Sager v Blyth
[2025] QCAT 467
•13 November 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Sager v Blyth [2025] QCAT 467
PARTIES:
TONI SAGER (applicant)
v
GLENICE BLYTH (respondent)
WARREN GEORGE BLYTH
(respondent)
APPLICATION NO/S:
NDR166-23
MATTER TYPE:
Neighbourhood Dispute
DELIVERED ON:
13 November 2025
HEARING DATE:
4 September 2025
HEARD AT:
Brisbane
DECISION OF:
Member S M Burke
ORDERS:
The Respondents are to make payment the sum of $974.24 to the Applicant by way of damages and costs of the application on or before 12 December 2025.
CATCHWORDS: NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees cause a safety issue including injury to person or property – whether trees were causing substantial, ongoing and unreasonable interference – compensation for damage to property
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 73, s 75
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
The Applicant, Toni Sager, is the registered owner of a property being Lot 1 on SP169221 known as Unit 1/ 21 Poinciana Boulevard, Cardwell, Queensland.
The Respondents are the registered owners of the adjoining property situated at 2/23 Poinciana Boulevard, Cardwell which is Lot 2 on SP08890.
By application dated 30 August 2023, the Applicant seeks the removal of a clump of four coconut trees (“the subject trees”) which are located on the dividing fence line opposite the pool shed on the Applicant’s property.
The subject trees are located on the Body Corporate’s common property, known as Lot 0 on SP208890, which has been allocated to the exclusive use of the Respondents.
This Tribunal determined on 11 February 2025 that the Respondents were the proper party to the dispute and refused the Respondents’ application to be removed from the application and replaced by the Body Corporate.
It is alleged that the trees are approximately 8 metres in height and continually shed coconuts as they are not properly maintained. The Applicant further alleges that damage has been caused to the Applicant’s pool shed as a result of falling coconuts.
The Applicant requests removal of one of the trees and replacement of the pool shed.
The Relevant Legislation
This Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.[1]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 61.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Act”) provides, pursuant to s 52, that an owner of land on which a tree is situated (“the tree-keeper”) is responsible for:
(a)cutting and removing any branches of the tree that overhang a neighbour’s land;
(b)ensuring that the tree does not cause:
(i) serious injury to a person; or
(ii) serious damage to a person’s land or any property on a person’s land;
(iii) substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.
Section 46 of the Act provides that land is affected by a tree at a particular time if:
(a)any of the following applies—
(i) branches from the tree overhang the land;
(ii) the tree has caused, is causing, or is likely within the next 12 months to cause—
(A)serious injury to a person on the land; or
(B)serious damage to the land or any property on the land;
(C)substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(b)the land—
(i) adjoins the land on which the tree is situated; or
(ii) would adjoin the land on which the tree is situated if it were not separated by a road.
The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land.
Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act.
Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a)to prevent serious injury to a 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.
Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, an order may do any of the following—
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on the tree on a particular occasion or on an ongoing basis;
Examples—
·an order that requires the removal of the tree within 28 days
·an order that requires particular maintenance work on the tree during a particular season every year
·an order that requires particular work to maintain the tree at a particular height, width or shape
(b)require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
(c)require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
(d)authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
(e)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
(f)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
(g)require a report by an appropriately qualified arborist.
Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters:
(a)the neighbour has made reasonable effort to reach agreement with the tree-keeper;
(b)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(c)to the extent the issue relates to land being affected because branches from the tree overhang the land—
(i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(ii) the neighbour cannot properly resolve the issue using the process under Part 4;
(d)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
Matters to be considered by the Tribunal are set out in sections 71 to 75 of the Act.
Section 71 states that the primary consideration is the safety of any person.
Section 72 states that a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.
Section 73 identified the general matters which the Tribunal must consider:
(a)the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
(b)whether carrying out work on the tree would require any consent or other authorisation under another act and, if so, whether the consent or authorisation has been obtained;
(c)whether the tree has any historical, cultural, social or scientific value;
(d)any contribution the tree makes to the local ecosystem and to biodiversity;
(e)any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
(f)any contribution the tree makes to public amenity;
(g)any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h)any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i)any risks associated with the tree in the event of a cyclone or other extreme weather event;
(j)the likely impact on the tree of pruning it, including the impact on the tree of maintaining it as a particular height, width or shape;
(k)the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
For present purposes, other matters which the Tribunal is to consider in the event that unreasonable interference is alleged includes the following:
(a)anything other than the tree has contributed, or is contributing, to the interference; and
(b)any steps taken by the tree-keeper or the neighbour to prevent of minimise the interference; and
(c)the size of the neighbour’s land; and
(d)whether the tree existed before the neighbour acquired the land; and
(e)for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.
Compliance with section 65 of the Act
Evidence, by way of correspondence, has been provided by both parties indicating that attempts to resolve the issues with the Applicant have been instigated by the Respondents.
Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper, I am satisfied that the requirements of s 65 of the Act have been fulfilled.
The Dispute
The Applicant claims the sum of $4,594.17 which comprises the following:
(a)Cost to replace the pool shed - $4,095.00
(b)QCAT application fee - $379.50;
(c)Plan image fee - $24.93;
(d)Title search fees - $94.74.
