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[2026] QCAT 111
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2026-03-05
Member Paratz AM
Original judgment source is linked above.
NEIGHBOURHOOD DISPUTE RESOLUTION - TREES - where a hedge between two properties was overhanging the boundary - where the hedge was long and high - where the overhanging branches were causing ongoing and unreasonable interference with the neighbours use and enjoyment of their land - where the hedge had been planted before the neighbours' house was built - where the responsibility of the tree-keeper for the proper care and maintenance of the tree-keeper's tree was discussed - where an order was made for trimming the hedge back to the boundary
Hollings v Owners Corporation Strata Plan 73586 [2023] NSWLEC 1232
Vecchio v Papavasiliou [2015] QCAT 70
[1] David John Irwin and Jennifer Kay Irwin ('the neighbours') are the registered owners of a property at 92A Ireland Street, Cleveland, in the State of Queensland.
[2] Gavin Lee Grogan ('the tree-keeper') is the registered owner of an adjoining property at 96 Ireland Street, Cleveland, in the State of Queensland.
[3] The neighbours filed an application for a tree dispute in the Tribunal on 13 September 2023 seeking an order that the tree-keeper carry out work on trees to remove or prune branches, and for other tree work.
[4] The property owned by the tree-keeper 'wraps around' the property owned by the neighbours on two adjoining sides.
[5] The trees which are the subject of this matter are a line of 32 Murraya Paniculata and 3 Syzygium Smithii trees which extend beside two side boundaries between the two properties, for a total distance of 38 metres.
[6] The neighbours seek Orders for annual maintenance by the tree-keeper to keep the trees trimmed to a manageable height below the roofline of the neighbours' house, and to the common boundary line.[1]
[7] The neighbours' grounds for seeking the orders are as follows:[2]
[8] The parties have been unable to resolve the dispute between themselves, and the matter came for a hearing before me on 18 September 2025.
[9] Oral evidence was given by Jennifer Kay Irwin, David John Irwin, and Kevin Lee Grogan, and robust cross-examination was conducted by the parties of each other.
[10] At the conclusion of the hearing, the neighbours handed up their Closing Submissions in writing and spoke to them.
[11] I gave Directions for the tree-keeper to file his Closing Submissions in Response in writing by 4:00pm on 21 November 2025; and for the neighbours to file any Closing Submissions in Reply by 4:00pm on 5 December 2025. Submissions were subsequently filed by the parties accordingly.
[12] The neighbours filed a joint statement of evidence.
[13] They stated that the trees had the following effects:
(1) They are unable to use the side of their house as the branches extend beyond the boundary line and into the yard, and in places touching their house; and that they are unable to use the clothes-line as the branches extend both into and over the clothes-line; and that their grandchildren are unable to fully utilise the riding of their bikes around the house, and are unable to play in that area.[3]
(2) Excessive flower and tree litter was causing an ongoing problem trying to keep it from their pool filtration system and entertaining area.[4]
(3) Branches are hanging over and on their roof, and rats and vermin are breeding in the vegetation and have gained access to the roof via the branches that overhang their house; and this is affecting the quality of their sleep due to the noise caused by them running around, and their presence is causing a general feeling of uncleanliness and of unseen health concerns.[5]
(4) The overhanging branches are scratching on the gutters at the side and back of their house,[6] and have started to grow into their carport.[7]
[14] They stated that the Murraya trees had been planted as close as 20 centimetres from the boundary line, and that if not trimmed, such trees can grow to 8 metres or more;[8] and that the Syzygium trees are planted as close as 75 centimetres from the boundary line, and that if not trimmed Syzygium big red trees can grow to 6 metres in height, and Syzygium Smithii trees can grow to 15 metres in height.[9]
[15] The tree-keeper filed a response to the Application for a tree dispute on 1 November 2023, but did not file any further Statement of Evidence.
[16] In his response the tree-keeper sought orders that the neighbours may trim the trees to the fence line and return them to him if they wished, and pay compensation to him for the damage to his hedge trees.[10]
[17] The tree-keeper attached to his response a copy of a letter dated 6 September 2023 which he had sent to the neighbours, outlining his position as follows:[11]
Please do not cut the trees past the boundary without discussing with me first. We value the privacy these trees give us so that our pool is not in sight of your house. As previously outlined those trees were well and truly established before your property was developed into 4 lots and your home was built (and before you decided to add the solar panels). You should have taken your highlighted issues with the hedges into consideration before purchasing your property in 2020.
