Halter v Watton [2025] QCAT 446

• [1] The applicant and the respondent are neighbours in dispute. The applicant neighbour and respondent tree-keeper are the registered proprietors of, and reside at, 58 and 60 Currawong Road, Gooburrum, Queensland, respectively.
• [2] On 11 July 2024, the applicant filed an application in this Tribunal seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the "Act") identifying 12 trees located on the respondent's land along the common boundary.
• [3] The applicant claims the branches of the respondent's trees are more than 2.5 meters above the ground; and they overhang to a point over his land that is 50cm or more from the common boundary.
• [4] On 30 January 2025, the Tribunal directed that a qualified arborist be appointed as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application. Pursuant to the direction, a tree assessor inspected the trees on 28 February 2025 and provided a report on or about 1 March 2025.
• [5] The issues are:

(a) Is the applicant's land affected by the trees located on the respondent's land?

(b) Are the requirements satisfied before an order can be made?

(c) What orders does the Tribunal consider appropriate in relation to the trees?

(d) Is the neighbour entitled to compensation for damage to the driveway?

Is the respondent's land affected by the trees located on the respondent's land (s 46)?

• [6] The Tribunal has jurisdiction to hear and decide any matter relating to a tree in which it is alleged that the land is affected by a tree.[1]
• [7] The tree assessor's report refers to 11 trees as being a large contributor to the applicant's concerns as per the following tree table:

• [8] The tree assessor's report states that the base of the vegetation is located wholly on the respondent's land. The respondent does not challenge this statement, and I am satisfied from the photographs, drawings of the tree locations and the tree assessor's report that the trees are located on the respondent's land, and I find accordingly.
• [9] A photograph in the tree assessor's report showing the trees on the common boundary, the applicant neighbour's land (number 58) and the respondent tree-keeper's land (number 60) is reproduced below:

• [10] Tree is widely defined in the Act. It is not disputed that the trees described above are within the scope of the Act and I find accordingly.
• [11] Under s 46 of the Act, 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:

(B) serious damage to the land or any property on the land; or

(C) substantial, ongoing, and unreasonable interference with the neighbour's use and enjoyment of the land; and

(b) the land adjoins the land on which the tree is situated.

• [12] The applicant claims that branches from the trees overhang the land. The applicant claims that some of the branches extend to approximately seven to eight meters beyond the property boundary and that they are more than 2.5 meters above the ground.[2] The respondent states that all overhanging branches are approximately 2.5 meters above the ground and that one of the tree's branches extend approximately six meters over the boundary and that the remainder overhang less than six meters over the boundary.[3] I am satisfied from these statements by the parties, from the tree assessor's report and the photograph shown above that the trees overhang the land to the extent mentioned in this paragraph.
• [13] It is not disputed that the applicant's land adjoins the respondent's land on which the trees are situated, and I find accordingly.
• [14] I therefore find that the Tribunal has jurisdiction to hear and decide this matter under s 61 of the Act.
• [15] The application claims that the trees have caused serious damage to the neighbour's land or property on his land. The application states that the roots are causing damage to the neighbour's bitumen sealed driveway.[4] However, I am not satisfied on the material before me that this claim is established for the following reasons:

(a) The tree assessor does not say that the tree roots are clearly the cause of the damage. He refers to other possible contributing causes being an unconnected down pipe at the location and deterioration of bitumen over time. The tree assessor is cautious with his opinion as to the cause of the damage. He states:[5]

It is possible that tree roots have established under this area. An unconnected down pipe at this location could also have contributed to the root ingress and expansion as well as directly damaging the pavement". He also states that "the applicant pays 50% of driveway repair patch near shed door if (in bold in the report) during the repair a tree root is discovered to be contributing to the damage ...

As previously stated, the drive damage could be in part a result of an unconnected down pipe. The drive is as old as the house and can be expected that bitumen will deteriorate over time.

(b) The applicant's plumber, Jason O'Shea, carried out an inspection of the grey water soakage areas using a drain camera on or about 5 May 2025 and states in his invoice:

58 Currawong Dr: Undertook inspection of grey water soakage areas using camera to find tree roots in slotted pipe work. These tree roots are believed to be from neighbouring block (60 Currawong Dr) due to absence of trees on client property.

