McLachlan v Williams (No 2) - [2025] QCAT 312

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McLachlan & Anor v Williams (No 2) [2025] QCAT 312

PARTIES:

MARGO MCLACHLAN

(First Applicant)

ANDREW MCLACHLAN

(Second Applicant)

v

PAUL GARNET WILLIAMS

(Respondent)

APPLICATION NO/S:

NDR 211-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

12 August 2025

HEARING DATE:

10 February 2025

21 May 2025

DECISION OF:

Member Taylor

ORDERS:

1.     The respondent must cause the following work to be carried out to the eleven (11) trees on his land at 56 Beauvardia St, Cannon Hill, Qld, 4170, such being more particularly identified in (a) below as those trees located along the common boundary with the adjoining land at 56 Beauvardia St, Cannon Hill, Qld, 4170:

(a)     The trees are:

(i)        T #1 – Easter cassia

(ii)      T #2, #5 – Chinese Elm

(iii)     T #3, #6, #8, #10, #11 – Melaleuca Leucadendra

(iv)      T #4 – Melaleuca Bracteata

(v)       T #7 – Lilly Pilly

(vi)      T #9 – Himalayan Ash

(b)     Destroy each tree, including removal of its stump, and destruction of its root system but by way of a non-invasive technique to prevent regrowth;

(c)     In all instances all destruction and removal work is to be:

(i)        supervised by a person with a minimum AQF Level 3 Certificate in Arboriculture or international equivalent;

(ii)      performed to conform to AS 4373-2007 or a corresponding horticultural standard; and

(iii)     carried out by a contractor appropriately insured for the purposes of performing such work.

2.     The work under Order 1 herein is to be completed with urgency but not later than 28 calendar days from the date of this order, unless:

(a)     an extended time is agreed to in writing by the applicants, such agreement not to be unreasonably withheld; or

(b)     otherwise ordered by this Tribunal.

3.     To the extent necessary to perform any one or more parts of Order 1 herein, the respondent is permitted access to the applicants’ land, but only having first notified the applicants in writing of the requirement for same, such to have been done not later than 7 calendar days in advance of the access being required.

4.     In the event the respondent fails or refuses to satisfy Order 1 herein, Orders 5 and 6 herein shall apply.

5.     Before any step is taken by the applicants under Order 6 herein:

(a)     the applicants must first notify the respondent, in writing, of their assertion that the respondent has not complied with any one or more parts of Order 1, and requiring him to do so within 14 calendar days thereafter; and

(b)     in the event the respondent continues to either fail or refuse to comply with the relevant part or parts of Order 1 after having received that notice, the applicants may proceed to implement Order 6 herein as necessary following expiry of that 14 days.

6.     For the purposes of performing the work required under Order 1 herein, subject to that provided for under Order 5 herein, this Tribunal authorises:

(a)     the applicants to take…

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 McLachlan v Williams (No 2)

Details

AGLC: McLachlan v Williams (No 2) [2025] QCAT 312
Case: [2025] QCAT 312
Decision Date: 12 August 2025

CaseChat Overview and Summary

The McLachlan v Williams (No 2) case was heard in the Queensland Civil and Administrative Tribunal, where the McLachlans, the plaintiffs, sought relief from the Williams, the defendants, over damage caused by large trees located along and within one metre of their common boundary. The plaintiffs alleged that the trees had invaded their property, causing serious damage and substantial, ongoing, and unreasonable interference with their use and enjoyment of their land. The plaintiffs further contended that the defendants had failed to engage in discussions about the trees and had refused to take the necessary remedial action. The case focused on whether the plaintiffs were entitled to orders for the removal of the trees, compensation for the damage caused by the root invasion, and costs associated with the proceeding.

The legal issues in the case revolved around the interpretation and application of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The primary question was whether the plaintiffs were entitled to orders for the removal of the trees and compensation for the damage caused by the root invasion. Additionally, the court had to consider whether the plaintiffs were entitled to recover the costs of the proceeding. The defendants argued that they were not liable for the damage caused by the trees, while the plaintiffs contended that the defendants were responsible for the damage and should bear the costs of the proceeding.