[18] In his response, the tree-keeper denied that there were any safety or health risks due to the hedge trees; denied that the branches currently overhang 50 centimetres over the boundary for 38 metres; noted that the hedge trees are evergreen shrubs and do not have any falling dead branches that pose any safety threats; denied that the hedges are damaging the paint on the neighbours' roof and gutters, denied that the hedge trees have caused any serious damage; denied that the hedge trees block sunlight from the whole side of the neighbours' house; and said that the tree litter had accumulated after the neighbours had trimmed surrounding hedges including ones on their own property and had not cleaned up.[12]
[19] In his response as to whether he had taken any steps to stop or reduce interference, the tree-keeper responded that the trees had been at that height since the neighbours purchased their property, and maintenance to the property should have been taken into consideration at the time of purchase;[13] and said that the hedge trees were 4.1 metres in height when the neighbours bought their property in June 2020.[14]
[20] The tree-keeper summed up his responses to the issues as follows:
[21] The neighbours submitted that the orders they were seeking were as follows:
[22] They submitted that they had asked the tree-keeper to maintain his trees in 2020; and that between 2020 and August 2023 they had paid to maintain the vegetation growing over the boundary line; and on 30 August 2023 had made a written request to the tree-keeper for a written plan to move forward with the ongoing maintenance of the vegetation growing on to their property.[16]
[23] They submitted that the tree-keeper had responded that the neighbours could trim branches to the boundary line and decide whether or not to return them to him.[17]
[24] As to the height of the trees in 2020, the neighbours say that at the boundary the trees were kept to 2.5 metres, but have since grown as follows:[18]
The trees at the bottom section of our house were not full height and we were able to keep them trimmed to 2.5 metres. We were having the trees trimmed to the top of the trees on our side. The trees have grown as the contractor's equipment can no longer reach to the top of the trees on our side of the boundary line. At the time the trees were above our roof height but were not growing over the boundary line or on or over our roof as they are now doing.
[25] The neighbours submit that the photos attached to their submission show that the branches growth extends up to and beyond 900 millimetres, and that the branches are more than 2.5 metres over the ground as they are growing over the house and the carport, and some of the trees are planted 30 centimetres from the boundary line and have bare branches that extend into the neighbours' yard; and are rubbing against the gutters and scratching the paintwork.[19]
[26] The neighbours submit that they have found it best to communicate by written correspondence with the tree-keeper, as they find the tree-keeper's verbal communication to be confronting and causes them distress.[20]
[27] The tree-keeper notes that the dispute relates to the maintenance of Murraya Paniculata trees and Big Red Syzygium trees growing on the border between the two houses.[21]
[28] He notes that his property has 11 neighbours, and the entire perimeter is planted with hedges, and that no other neighbours have raised complaints about trees. He comments that the concern raised by the neighbour is isolated and does not justify extensive pruning.[22]
[29] He described the timeline of events relating to his house, and matters leading up to this dispute as follows:[23]
[30] The tree-keeper submits that the claim that the trees pose a safety risk and are likely to cause harm within the next 12 months is not supported by evidence, and that no harm has occurred in the 31 years since the trees were planted.[24]
[31] The tree-keeper submits that there is no structural damage to the applicants' property, and that the trees have withstood strong winds during Cyclone Alfred (March 2025) without causing damage to property, which demonstrates that the trees are structurally sound, healthy and safe.[25]
[32] He submits that there is a normal amount of tree litter dropped by the trees and does not constitute substantial, ongoing or unreasonable interference.[26]
[33] He does not agree that the trees are affecting the performance of the neighbours' solar panels, and submits that the trees do not cast shade on the applicants' solar panels at any time of the day.[27]
[34] The tree-keeper submits that the applicants' house was constructed very close to the boundary fence, adjacent to the trees, and that any minor interference such as shading or debris is largely as a result of the choice to build near pre-existing trees.[28]
[35] The tree-keeper denies the accusation that verbal communication with him would be 'confronting and cause distress' as he had never met Ms Irwin until the hearing, and the meeting with Mr Irwin in 2020 was 'short and amicable'.[29]
[36] The tree-keeper says that he has undertaken, or is willing to undertake, reasonable measures to address concerns, including: pruning, barrier, hedging maintenance schedule.[30]
[37] The tree-keeper concluded his submissions in response by seeking the following alternative outcomes:[31]
I respectfully request that QCAT:
- Deny the application, or
- Limit any order to minor maintenance work only as appropriate rather than severely cutting back, or
- Make any other reasonable orders taking into consideration that the trees pre-date when the applicant's home was built.
