Critchley v Mitchell [2025] QCAT 346

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Brown & Anor v Wallace [2014] QCAT 461

Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2

Dunstan & Anor v Hope Island Resort Principal Body Corporate (PBC) [2024] QCATA 20

Lowe v BGC Technical [2016] QCATA 124

• [1] In these proceedings Louise Mary Critchley ('the Applicant') makes application to the Tribunal for Orders that a tree on the property of Craig Mitchell ('the Respondent') be removed or branches of the tree be pruned and the Respondent pay the cost to carry out those orders and pay compensation for damage to the Applicant's land and other ancillary orders.

• [2] The Respondent is the registered proprietor of a suburban allotment since 11 December 2017 but had been residing in that property prior to that date.[1]
• [3] The Respondent's property has the land area of 708 m2 and within its boundaries has a single Gum Tree (Eucalyptus sp.) as well as other vegetation and flora. The Gum Tree is situated in the south-western corner of the property and is in some proximity to a boundary fence at the rear of the property.
• [4] Located on the adjoining property and separated from the Respondent's property by the boundary fence is a Body Corporate complex of 16 residential units. The Body Corporate has Community Management Statement 31869 (CMS).
• [5] In 2021, in response to claims about the Gum Tree from one of the Owners of a unit in the Body Corporate complex (the then Owner of Lot 5), the Respondent engaged the services of an Arborist to trim branches of the Gum Tree which had grown towards or over the boundary fence towards the Body Corporate complex. The Arborist proposed to prune the Gum Tree as follows:[2]

Selective removal of low lateral branches growing over the neighbours roof to correct branch collars;

Minor selective and targeted reduction of remaining overhead branches to clear property and balance tree;

Remove dead wood and torn branch stubs to correct collars as required.

The Respondent completed works to trim the Gum Tree.

• [6] On 21 January 2022, the Applicant became the registered proprietor of Lot 5 in the Body Corporate complex.[3] There was oral evidence given to the Tribunal in the hearing that the Applicant also has exclusive use of a parcel of land which is Body Corporate common property, which is located between her Lot and the boundary fence.
• [7] On 14 February 2023, the Applicant says that after a windy day a branch from the Gum Tree fell onto the roof of Lot 5 damaging the boundary fence, the gutter and gutter guard on the roof of the Applicant's Lot. She says that the tree was left with a crack in its branch/trunk. The Applicant says:

The larger of the 2 boughs has a significant looking crack in it.

• [8] On 11 March 2023, the Applicant says that during windy weather an overhanging branch/branches from the Gum Tree fell and impacted the roof above her bedroom. The Applicant says:

If this fails while I am in bed it would possibly impact while I am underneath.

The tree has within the past three months drop (sic) multiple branches.

• [10] The Applicant says that she has made attempts to resolve the tree issues with the Respondent and says:

I have discussed this issue with the respondent on multiple occasions regarding managing his tree responsibility (sic) but he does not act on his word.

fearful of the largest bough breaking while I am in bed - fearing injury. Plus I have not been able to enjoy my yard as I am consistently picking up branches that fall regularly. I would like to buy a new air-conditioner but won't as the unit could be impacted.

• [12] The Applicant also says in response to whether the Respondent has taken any steps to stop or reduce the interference, the following:

He is now watering and fertilising the tree as he believes it will make the trees stronger and stop branches falling.

• [13] On 19 April 2023, the Applicant filed in the Tribunal an Application for a tree dispute in reliance upon the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('NDA'). The Orders sought by the Applicant from the Tribunal are the removal or pruning of branches of the Gum Tree, an Order that the Respondent pay the cost of carrying out the Orders, pay compensation and ancillary Orders.
• [14] On 1 June 2023, the Respondent filed in the Tribunal a Response to the Application for a tree dispute in which he agreed with a number of matters in the application but also disagreed with the following allegations:

(a) that further branch/bough failures are imminent, and will escalade in probability;

(b) that the last bough fell directly on the roof above the Applicant's bedroom;

(c) what appears to be cracking of the trunk of the tree;

(d) that on 11 March 2023 a branch from the tree impacted the roof above the Applicant's bedroom and damaged the gutter and the gutter guard;

(e) that the Applicant is fearful of the largest bough breaking and not able to enjoy her yard.

The Respondent contends that no Orders should be made particularly as the Applicant knew the tree was there before she purchased as her residence in the Body Corporate complex.

• [15] The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') or an enabling Act.[4]
• [16] The Tribunal is given 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 QCAT, land is affected by a tree.[5] A neighbour is entitled to apply, as provided under the QCAT Act, to the Tribunal for an Order.[6] In these proceedings the Applicant alleges that the land on which Lot 5 is situated is affected by the Respondent's Gum Tree. In these circumstances, the NDA is the "enabling Act" and the Tribunal has jurisdiction to hear and determine these proceedings.