(c) I have had regard to the plumber's comments but do not place a lot of weight on them. The plumber states that he believes the tree roots in the pipework are from the respondent's land due to the absence of trees on the applicant's land. There is an assumption built into this comment, namely as there are no trees on the applicant's land, the roots must be from trees on the respondent's land. I do not find such statement of belief contained on an invoice as sufficiently persuasive to make a finding in favour of the applicant.

(d) The mere existence of tree roots of themselves alone does not establish that they are the cause of the damage claimed by the applicant. There is no independent evidence of an engineer or other expert that goes to the next stage to link the tree roots to the damage.

(e) Furthermore, the primary consideration for the Tribunal is the safety of any person and there is no evidence that the damage to the driveway is a risk to that safety or that the driveway is not functional.

(f) Also, I am not satisfied having regard to photographs provided by the respondent in 2017 and 2024 that the damage is serious.

• [16] The applicant also alleges that the trees have caused substantial, ongoing and unreasonable interference with the use and enjoyment of his land, particulars of which are:

(a) His garden area is practically rendered useless as it is almost covered by the respondent's trees;

(b) His roof top solar panels get very little if any sun after 2pm;

(c) The tree roots impact bitumen driveway and nearby soakage trenches in the future;

(d) Risk of tree/branch failure;

(e) Branch encroachment into the applicant's land; and

(f) Excessive leaf, blossom and seed drop that is causing a maintenance burden, specifically within the gutters of a shed and house.

• [17] There is evidence from the tree assessor that the shed gutter was full of leaves with plants germinating in the gutter. There is also evidence of extensive branch encroachment on to the applicant's land, and I accept the applicant's evidence that his garden area is practically rendered useless and that there is a risk of branch failure. I am satisfied that there is substantial, ongoing and unreasonable interference with the use and enjoyment of applicant's land.

Are requirements satisfied before an order can be made (s 65)?

• [18] I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondent. The applicant states that he has tried to resolve the dispute with the respondent.[6] There is evidence that parties attended mediation on or about 20 March 2024, that a second mediation was proposed and that there have been communications between the applicant and the applicant's solicitors on the one hand and the respondent on the other, in relation to the dispute.
• [19] There is no evidence of any relevant local law, local government scheme or local government administrative process for dealing with this dispute.[7]
• [20] I am satisfied from the evidence that the branches overhang the common boundary by at least 50 cm,[8] that the applicant cannot properly resolve the issue using the informal procedures in Part 4 of the Act and that he has given a copy of the application as required by the Act.
• [21] I am satisfied that the requirements of s 65 of the Act are met.

What orders does the Tribunal consider appropriate in relation to the trees (s 66)?

• [22] A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's tree[9] with specific responsibilities set out in s 52 of the Act. Relevantly, the tree-keeper is responsible for ensuring the tree does not cause serious damage to a person's land or any property on a person's land or substantial, ongoing and unreasonable interference with a person's use and enjoyment of the person's land.[10]
• [23] The orders the Tribunal may make are set out in s 66 of the Act. Under s 66(2), the Tribunal has wide powers to may make orders it considers appropriate in relation to a tree affecting the neighbour's land.
• [24] The Tribunal may make orders to remedy, restrain or prevent "substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land". If the alleged interference is an obstruction of sunlight, the obstruction must be a severe obstruction to a window or roof of a dwelling on the neighbour's land.[11]
• [25] Without limiting the powers given to it by s 66(2) of the Act, the Tribunal may pursuant to s 66(5):

(a) require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or ongoing basis;[12]

(b) authorise a person to enter the tree-keeper's land to carry out an order under the section, including entering land to obtain a quotation for carrying out an order;

(c) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under the section; and

(d) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the neighbour's land.[13]

• [26] The matters for the Tribunal's consideration in deciding an application are safety is primary[14] and removal or destruction of a living tree is to be avoided.[15] There are also general matters contained in s 73 of the Act that the Tribunal must consider. They include:

(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 the tree has any historical, cultural, social, or scientific value;

(c) any contribution the tree makes to the local ecosystem and to biodiversity;

(d) any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

(e) any contribution the tree makes to public amenity;

(f) 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;

(g) 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.