The Applicant contends that the coconut tree is the sole cause of the damage to the pool shed on the Applicant’s property and that replacement of the shed is the only course to repair the damage.
In its original response dated 29 April 2025, the Respondents sought reimbursement from the Applicant of the sum of $1,017.50, being half the cost of removal of the subject coconut tree. The removal of the subject tree has been undertaken by the Respondents.
The Respondents also claimed that, in the event that the trees were determined to have caused damage to the Applicant’s pool shed, the cost of repairing the pool shed would be the sum of $500.00.
On or about 6 June 2025, the solicitors for the Respondents advised the Tribunal that the subject tree(s) appear to have been poisoned. It would seem that this allegation must relate to those trees which have not already been removed by the Respondents since the filing of the application and the Respondents’ response.
Discussion
The Respondents dispute that the subject coconut tree or trees have caused or are likely to cause injury to any person or persons within the next 12 months. This is more so the case now that it is considered that the trees have died from a cause unknown but presumed to be poisoning.
It is the Respondents’ primary submission that the subject tree has not caused serious injury to the Applicant’s land or property within the meaning of that term under s 66 of the Act.
The Tribunal has had the benefit of photographic evidence of the damage to the Applicant’s pool shed. The photographs support the contention proposed by the Respondents that the damage compromises a large dint only to a small section of the roof of the shed. The Respondents concede that the dint is not insignificant but do not concede that the damage is of a serious nature.
Further, the Respondents do not concede that the subject tree causes an ongoing and unreasonable interference with the Applicant’s enjoyment of her land or property.
The Tribunal is satisfied that the coconut trees have not caused serious injury to the Applicant’s property nor is there a likelihood that there is any concern about injury to persons on the Applicant’s property. Further, there is no evidence that the trees have caused ongoing and unreasonable interference with the Applicant’s enjoyment of her land.
The only issue to be determined is the Applicant’s entitlement, if any, to compensation for damage to the pool shed as a result of the falling coconuts.
Whilst there is no definitive evidence that a falling coconut caused the damage, it is accepted that the likely cause of the dint in the Applicant’s pool shed roof was as a result of a falling coconut.
The Respondents also submit that the Applicant’s behaviour has contributed to any damage caused by the falling coconuts. This submission arises from the observation that the Applicant, at one stage, relocated the pool shed to a location immediately below the coconut trees as opposed to its original position which was further away from the subject trees. As a result, the Respondents contend that it was foreseeable that a change in location of the pool shed contributed to the potential for falling coconuts to damage the pool shed.
I accept the Respondents’ evidence that they have, during the course of their occupancy of their property, attended to the maintenance and de-nutting of the subject trees to prevent injury and damage from falling coconuts. I further accept that the coconut trees form part of the common place and desirable attributes of the Cassowary Coastal Regional Council locality and that the expectation of all residents in the region is that produce from the trees are to be maintained by all residents.
I have taken into account that the Respondents have removed the largest of the coconut trees in an effort to ensure that there is not an unacceptable risk of injury to any person on the Applicant’s property and to minimise any ongoing and unreasonable interference with the Applicant’s use of her property.
The Applicant’s claim is for an amount to completely replace the pool shed. The Respondents dispute that the pool shed needs to be replaced and submit that the Applicant is only entitled to the reasonable cost of repair of the damage.
I accept the Respondents’ submission in relation to the Applicant’s entitlement to compensation. I have formed the view that the damage to the Applicant’s pool shed is not “serious damage” taking into account the criteria set out in the Respondents’ submissions including:
(a)the size of the pool shed;
(b)the damage is contained in one panel of the roof of the pool shed;
(c)the damage has not rendered the pool shed unusable or unsafe.
The quotation provided by the Applicant from ShedBoss Cairns dated 22 June 2023 relates to a complete rebuilding of the pool shed including demolition and removal of the existing pool shed.
I do not accept that the Applicant is entitled to a completely new shed as compensation for the damage to the pool shed roof only.
The Respondent has provided evidence of comparable garden sheds from the Bunnings website and have estimated that, based on the quotation provided by ShedBoss Cairns, the repair to the roof panels only would be in the vicinity of $500.00.
In the absence of a proper quotation for the repair of the roof panels only, I accept that the Respondents’ guesstimate is a reasonable amount for compensation for the damage incurred by the Applicant.
I make the order for compensation pursuant to s 66(5)(f) of the Act.
In addition, I propose to allow the Applicant her filing costs of the application and search fees incurred.
Conclusions
Based on the evidence before the Tribunal provided by both parties, the Tribunal concludes that the Applicant is entitled to compensation for the damage to the pool shed located on her property and is entitled to the reasonable cost of repair of the pool shed.
Orders
The Tribunal determines that the following orders should be made:
(a)The Respondents make payment to the Applicant the sum of $500.00 as compensation for the repair works required to the Applicant’s pool shed;
(b)The Respondents reimburse the Applicant the amount of $379.50 for the filing fees for the application to the Tribunal and $94.74 incurred by the Applicant for search fees.
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