• [17] The Tribunal may make an order under the NDA if it is satisfied about a number of matters which include:[7]

(a) the neighbour has made reasonable efforts to reach agreement with the tree keeper;

(b) the neighbour has taken all reasonable steps to resolve the issue under any relevant local law etc;

(c) to the extent the issue relates to land being affected because branches overhang a boundary fence;

(i) the branches extend over the neighbour's land that is at least 50 cm from the common boundaries; and

(ii) the neighbour cannot properly resolve the issue using the process under part 4.

• [18] In the material before the Tribunal, it establishes that the matters in (a), (b) and (c) above have been complied with according to witness statements or documents filed in the Tribunal.
• [19] The Tribunal has broad powers to make Orders in relation to a tree dispute. This includes orders the Tribunal considers appropriate in certain circumstances and includes orders requiring the tree keeper or allowing the neighbour to carry out work on a tree on a particular occasion or on an ongoing basis.[8]
• [20] Where there is a "living tree", such as the Gum Tree in these proceedings, the NDA provides:[9]

A living tree should not be removed or destroyed unless the issue relating to the Tree cannot otherwise be satisfactorily resolved.

• [21] In making an Order under the NDA, the Tribunal must take into account a number of matters which include 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 as well as a number of other considerations.[10]

Is the Applicant a Neighbour of the Respondent?

• [22] The Applicant resides in a Body Corporate complex and is the owner of Lot 5. The structural boundaries of that Lot do not extend to the boundary fence with the Respondent's property.
• [23] Between Lot 5 and the boundary fence is Body Corporate common area over which the Applicant has been given exclusive possession. All Lot Owners in the complex are jointly the owners of the common area.
• [24] In earlier decisions of the Tribunal a Lot Owner was not regarded as being a "neighbour" to the tree-keepers land (Brown & Anor v Wallace;[11] Donaldson v The Body Corporate for Maple Court CTS 19593[12]). In Dunstan & Anor v Hope Island Resort Principal Body Corporate (PBC),[13] the Appeal Tribunal held that the registered owners of Lot 37 in the Body Corporate complex which was approximately 2 m from the southern boundary of the land belonging to the Body Corporate was a "neighbour" and had standing to bring the application in connection with the tree dispute before the Tribunal. That later decision adopted the approach taken in Lowe v BGC Technical[14] to s 49 of the NDA where Justice Thomas, President and Member Browne stated:

The aim of s 49 is clearly to ensure that any person affected by a tree has the right to apply.

• [25] The Tribunal in these proceedings adopts and follows the reasoning and approach that has been set up by the Appeal Tribunal in both of these later decisions. The Applicant in these proceedings is a person affected by the Gum Tree in the Respondent's property. For those reasons, the Tribunal finds that the Applicant is a "neighbour" of the Respondent in terms of s 49 of the NDA.

• [26] On 13 June 2023, the Tribunal directed an appropriately qualified Arborist be appointed as an assessor to carry out an inspection of the Gum Tree and provide a report to the Tribunal on the issues raised in the Application.
• [27] On 23 September 2023, an Arborist, Mr Michael Sowden, attended the Respondent's property as the Tree Assessor to make observations of the Gum Tree and perform other tests in preparation for the report to be provided to the Tribunal.
• [28] On 21 October 2023, Mr Sowden provided the report to the Tribunal and to the parties. The report canvassed many issues including provisions of the NDA affecting the Gum Tree, details of the site visit and observations, a check to whether the Applicant's land is affected by the tree and also checks against matters relevant for consideration in ss 70 to 76 of the NDA. It is not necessary to set out here the various matters referred to by Mr Sowden, particularly his discussion of the issues, however, his recommendations and conclusions are as follows:

(a) the branches of the Gum Tree extend over the Applicant's property and meet the relevant criteria in s 46(a)(i) of the NDA;

(b) the canopy that overhangs the Applicant's property by 2.4 m has been previously pruned and at the time of assessment did not contact any structure on the Applicant's property;

(c) in his opinion that whilst it is not arboriculturally likely that this tree will within the next 12 months cause serious damage, serious injury or substantial interference to the Applicant's property, it meets the provisions of s 46(a)(ii) of the NDA;

(d) in his opinion, as safety is the primary consideration, pruning could be performed to reduce the canopy of this Gum Tree and satisfactory resolve the issues raised by the Applicant;

(e) as there is suspected decay within the canopy junctions an aerial inspection should be conducted annually by a suitably qualified climbing Arborist to determine the visible strength of the junctions and to perform remediation works as required.

Mr Sowden in his report then set out specific details and recommendations for the pruning and ongoing care of the Gum Tree into the future.