• [27] Section 75 contains the matters the Tribunal may consider if unreasonable interference is alleged:

(a) Anything other than the tree that has contributed or is contributing to the interference;

(b) Any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference;

(c) The size of the neighbour's land;

(d) Whether the tree existed before the neighbour acquired the land;

(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.

• [28] In relation to matters for consideration under ss 70-75, the tree assessor's report states:

the respondent values the landscape amenity that the trees provide with the trees also providing a means of vegetative screening between neighbours. The trees also contribute as a food source and habitat for native fauna.

• [29] The role of the independent tree assessor is to provide an assessment to help the Tribunal determine the dispute. His qualifications and experience are shown as including:

(a) Diploma horticulture/arboriculture;

(b) 23 years' experience within Local Government undertaking roles as tree assessor, arboriculture supervisor, manager capital delivery and assets, senior officer of parks operations and technical officer open space and environment.

(c) Tree assessor for the Tribunal since 2012.

• [30] I place substantial weight on the assessor's report for the following reasons:

(a) He is qualified, experienced and independent;

(b) The respondent agrees with the report and the applicant gives it qualified agreement;[16]

(c) During the hearing, the respondent accepted many, if not all, of the assessor's recommendations;

(d) The assessor treated the parties equally; inspections occurred on both parties' properties, and he held discussions with both parties.

• [31] Tree 1 - During the hearing, the applicant argued for the tree branches to be pruned back to the boundary line. The respondent said minor action only was required and that it should be left to the arborist who was engaged to carry out future pruning works. The tree assessor made no recommendation because, he said, the tree does not substantially interfere with the applicant's land. In my view the future pruning should be left to the discretion of the arborist as it is apparent from the photographic evidence that the tree does not substantially interfere with the applicant's land.
• [32] Tree 2 - The applicant argues for the tree to be pruned back to the boundary line. The respondent accepted the tree assessor's recommendation of crown reduction so that canopy does not extend more than 2 m into the applicant's land to a height of 4 m. Pruning work to ensure that the tree's crown is maintained as symmetrical/balanced. I accept the tree assessor's recommendation because it provides a reasonable and fair outcome in that the tree is to be pruned, as sought by the applicant, whilst preserving the landscape amenity and food source and habitat for native fauna.
• [33] Tree 3 - The parties agree that no action is required.
• [34] Tree 4 - The applicant argues for the tree to be pruned back to the boundary line. The respondent says they will abide by tree assessor's recommendation which is the same as for tree 2. There is evidence that this tree has specific value to the respondent.[17] As with tree 2, I accept the tree assessor's recommendation because it provides a reasonable and fair outcome in that the tree is to be pruned, as sought by the applicant, whilst preserving the landscape amenity and food source and habitat for native fauna.
• [35] Tree 5 - The applicant makes no written submissions regarding this tree.[18] The respondent says they will comply with the tree assessor's recommendation which is that no action is required. In the circumstances, I accept the tree assessor's recommendation.
• [36] Tree 6 - The applicant makes no written submissions regarding this tree.[19] The respondent says that they accept the tree assessor's recommendation which is to prune the lower branch that extends to the applicant's land. I interpret this as being pruned back to the boundary line. I accept the tree assessor's recommendation because it is a balanced approach.
• [37] Tree 7 - The parties agree that this tree is to be removed because it is defective.
• [38] Tree 8 - The applicant submits that this tree be removed.[20] The respondents agree with the tree assessor's recommendation of crown reduction so that the canopy does not extend more than 2 m into the applicant's land to a height of 6 m. Pruning work to ensure that the tree's crown is maintained and symmetrical/balanced. Section 72 of the Act provides that a living tree should not be removed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. In the Tribunal's view, the issue can be satisfactorily resolved by implementing the tree assessor's recommendations which I accept as the way to proceed.
• [39] Tree 9 - The applicant submits that the tree be pruned back to the boundary line. The respondent agrees with the tree assessor's recommendation which is for crown reduction so that the canopy does not extend more than 2 m into the applicant's land. Pruning work to ensure that the tree's crown is maintained as symmetrical/balanced. I accept the tree assessor's recommendation because it provides a reasonable and fair outcome in that the tree is to be pruned, as sought by the applicant, whilst preserving the landscape amenity and food source and habitat for native fauna.
• [40] Tree 10 - The parties agree with the tree assessor's recommendation that the bamboo be maintained so that encroachment into the applicant's land does not occur.
• [41] Tree 11 - The parties accept the recommendation of the tree assessor which is that no action be taken.