The court found in favour of the plaintiffs, ordering the defendants to remove the eleven trees located along and within one metre of the common boundary line. The court emphasised that the defendants had failed to engage in discussions with the plaintiffs about the trees and had refused to take the necessary remedial action to prevent further damage. The court also held that the defendants were liable for the damage caused by the root invasion and ordered them to pay compensation to the plaintiffs. Finally, the court awarded costs to the plaintiffs, ordering the defendants to pay the total of $11,142.00, which included compensation and costs of the proceeding.

In summary, the McLachlan v Williams (No 2) case resulted in the Queensland Civil and Administrative Tribunal ordering the defendants to remove the eleven trees along and within one metre of the common boundary line. The defendants were found to be liable for the damage caused by the root invasion and were ordered to pay compensation to the plaintiffs. Additionally, the defendants were ordered to pay the costs of the proceeding, totalling $11,142.00. The court's decision emphasised the importance of neighbours engaging in discussions and taking necessary remedial action to prevent damage and interference with the use and enjoyment of their properties.

Orders

Orders of the court

1. The respondent must cause the following work to be carried out to the eleven (11) trees on his land at 56 Beauvardia St, Cannon Hill, Qld, 4170, such being more particularly identified in (a) below as those trees located along the common boundary with the adjoining land at 56 Beauvardia St, Cannon Hill, Qld, 4170:

(a) The trees are:

(i) T #1 – Easter cassia

(ii) T #2, #5 – Chinese Elm

(iii) T #3, #6, #8, #10, #11 – Melaleuca Leucadendra

(iv) T #4 – Melaleuca Bracteata

(v) T #7 – Lilly Pilly

(vi) T #9 – Himalayan Ash

(b) Destroy each tree, including removal of its stump, and destruction of its root system but by way of a non-invasive technique to prevent regrowth;

(i) supervised by a person with a minimum AQF Level 3 Certificate in Arboriculture or international equivalent;

(ii) performed to conform to AS 4373-2007 or a corresponding horticultural standard; and

(iii) carried out by a contractor appropriately insured for the purposes of performing such work.

2. The work under Order 1 herein is to be completed with urgency but not later than 28 calendar days from the date of this order, unless:

(a) an extended time is agreed to in writing by the applicants, such agreement not to be unreasonably withheld; or

(b) otherwise ordered by this Tribunal.

3. To the extent necessary to perform any one or more parts of Order 1 herein, the respondent is permitted access to the applicants’ land, but only having first notified the applicants in writing of the requirement for same, such to have been done not later than 7 calendar days in advance of the access being required.

4. In the event the respondent fails or refuses to satisfy Order 1 herein, Orders 5 and 6 herein shall apply.

5. Before any step is taken by the applicants under Order 6 herein:

(a) the applicants must first notify the respondent, in writing, of their assertion that the respondent has not complied with any one or more parts of Order 1, and requiring him to do so within 14 calendar days thereafter; and

(b) in the event the respondent continues to either fail or refuse to comply with the relevant part or parts of Order 1 after having received that notice, the applicants may proceed to implement Order 6 herein as necessary following expiry of that 14 days.

6. For the purposes of performing the work required under Order 1 herein, subject to that provided for under Order 5 herein, this Tribunal authorises:

(a) the applicants to take all reasonable and necessary steps to effect that provided for in paragraph (b) herein; and

(b) a person, other than either of the applicants, at the applicants’ request, to enter the respondent’s land for the purposes of carrying out such work, including entering the land for the purposes of initially providing a quotation for carrying out such work.

7. In all instances the respondent is liable for and is to meet the costs of complying with Order 1.

8. In the event a person authorised under Order 6(b) herein carries out that required by Order 1 herein, and/or provides a quote under Order 6(b) herein, and charges a fee for the cost of any part of same by way of an invoice issued to the applicants, the respondent is to meet the payment of same in the first instance promptly following notification to him of such by the applicants. Should the respondent refuse or fail to pay the fee within a reasonable time and the applicant pays same, the applicants may recover from the respondent, as a debt, the fee so paid.

9. The respondent is to otherwise pay to the applicants the total of $11,142.00 being the aggregate of:

(a) $9,790 as compensation under s66(5)(f) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld); and

(b) $1,352 as costs under s102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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