XKM v NBX - [2025] QCAT 186

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

XKM & Anor v NBX & Anor [2025] QCAT 186

PARTIES:

XKM

(applicant)

XIB

(applicant)

v

NBX

(first respondent)

BRISBANE CITY COUNCIL

(second respondent)

APPLICATION NO:

NDR054-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

15 April 2025

HEARING DATES:

19 March 2025

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

1.   The first respondent shall cause there to be reduction pruning of the Lemon Scented Gum to reduce its canopy back the marked point in Image 1 to his report marked “remove limb to junction point” and that such reduction pruning be carried out within 40 days of the date of the making of this order.

2.   In the course of having the reduction pruning carried out as referred to in order 1 that the first respondent cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Lemon Scented Gum.

3.   Within 40 days of the date of the making of this order the first respondent cause an attending climbing arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/report any issues found during each climbing event.

4.   The first respondent cause there to be future maintenance of the Lemon Scented Gum at intervals of 2 years in the course of which it is to be inspected and also that there be removed deadwood and works to ensure there is maintained a spread of the canopy at the size it attains after the initial prune in order 1 to the Lemon Scented Gum.

5.   All of those works in 1 to 4 shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.

6.   The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

7.   The first respondent causes all tree debris following any such works to be removed from the applicants’ property and the first respondent’s property after the recommended pruning and maintenance is performed.

8.   All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the arborist performing the work is to be so instructed. Compliance with that order does not affect the requirement to perform the works in orders 1 and 2.

9.   Climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works.

10. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Lemon Scented Gum tree causing substantial, ongoing and unreasonable interference –

– where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has…

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 XKM v NBX

Details

AGLC: XKM v NBX [2025] QCAT 186
Case: [2025] QCAT 186
Decision Date: 15 April 2025

CaseChat Overview and Summary

The case of XKM v NBX was brought before the Queensland Civil and Administrative Tribunal (QCAT) by the applicants, XKM, who sought orders requiring the first respondent's lemon scented gum tree to be trimmed or removed and otherwise be periodically inspected and maintained. The applicants alleged that the tree, which stood on the first respondent's property, had or was likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land, as provided for in section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

The legal issues before the court were whether the tree had or was likely to cause serious injury, damage or interference as alleged, and if so, what orders should be made to address those issues. The applicants submitted that the tree posed a significant risk of damage to their property and person, while the first respondent argued that the tree was healthy and that any potential issues could be resolved through regular maintenance.

The court accepted the report of the Arborist Mr Sowden, who recommended pruning the tree to reduce the overhang of the canopy back towards the alignment of the dividing fence structure and the removal of all accessible deadwoods greater than 25mm in diameter throughout its canopy. The court rejected the first respondent's argument that the Arborist's report should be disregarded in favour of a report prepared by an arborist engaged by the first respondent. The court found that the Arborist's report provided a balanced and reasonable approach to managing the tree's potential risks, and that the first respondent's argument focused too narrowly on the risk of failure rather than considering the broader impact of the tree on the applicants' property and safety.

The court made several orders to address the issues raised by the applicants. These included requiring the first respondent to have the tree pruned within 40 days of the decision, remove all accessible deadwoods greater than 25mm in diameter throughout the canopy, and have the tree inspected and maintained every two years by a qualified arborist. The court also required the first respondent to provide proof of current Public Liability and Work Cover insurances prior to any works being carried out, and to remove all tree debris from both properties following any works. The court granted the parties liberty to apply for any other consequential or other orders which might be required to be made.

Orders

Orders of the court

1. The first respondent shall cause there to be reduction pruning of the Lemon Scented Gum to reduce its canopy back the marked point in Image 1 to his report marked “remove limb to junction point” and that such reduction pruning be carried out within 40 days of the date of the making of this order.

2. In the course of having the reduction pruning carried out as referred to in order 1 that the first respondent cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Lemon Scented Gum.

3. Within 40 days of the date of the making of this order the first respondent cause an attending climbing arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/report any issues found during each climbing event.

4. The first respondent cause there to be future maintenance of the Lemon Scented Gum at intervals of 2 years in the course of which it is to be inspected and also that there be removed deadwood and works to ensure there is maintained a spread of the canopy at the size it attains after the initial prune in order 1 to the Lemon Scented Gum.

5. All of those works in 1 to 4 shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.

6. The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

7. The first respondent causes all tree debris following any such works to be removed from the applicants’ property and the first respondent’s property after the recommended pruning and maintenance is performed.

