Barrett v Hulme & Anor [2025] QCAT 382

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

• [1] The Applicants, Antony Barrett and Susan Barrett, are the registered owners of a property at 7 Howie Street, Clayfield, Queensland. They have resided at the property since 2007.
• [2] The Respondents, Stephen Hulme and Katherine Hay, are the registered owners of the adjoining property at 11 Howie Street, Clayfield and are the "tree-keeper" in this application as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
• [3] By application dated 20 October 2023, the Applicants seek the removal of a Liquid Amber tree which is located on the eastern side of the Respondents' property and is alleged to affect the Applicants' enjoyment of their property ("the subject tree").
• [4] In their application, the Applicants state that the accumulation of spikey nuts and leaves and twigs has led to the deterioration of their gutter protectors and has caused blockage of a number of drainage pipes contributing to flooding of their house in 2022.
• [5] The Applicants state that the Respondents do not object to the removal of the offending tree but refuse to pay for the removal.

• [6] 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]
• [7] 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.

• [8] 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 -

1. serious injury to a person on the land; or
2. serious damage to the land or any property on the land;
   1. 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.

• [9] 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.
• [10] 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.
• [11] 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.

• [12] 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 a particular occasion or on an ongoing basis;

• 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.

[13] 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.

[14] Matters to be considered by the Tribunal are set out in sections 71 to 75 of the Act.

• [15] Section 71 states that the primary consideration is the safety of any person.
• [16] Section 72 states that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
• [17] 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.

• [18] 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 or 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.

• [19] Evidence, by way of correspondence, has been provided by both parties indicating that attempts to resolve the issues with regards to the subject tree have been instigated by both parties.
• [20] 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 Applicants have made several offers in an attempt to resolve the discontent between the parties.

• [21] The subject tree has been in existence prior to the occupation of both parties of their properties.
• [22] Since renovations were undertaken by the Respondents in 2019, the parties have communicated about the trimming of the subject tree.
• [23] In 2023, an issue regarding the removal or cutting back of another tree in the vicinity, being a Callistemon, was raised by the Applicants in email correspondence.
• [24] The Applicants allege that the subject tree has only been sporadically, and very poorly, pruned in the past and is causing long heavy branches which cause significant damage to their house and life.
• [25] The Respondents agreed to the removal of the tree at the Applicants' cost to appease the Applicants despite preferring that the tree remain as it contributes to the appearance of the house, the local streetscape and the natural environment.
• [26] The Respondents submit that no items in s 66(2) of the Act have been satisfied and that the Tribunal is unable to make any relevant orders under the Act. The Respondents submit that the Act specifically requires that a tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
• [27] The Respondents further submit that the Liquid Amber tree was professionally trimmed in 2019 during renovations to the Respondents' house and overhanging branches were trimmed as requested by the Applicants. The Respondents submit that both trees, the subject of complaint, are mature with no dead branches. Both trees fruit and flower annually and provide habitat for birds, bees and other fauna.
• [28] The Respondents submit that:

(a) there is no suggestion that the tree is likely to cause injury to any person and no large branches have dropped from the tree during their residence at their property;

(b) the trees do not cause substantial, ongoing and unreasonable interference with the Applicants' use and enjoyment of their property as shown in photos included in the application;

(c) no serious damage has been caused to the Applicants' roof, guttering, tiled areas or driveway nor flooding caused by the subject tree;

(d) the Liquid Amber is a deciduous tree which sheds its leaves for one to two months of the year whilst the Callistemon does not drop many leaves and does not overhang the Applicants' roof line at all;

(e) any maintenance of the effects of the Respondents' tree is normal maintenance to be expected by the Applicants and to be carried as owners of the property.

