QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
O’Kane v Caughley & Anor [2025] QCAT 213
PARTIES:
RODNEY ERNEST O’KANE (applicant)
v
MARK FRANCIS CAUGHLEY (respondent)
ROBERTA ROSINA BATTAGLIA
(respondent)
APPLICATION NO:
NDR028-24
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
2 June 2025
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Chapple
ORDERS:
1. The Respondent must undertake, on an annual basis, pruning of the three Golden Penda trees to the fence line of the Applicant’s property to formalise a hedge façade.
2. The Respondent must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the work associated with Order 1; and the work must be performed in accordance with AS 4373-2007 Pruning of amenity trees.
3. The Respondent must ensure that the initial work associated with Order 1 is undertaken in August 2025, and by no later than 24 August 2025, and that the ongoing annual work associated with Order 1 is undertaken in August of each year, and by no later than the end of the third week of August of each year.
4. The Applicant must allow the Respondent’s chosen arborist with appropriate insurances, and where necessary, the Respondent, access to the Applicant’s land to undertake the work associated with Order 1 subject to the Respondent giving at least 3 days’ prior written notice to the Applicant.
5. The Respondent will be responsible for all costs of complying with Order 1.
6. If the Respondent fails to undertake any of the work associated with Order 1 (‘Incomplete Work’), the Applicant will be entitled to undertake any of the Incomplete Work in accordance with these orders. Where necessary to comply with these orders, the Applicant’s chosen arborist with appropriate insurances will be entitled to enter the Respondent’s land and undertake any of the Incomplete Work subject to the Applicant giving 14 days’ prior written notice to the Respondent.
7. If the Respondent undertakes all of the outstanding Incomplete Work before the expiration of the 14 days’ prior written notice, the Applicant’s entitlement to enter the Respondent’s land, with or without their chosen arborist, is extinguished.
8. The costs incurred by the Applicant to undertake any of the Incomplete Work in accordance with these orders in default of the Respondent will be recoverable from the Respondent as a debt without further notice being required to be given.
9. The Applicant’s Application for miscellaneous matters filed 5 March 2025 is dismissed.
10. The Respondent’s Application for miscellaneous matters filed 31 March 2025 is dismissed.
11. Each party must bear their own costs of and incidental to the Application and the subsequent dismissed applications.
CATCHWORDS:
TREE DISPUTE – where substantial ongoing and unreasonable interference with neighbour’s use and enjoyment of land
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41(1), Chapter 3, s 78, s 79
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102
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- AGLC
- O'Kane v Caughley [2025] QCAT 213
- Case
- [2025] QCAT 213
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal were primarily centred on whether the respondent's trees constituted a substantial and unreasonable interference with the applicant's use and enjoyment of their land. Furthermore, the tribunal had to determine whether the applicant could be granted relief, including the potential removal of the trees or an order for their pruning. The tribunal also had to consider the evidence of the expert witness, Mr Richards, whose tree assessment report was crucial in the tribunal's decision-making process.
The tribunal found that the trees in question were of the Xanthostemon chrysanthus species, were in good health, and posed a low risk of damage to the applicant's property. The tribunal considered the report's recommendation for annual pruning to the fence line to formalise a hedge façade, performed late winter to minimise shoot elongation. The tribunal noted that the mature dimensions of the trees were 8 to 10 metres in height with a 6 to 8 metre crown spread, and that containing the trees to smaller dimensions was antagonistic to their genetic potential. Therefore, the tribunal concluded that the trees constituted a substantial and unreasonable interference with the applicant's use and enjoyment of their property. The tribunal ordered the respondent to undertake annual pruning of the trees to the fence line, to be performed by a qualified arborist, and to bear the costs associated with this work.
In summary, the tribunal found in favour of the applicant, ordering the respondent to prune the trees annually to the fence line to mitigate the interference with the applicant's use and enjoyment of their property. The tribunal also dismissed the applicant's and respondent's subsequent applications for miscellaneous matters and ordered each party to bear their own costs of and incidental to the application and the subsequent dismissed applications.
Orders
Orders of the court
1. The Respondent must undertake, on an annual basis, pruning of the three Golden Penda trees to the fence line of the Applicant’s property to formalise a hedge façade.