• [42] The applicant's submission is that the solar panels on the roof of his dwelling are shaded from 2pm by trees between 6 m to 12 m high and that this constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of his land. This is qualified where sunlight is involved. The requirement is that the sunlight obstruction be "severe". It is plain from the above photograph (number 58) that the solar panels are situated on the roof at a reasonable distance from the boundary and are quite exposed to sunlight. The evidence provided by the applicant in my view does not demonstrate that the trees constitute a "severe" obstruction of sunlight. At best there might be some reduced exposure to sunlight during winter months. Also, the evidence is that the relevant trees pre-existed the installation of the panels.

• [43] The applicant submits that a root barrier should be installed at the respondent's cost for the entire length of the boundary line between the properties and to a dept of 1000mm. The respondent agrees with the tree assessor's recommendation that a barrier be installed along the previous alignment for 25 meters to a depth of 600mm in the position indicated in the above photograph which is between the shed and the trees (about tree 7 to tree 10). The respondent agrees to pay the installation cost.
• [44] The applicant argues for the greater depth on the basis that they previously dug a 600 mm trench along the boundary in 2017 and severed encountered roots.
• [45] Both parties agree to the installation of a root barrier, and this is the recommendation of the tree assessor. The only issue are its specifications. I am not satisfied that the evidence is sufficient to require the respondent to install the barrier to the applicant's requirements, particularly as the respondent will be paying for it. I place more weight on and accept the specifications of the tree assessor who has more qualifications and experience than the applicant.

Is the neighbour entitled to compensation for damage to the driveway?

• [46] For the reasons stated above at [15], on the material before me the applicant has no entitlement to compensation for damage to the driveway. However, tree assessor's report states that the respondent's have agreed to pay for one half of the driveway repair if found that the cause of the lifting, when undertaking the repair, was because of tree root. This is also one of the assessor's recommendations provided the root is a minimum 40 mm in diameter. As the respondent has agreed to contribute to the rectification cost if the damage is caused by a tree root from their property in my view it is fair to make an order in the terms proposed by the tree assessor.

1. That the respondent, at their cost, and within three months of this order:

(a) Prune trees numbers 2 and 4. There is to be a reduction in the crown so that the canopy does not extend more than 2 m into the applicant's land to a height of 4 m. Pruning work to ensure that the tree's crown is maintained as symmetrical/balanced;

(b) Prune the lower branch of tree 6 back to the boundary line between the applicant's and the respondent's land;

(c) Remove tree number 7;

(d) Prune tree number 8. There is to be a reduction in the crown so that the canopy does not extend more than 2 m into the applicant's land to a height of 6 m. Pruning work to ensure that the tree's crown is maintained as symmetrical/balanced;

(e) Prune tree number 9. There is to be a reduction in the crown so that the canopy does not extend more than 2 m into the applicant's land. Pruning work to ensure that the tree's crown is maintained as symmetrical/balanced;

(f) Maintain tree number 10 (bamboo) so that encroachment into the applicant's land does not occur;

(g) Install a root barrier by a qualified person between the shed and the trees along the previous alignment for 25 linear meters to a depth of 600 mm as shown on the photograph at paragraph [9] of this decision.

(a) by an Australian Qualified Framework level 3 arborist with appropriate insurance cover; and

(b) in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

1. That the applicant provide access to his land for the purposes of undertaking the prescribed work, if required.
2. That the respondent is to pay 50% of driveway repair patch near shed door if during the repair a tree root is found to be causing the damage. The tree root must be a minimum of 40 mm in diameter.

AND IT IS NOTED that a reference to a tree number in these orders corresponds to the tree number described in the tree table contained at paragraph 7 of this decision.

[3] Page 19 of the respondent's submissions filed 18 September 2024.

[5] Pages 3 and 4 of the tree assessor's report.

[16] Paragraph 6 of applicant's submissions filed 24 July 2025, subject to various alternative actions mentioned in those submissions.

[17] Paragraph 2.2 of tree assessor's report.