• [29] On 28 September 2024, Mr Michael Sowden, in his role as a tree assessor, attended at the Respondents' property at 11 Howie Street, Clayfield to assess the Liquid Amber tree and any other trees the subject of this application and its effect on the Applicants' land, including the likely effect the trees may cause in the next 12 months.
• [30] Mr Sowden provided a report dated 29 September 2024 which addressed the Applicants' application and the Respondents' response and further addressed the ability to perform the recommended tree pruning in compliance with the Australian Standards and Local Government laws and the suitability of any recommendations and the long-term effects of the recommendation on the retained trees.
• [31] Mr Sowden observed that that the Respondents' property is not covered by any Brisbane City Council Natural Assets Local Law 2003 tree protection orders.
• [32] Mr Sowden made the following observations:

(a) the Liquid Amber tree, the subject of the application, is located along the eastern boundary of the tree-keeper's property and has a slightly asymmetrical form with 4.2m or approximately 30 percent of its canopy overhanging the Applicants' property and dwelling;

(b) the Liquid Amber has been "lopped" in 2011 at approximately 4-5m in height and as a result has a canopy comprised of epicormically attached leaders that create an asymmetrical canopy;

(c) given that approximately 30 percent of the canopy of the Liquid Amber (L.styraciflua) on the Respondents' property extends over the Applicants' property and that wind moves leaves horizontally considerable distances when shed it is apparent that annually a significant amount of the debris would accumulate within the Applicants' property;

(d) the amount of shed leaf and spikey fruit body that would accumulate within the Applicants' property within a one month period would be considered large and would require considerable amounts of property maintenance especially during the several month period when the Liquid Amber sheds and replaces it leaves;

(e) the spikey fruit bodies have the ability to accumulate in dense clumps potentially blocking drainage and guttering;

(f) pruning in compliance with Australian Standard 4373-2007 "Pruning of Amenity Trees" could be performed to satisfactorily resolve the issues raised by the Applicants to acceptable levels;

(g) pruning will not fully prevent debris accumulating within the Applicants' property but it could be performed to the extent that it would significantly reduce the amount of debris and minimise the risks associated with falling deadwoods impacting the Applicants' property;

(h) the pruning should include the removal of overhanging canopy back to the alignment of the dividing boundary fence and the removal of all accessible deadwoods greater than 25mm in diameter;

(i) maintenance pruning is required to the tree on the Respondents' property

(j) given the potential arboricultural safety issues related to the suspected decay within attachment points of the previous "lopping" wounds the attending arborist should closely inspect the junctions of the epicormically attached leader to determine if the inherent structural strength of the junctions has been compromised to the extent that removal of the leader is required after consultation with the tree-keeper.

• [33] At Part 4.12 of his report, Mr Sowden set out the specifications of recommended arboricultural works including the following:

(a) the reduction of the canopy of the Liquid Amber, the subject of this application, located along the eastern boundary of the tree-keeper's property back to approximate alignment of the dividing boundary;

(b) the removal of all accessible deadwoods greater than 25mm in diameter;

(c) the inspection of the junction areas of the epicormically attached leaders with any suspected reduction in structural strength to be reported to the tree-keeper for consideration of remediation options;

(d) ongoing maintenance pruning at intervals not exceeding 18 months to maintain the canopy at the alignment of the boundary fence, to remove developed deadwoods and to reinspect the junctions of the epicormically attached leaders;

(e) all tree debris to be removed from the Applicants' and tree-keeper's properties after recommended pruning is performed;

(f) all pruning to be performed in compliance with the requirements of the Australian Standard 4373-2007 "Pruning of Amenity Trees";

(g) climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works;

(h) all works shall be performed by a minimum Australian Qualifications Framework (AQF) Level three (3) qualified arborist;

(i) the attending arborist shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

