally sound.
In accordance with section 72 of the ND Act, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. On my reading of the materials filed in this application and considering the submissions presented at the hearing, there does not appear to be a sound basis for Ms McIntyre’s application seeking an order for removal of the trees.
However, consistent with the arborist’s report, I am satisfied that because there are Tree 1 branches that appear to be dead and overhanding Ms McIntyre’s house, it is appropriate for the Tribunal to make orders about Tree 1. The orders are to prevent serious injury to any person, to prevent serious damage or interference. According to the arborist, Tree 1 requires a straightforward hazard reduction prune over Ms McIntyre’s land to reduce the risk of falling dead wood and reducing in weight any laterally extended limbs with a greater propensity for failure.
For the reasons set out in the arborist’s report, it appears that no work is required for Tree 2. I am not satisfied that it is appropriate for the Tribunal to make an order about Tree 2.
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