8. All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the arborist performing the work is to be so instructed. Compliance with that order does not affect the requirement to perform the works in orders 1 and 2.

9. Climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works.

10. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Arborist Mr Sowden’s report concludes, and I accept, that this tree is a typical mature example of its species. Removal is not recommended. However, as the primary consideration is the safety of people, then pruning could satisfactorily resolve the issues raised by the applicants. He concludes that: Pruning therefore is recommended within the guidance of Australian Standard 4373-2007 “pruning of amenity trees” to reduce the overhang of the canopy back towards the alignment of the dividing fence structure and the removal of all accessible deadwoods greater than 25mm in diameter throughout its canopy. Given the location of this tree these works would likely need to be performed by a suitably qualified and experienced climbing arborist with access to both properties…. Given the normal growth response of Eucalypt trees to pruning events it would be expected that ongoing maintenance would be required every three (3) years.The first respondent’s attack on the conclusions of the Sowden report The first respondent seeks to attack the findings of Mr Sowden principally on the basis that I should prefer what he says are conflicting opinions held by the arborist he engaged and also his personal interpretation of what the Australian Standard 4373-2007 “Pruning of amenity trees” has to say about achieving balance. He argues that despite acknowledging that the likelihood of injury to person is low, that there are no structural issues or pathogen, the risk of failure is low, and the risk of failure within the next 12 months is low, the report recommended that to achieve the highest possible risk mitigation the elongated limb in the southern canopy that is directly above the applicants’ property be removed for reduction and the remaining canopy have the accessible deadwoods larger than 25mm in diameter removed. In my view, to solely focus on risk of failure, which could have serious or even catastrophic consequences if a person was beneath the tree when it failed, and to focus on what he says was that risk in the 12 months since that report was written is misconceived. Risk is not the only factor which is relevant to whether orders should be made. The first respondent denies that there is accessible deadwood greater than 25mm in diameter in the overhanging canopy, but says that if the deadwood is the concern, this should have been the extent of the suggestions rather than removing the entre limb. Self-evidently, deadwood is not the only concern. The first respondent submits that the relevant Act does not require the highest possible risk mitigation to be undertaken and that the suggestions contained in the report are inconsistent with the requirements of the Act. He says that based on these inconsistencies and contradictions, the respondent obtained a further expert report from Independent Arboricultural Services, authored by Mick Mayer, dated 24 March 2023 (‘the second Maher report’) which provided opinion on the current status of the tree, as well as the inconsistencies contained in that QCAT Tree Assessment Report. The first respondent submits that the further expert report did not agree with the contents of the report of the Arborist Mr Sowden for QCAT.

Ratio Decidendi

Legal Principle Established

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CITATION:	XKM & Anor v NBX & Anor [2025] QCAT 186
PARTIES:	XKM (applicant) XIB (applicant) v NBX (first respondent) BRISBANE CITY COUNCIL (second respondent)
APPLICATION NO:	NDR054-22
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	15 April 2025
HEARING DATES:	19 March 2025
HEARD AT:	Brisbane
DECISION OF:	Member Roney KC
ORDERS:	1. The first respondent shall cause there to be reduction pruning of the Lemon Scented Gum to reduce its canopy back the marked point in Image 1 to his report marked “remove limb to junction point” and that such reduction pruning be carried out within 40 days of the date of the making of this order. 2. In the course of having the reduction pruning carried out as referred to in order 1 that the first respondent cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Lemon Scented Gum. 3. Within 40 days of the date of the making of this order the first respondent cause an attending climbing arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/report any issues found during each climbing event. 4. The first respondent cause there to be future maintenance of the Lemon Scented Gum at intervals of 2 years in the course of which it is to be inspected and also that there be removed deadwood and works to ensure there is maintained a spread of the canopy at the size it attains after the initial prune in order 1 to the Lemon Scented Gum. 5. All of those works in 1 to 4 shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist. 6. The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite. 7. The first respondent causes all tree debris following any such works to be removed from the applicants’ property and the first respondent’s property after the recommended pruning and maintenance is performed. 8. All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the arborist performing the work is to be so instructed. Compliance with that order does not affect the requirement to perform the works in orders 1 and 2. 9. Climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works. 10. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Lemon Scented Gum tree causing substantial, ongoing and unreasonable interference – – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has…