• [34] The report prepared by Mr Sowden identifies in detail the issues to be resolved between the parties.
• [35] I am satisfied from the evidence from Mr Sowden's inspection that the subject tree is one which requires proper maintenance to ensure it does not impact, unnecessarily, the Applicants' enjoyment of their property.
• [36] There does not seem to be sufficient evidence to support the notion that an order is required to prevent serious injury to a person or serious damage to the Applicants' land or property.
• [37] The main complaint is that the tree is potentially causing substantial, ongoing and unreasonable interference with the Applicants' use and enjoyment of their land resulting from the debris emanating from the subject tree.
• [38] I have taken into account the general matters identified in s 73 of the Act and have taken into account that normal tree litter is a fact of suburban life within urban environments. The level of interference varies from case to case.
• [39] The Respondents refer to the decision of Graham & Ors v Welch [2012] QCA 282 at [24] in support of the principle that it is not reasonable for a court decision to require the removal of trees which cause normal tree litter if an entrant to residential premises slips on a natural hazard which is readily apparent.
• [40] This case is relevant primarily for the purpose of identifying the principle accepted by the Court that trees and bushes are common and desirable attributes of homes in residential areas and that in the case of claims for negligence it is foreseeable that there is a possibility that seeds and nuts and other parts of trees will fall onto properties and that there is no obligation on a tree owner to trim or remove a tree to avoid the possibility of debris falling on steps or similar pathways.
• [41] More relevant is the "tree dispute principle" identified in Barker v Kyriakides [2007] NSWLEC 292 at [20] which confirms that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for removal of or intervention with an urban tree.
• [42] That is not to say that orders cannot be made pursuant to the Act when relationships between neighbours break down and it is determined that maintenance of a tree will resolve the issues in dispute between the parties
• [43] I am satisfied that the subject tree has not been properly maintained in that, even on the Respondents' evidence, a proper pruning of the tree has not been undertaken since 2019 when substantial renovations were undertaken. It would seem that the pruning has not been carried out by a qualified arborist with knowledge of proper pruning methods to ensure the canopy of the tree is maintained at proper levels.
• [44] The obligation for proper maintenance rests with the Respondents.
• [45] I accept the evidence of Mr Sowden that the subject tree has caused damage to the guttering of the Applicants' property including blocking of the drainage but I am unable to ascertain the extent of any damage and the extent to which it is ongoing.
• [46] I accept that the photographic evidence attached to the roof inspection report dated 12 June 2025, provided by the Applicants, confirms that a large amount of tree leaf debris blocks the gutters of the Applicants' roof and that the cause of the tree debris is the Liquid Amber tree, the subject of the application.
• [47] Proper maintenance will reduce the impact of the tree debris but the "tree dispute principle" dictates that a reasonable level of outdoor maintenance is to be expected by the Applicants including cleaning of gutters and surrounds of houses on a regular basis.
• [48] There is nothing unusual regarding the size of the tree, the type of tree, its location or any deteriorated state which would warrant an order for its removal. There are no valid reasons to "stray from the principle" set out in Barker v Kyriakides.
• [49] It would seem that there have been attempts to resolve the issue amicably by both parties but that the cost of the work to be undertaken has been the obstacle or impasse.
• [50] I accept the recommendation of Mr Sowden that, at this stage, removal of the tree is not warranted. There is no indication that the tree, if properly maintained, will be of danger to person or property.
• [51] I do not propose to order the removal of the tree, given that the report of Mr Sowden does not confirm that removal is necessary at this stage.
• [52] The Applicants, in their submission dated 25 June 2025, have offered to contribute fifty percent to the cost of removal of the tree on the following bases:

(a) the tree is to be completely removed;

(b) three professional quotations are to be obtained;

(c) the chosen contractor is to provide professional liability insurance and a certificate of currency.

• [53] The Applicants propose this solution in an attempt to remove the source of ongoing conflict between the parties and to eliminate the need for future maintenance costs for both parties.
• [54] Given the order which I propose, it would be wise of the Respondents to seriously consider the Applicants' offer if the burden of properly maintaining the subject tree becomes too arduous.
• [55] At this stage, there is no necessity for the Tribunal to consider further the Applicants' offer given it is not proposed that an order for removal of the tree is warranted and thus no consideration of the cost of such exercise is relevant.

• [56] Based on the evidence from the tree-assessor and the statements provided by both parties, the Tribunal concludes that the subject tree should not be removed but rather it be pruned and maintained to ensure that the subject tree does not cause unreasonable interference with the Applicants' enjoyment of their property.

• [57] Based on the reasons provided above, the Tribunal determines that the following orders should be made:

(a) strict maintenance of the subject tree is to be carried out by the Respondents on a regular basis;

(b) maintenance works are to be carried out by a qualified AQF Level 3 arborist every 18 months to ensure that the subject trees are properly maintained;

(c) the cost of all maintenance works is to be borne by the Respondents;

(d) the Respondents are to carry out the initial maintenance works on or 30 March 2026.

[1] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 61.