• [29] While it is noted that in the report that:

The Tree-keeper agreed in principle to my proposed recommendations

the Respondent nevertheless cross-examined Mr Sowden during the Tribunal hearing about the contents of the report. The Tribunal concludes that the cross-examination of Mr Sowden did not change or in any way materially alter any of the factual content or opinions set out in that report. In other words, the report of Mr Sowden remained intact following the cross-examination.

• [30] The Tribunal accepts the evidence of Mr Sowden in his report and his answers in cross-examination during the Tribunal hearing. The Tribunal considers that it is appropriate to make findings of fact in accordance with the contents of Mr Sowden's report. The Tribunal also accepts the conclusions and recommendations, including the specifications of recommended arboricultural works as set out in that report.

Removal/Destruction of the Gum Tree or Other Satisfactory Remedy

• [31] As has already been pointed out, the NDA provisions prevent a living tree being removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
• [32] The issue then is whether, rather than the removal or destruction of the Gum Tree, can this dispute be otherwise resolved in a satisfactory way.
• [33] The answer to that issue is contained in the report from Mr Sowden. His report, which the Tribunal accepts, demonstrates that adopting safety as a primary consideration, pruning could be performed to the Gum Tree to reduce the canopy and satisfactorily resolve the issues raised by the Applicant. This will give effect to the intention of the NDA to preserve a living tree where there is an otherwise satisfactory outcome and that the Tribunal dismiss that part of the Application for a tree dispute which seeks orders for the removal of the Gum Tree.

Should the Tribunal Make Any Order to Resolve the Dispute Between the Parties?

• [34] The alternative remedies sought by the Applicant is for the pruning of the Gum Tree so as to remove the threat of its branches falling onto the roof of Lot 5. The Applicant's case is that pruning is necessary because:

(a) Impending danger to human life and Unit 5 residence from further tree fall/failure of the tree;

(b) Nuisance of having to remove debris now is a constant and I have no means for removal myself;

(c) Respondent is unaware of correct tree management or unwilling to co-operate until legal action pursued.

• [35] The Applicant supports her Application with numerous photographs and text messages between herself and the Respondent.
• [36] The Respondent opposes the pruning of the trees and considers the best approach is to maintain the status quo. The Respondent disputes a number of the factual matters asserted by the Applicant and reference has already been made to those matters in dispute. He challenges the photographs and whether they show the features, or have the lack of features, for which the Applicant contends. He also refers to the weather events and the circumstances of tree breakages in February 2023 and in March 2023.
• [37] The parties' evidence before the Tribunal provided a significant dispute between the Applicant and the Respondent as to the past, and including ongoing, events and issues with the Gum Tree. There was some limited common ground between the parties relating to attempts to resolve the dispute and that branches are more than 2.5 m above ground level.
• [38] Both parties attended the Tribunal hearing and gave oral evidence and were cross-examined. In determining these proceedings, the Tribunal has a preference for the evidence given by the Applicant over that provided by the Respondent. This is because the Applicant's case was supported by number of photographs (about which the Respondent disputed their contents) and with text messages. The Respondent's evidence was largely an attempted analytical approach to demonstrate the incorrectness of the Applicant's contentions and also contained an element of "reconstruction" of how events occurred or how the breakages of limbs from the Gum Tree had eventuated.
• [39] Apart from the parties, the significant evidence before the Tribunal came from Mr Sowden. This has already been explained and the Tribunal accepts his expert evidence as the Tree Assessor, notwithstanding criticism of his qualifications and other matters as contended by the Respondent. At the end of cross-examination, the Respondent's contentions about qualifications and other matters were not established to the satisfaction of the Tribunal. The Tribunal is satisfied and finds that for safety reasons there should be pruning to reduce the canopy of that tree and satisfactory resolve the issues in these proceedings in accordance with the "Specification of Recommended Arboricultural Works" as set out in that report. The Tribunal will make orders for the pruning as recommended, including orders as set out in the "Specifications" of the report.

• [40] The Applicant seeks orders for costs or compensation for damage to the land or property in an amount "to be defined".
• [41] The Applicant has obtained several quotes from Bacal & Co Plumbing relating to the damaged gutter guard and to replace 10 m of gutter and downpipe brackets. The Applicant has also provided evidence of a receipt for payment, by her, of repairs to the gutter guard.
• [42] The damage to the gutter guard and to the gutter and downpipe brackets relates to the roof structure of Lot 5. However, because the building is a Body Corporate complex, it is necessary to make a distinction between the property contained within the title to Lot 5 and the common property. The roof structure including the gutter guard, gutter and downpipes are part of the "common property" of the Body Corporate and are not part of Lot 5 notwithstanding that that area provides the roof and roofing system and shelter for Lot 5. The Body Corporate and Community Management Act 1997 (Qld) ('BCCM Act') provides that it is the responsibility of the Body Corporate to administer and also to maintain "common property". The BCCM is for these reasons the responsible entity for the damage in the quotes as that legislation provides:[15]

(1) The body corporate for a community title scheme must -

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme...