2. The Respondent must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the work associated with Order 1; and the work must be performed in accordance with AS 4373-2007 Pruning of amenity trees.
3. The Respondent must ensure that the initial work associated with Order 1 is undertaken in August 2025, and by no later than 24 August 2025, and that the ongoing annual work associated with Order 1 is undertaken in August of each year, and by no later than the end of the third week of August of each year.
4. The Applicant must allow the Respondent’s chosen arborist with appropriate insurances, and where necessary, the Respondent, access to the Applicant’s land to undertake the work associated with Order 1 subject to the Respondent giving at least 3 days’ prior written notice to the Applicant.
5. The Respondent will be responsible for all costs of complying with Order 1.
6. If the Respondent fails to undertake any of the work associated with Order 1 (‘Incomplete Work’), the Applicant will be entitled to undertake any of the Incomplete Work in accordance with these orders. Where necessary to comply with these orders, the Applicant’s chosen arborist with appropriate insurances will be entitled to enter the Respondent’s land and undertake any of the Incomplete Work subject to the Applicant giving 14 days’ prior written notice to the Respondent.
7. If the Respondent undertakes all of the outstanding Incomplete Work before the expiration of the 14 days’ prior written notice, the Applicant’s entitlement to enter the Respondent’s land, with or without their chosen arborist, is extinguished.
8. The costs incurred by the Applicant to undertake any of the Incomplete Work in accordance with these orders in default of the Respondent will be recoverable from the Respondent as a debt without further notice being required to be given.
9. The Applicant’s Application for miscellaneous matters filed 5 March 2025 is dismissed.
10. The Respondent’s Application for miscellaneous matters filed 31 March 2025 is dismissed.
11. Each party must bear their own costs of and incidental to the Application and the subsequent dismissed applications.
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
I summarise the relevant aspects of the Tree Assessment Report as follows:(a)The trees are of the Xanthostemon chrysanthus species (Golden Penda) between 6 to 9 metres in height, 3 to 5 metres in canopy spread, and in good health. They are located on the Respondent’s property, at an average of 200mm from the fence line between the parties’ properties and, at the time of inspection, branches extend approximately 2 metres from the height of the crown across the fence line into the Applicant’s property.(b)The trees were planted as a screening hedge approximately 20 years ago. There is evidence of historical pruning to minimise encroachment.(c)The trees do not display any obvious arboricultural defects and damage to people or property is rated as low risk. (d)The height of the trees has minimal impact on pool shading; the trees only affect morning sunshine in summer months. The Applicant’s dwelling causes shading over the pool for the majority of the year.(e)The mature dimensions of the trees are 8 to 10 metres in height with a 6 to 8 metre crown spread. Containing trees to smaller dimensions that is antagonistic to their genetic potential is ongoing and costly. (f)The trees are a poor selection for the environment. If the tree-keeper decides to keep the trees, recommend yearly pruning to the fence line to formalise a hedge façade, performed late winter to minimise shoot elongation. Maintenance will require professional practitioners (minimum AQF level 3 arborist) to reach the heights necessary in a safe and effective manner. Alternatively, removal of the trees and replacement with a more conducive species requiring minimal or no maintenance (Eumundi Quandong or Magnolia ‘Teddy Bear’) would be the most cost-effective strategy in the long term. Consideration There is insufficient evidence to establish whether the Applicant served the Application on the Gold Coast City Council in accordance with the Tribunal’s directions. I am satisfied however on the evidence before the Tribunal that the Gold Coast City Council advised the Applicant in writing that the Council cannot intervene in a private tree dispute and referred the Applicant to the Council’s dispute resolution centre. The orders the Tribunal is permitted to make are circumscribed by the section 66(2) and (3) of the Act. I note the Tribunal directed that Mr Richards’ evidence will be the only expert evidence allowed in the proceeding. I give considerable weight to Mr Richards’ Tree Assessment Report. I note Mr Richards states that damage to people or property from the trees is rated at low risk. I am satisfied there is no credible evidence before the Tribunal to find that the leaves, pollen, and debris from the trees have caused, are causing, or may cause serious damage to the Applicant’s land or property, including the landscaping, pool, and pool filtration system. I do not consider an order to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the Applicant’s land or property is appropriate. Accordingly, I decline to make such an order.