• [43] Because the quotes from the plumber relate to "common property", it is the Body Corporate who has suffered the damage referred to and not the Applicant. The Applicant is not responsible for that part of the complex and as such has not suffered any loss. Accordingly, the Applicant's claim for these costs, including reimbursement of costs which she has already paid, is refused and this part of the Applicant's claim is dismissed.

• [44] Neither party made submissions whether the Human Rights Act 2019 (Qld) ('HR Act') applies to these proceedings.
• [45] The Tribunal must consider the human rights of the Applicant and the Respondent under the HR Act in reaching its decision in these proceedings.
• [46] The Tribunal is an entity which acts in an administrative capacity and is bound to comply with the HR Act in conducting the review jurisdiction in relation to the Application filed by the Applicant.
• [47] In considering the provisions of the NDA, the Tribunal must, to the extent possible that is consistent with the purposes of the HR Act, interpret that legislation in a way that is compatible with the Applicant's human rights.
• [48] The human rights of the Applicant and the Respondent include:

(a) recognition and equality before the law;

(b) property rights;

(c) fair hearing.

• [49] These human rights have to be considered by the Tribunal in the light of its exercise of the review jurisdiction in these proceedings.
• [50] The Tribunal has made findings about the Applicant's Application and the Respondent's Response to that Application. These findings can possibly be a limitation on the human rights of the Applicant and the Respondent under the HR Act. This limits their entitlements by imposing, in effect, a liability and limits the parties equal treatment with other applicants making Application to the Tribunal.
• [51] However, any such limitation on the parties' human rights arises from the provisions of the NDA. While the Tribunal is required to make a decision that is compatible with human rights and is to give proper consideration to human rights relevant to the decision, the Tribunal can make such a decision if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision.
• [52] The NDA creates a legislative scheme in relation to the effective management of neighbourhood disputes relating to trees and promotes responsible management of the environment. It has the purpose of protecting the community by providing rules about each neighbour's responsibility for trees so that neighbours are generally able to resolve disputes about trees without a dispute arising. The NDA is to facilitate resolution of any disputes about trees that do arise between neighbours.
• [53] This decision under the NDA is made in accordance with statutory provisions and is not an arbitrary decision. It is a decision based upon the legislative scheme and is reasonable and justified in accordance with s 13 of the HR Act in the light of the purposes of the NDA. The decision in these proceedings is made in a way that is consistent with the purpose of the legislation and has been interpreted in a way that is compatible with human rights as required by s 48 of HR Act. In these circumstances any limitation on the human rights of the Applicant and or the Respondent is reasonable and is justified in terms of section 8(b) of the HR Act.

• [54] The Tribunal makes the following Orders that Craig Michell is to arrange for :

(a) The pruning of the canopy of the single Gum Tree (Eucalyptus sp.) the subject of this Application for a tree dispute filed in the Tribunal on 19 April 2023 by Louise Mary Critchley and which Gum Tree is located in the south western corner of the property of Craig Mitchell as identified in the Application for a tree dispute and which pruning is to ensure that no section of the canopy extends across the alignment of the dividing fence structure separating the properties of both these parties, on or before;

(b) The pruning works referred to in (a) above should include the complete removal of the elongated and epicormically attached limbs and the stub from the previously failed limb as referred to in these proceedings;

(c) Annual inspection and reporting by a suitably qualified climbing Arborist to determine the visible strength of the junctions and to perform remediation works as required;

(d) All tree debris to be removed from the properties of Louise Mary Critchley and Craig Mitchell after the recommended pruning is performed;

(e) All pruning is to be performed in compliance with the requirements of the Australian Standard 4373-2007 "Pruning of amenity trees";

(f) Climbing spurs and/or climbing gaffs and/or climbing irons shall not be used during pruning works;

(g) All aerial inspections shall be performed by a minimum Australian Qualifications Framework (AQF) level five (5) qualified Arborist;

(h) The attending Arborist and/or the corporation, if any, to which the Arborist belongs shall provide proof of current Public Liability and Work Cover insurances prior to works been undertaken on site.

(i) Craig Mitchell is to pay all costs fees and charges relating to each of the items in (a) to (h) above inclusive.

[1] Title Search made on 5 May 2023 in the Applicant Bundle of Documents filed 12 May 2023.

[2] Respondent's Bundle of Documents filed 24 March 2024 containing proposal from Heritage Tree Care dated 21 April 2021.

[3] Title Search made on 25 March 2023 in the Applicant Bundle of Documents filed 12 May 2023.

[11] [2014] QCAT 461.

[12] [2022] QCAT 2.

[13] [2024] QCATA 20.

[14] [2016] QCATA 124.

[15] BCCM s 94(1). See also the provisions of the relevant Module for this Body Corporate complex.