- Ask that the applicant does not reach over the fence line to prune trees without permission. Only trim to the fence line if need be.
[38] The neighbours seek similar orders in their Reply submissions to those referred to in their closing submissions.
[39] They request that orders be made to ensure maintenance and clean up of the trees in a clearly documented way, rather than an 'on will, or on when they would be trimmed, scenario' and refer to an Order giving them comfort as follows:[32]
The order would allow us to age and move forward peacefully and amicably knowing that the next 10 years we are without the ongoing burden of the trees and the repercussions they are causing which is adding extra stress, anxiety and expense to our lives.
[40] It is unfortunate that the parties in this matter have not been able to come to some amicable arrangement in relation to management of the hedging in question.
[41] Whilst there is dispute between the parties as to the actual current height of the trees, and the distance they overhang, it is apparent from the photographs that the trees do extend significantly across the boundary line, and do extend to the neighbours' house.
[42] The tree-keeper does not appear to dispute that pruning of the trees should be conducted in order to avoid interference with the neighbours' house, however considers that it should be the responsibility of the neighbours to trim the trees back to the fence line at their own expense.
[43] The principles of law to be applied are well settled. Section 41 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('the Act') states simply that:
(1) A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's tree.
[44] The recurrent contention of the tree-keeper in this matter, that he should not have to maintain the trees that are indisputably on his land, because the trees were planted before the neighbours built their house, and the house was built too close to the boundary, is not supported by the provisions of the Act.
[45] Section 52 of the Act provides that it is the tree-keeper's responsibility to cut and remove overhanging branches, and to ensure that the tree does not cause substantial ongoing and unreasonable interference with a person's use and enjoyment of the person's land, as follows:
(1) A tree-keeper is responsible for cutting and removing any branches of the tree that overhang the neighbour's land.
(2) A tree-keeper is responsible for ensuring that the tree does not cause -
(a) serious injury to a person; or
(b) serious damage to a person's land or any property on a person's land; or
(c) substantial, ongoing and unreasonable interference with a person's use and enjoyment of the person's land
[46] Section 65 of the Act sets out the requirements before the tribunal may make an order. These include that the neighbour has made a reasonable effort to reach agreement with the tree-keeper; and that the branches overhanging the land extend to a point over the neighbour's land that is at least 50 centimetres from the common boundary.
[47] The tree-keeper has canvassed in the Orders he has proposed, as an alternative in his Submissions in Response, that ongoing maintenance work may be required, and requested that be limited to minor maintenance work only as appropriate rather than severely cutting back.
[48] The tree-keeper places great weight upon the issue of the neighbour's house being built too close to existing trees. Section 75(d) of the Act provides that if the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land, QCAT may consider whether the tree existed before the neighbour acquired the land.[33]
[49] The effect of section 75(d) is to bring the issue, of the tree existing before the neighbour acquired the land, into the discretion of the tribunal. It is not determinative that if a tree was there before the neighbour's house was, that therefore the neighbour is deprived of the benefits and intent of the Act as a whole.
[50] The tree-keeper's property is large, and has 11 neighbours. The neighbours' property was apparently one of four in a subdivision that was created adjoining the tree-keeper's property. I expect that this was an instance of urban densification, which was approved by the relevant authorities.
[51] I do not consider it of particular significance that none of the other neighbours have complained - in this instance, these neighbours have complained, and they are entitled to use and enjoyment of the approved property which they have purchased.
[52] I consider that there is a proper basis to accept the neighbours' contentions in this matter that the trees are causing substantial ongoing and unreasonable interference with their use and enjoyment of their land, on the following bases:
(1) The hedging is tall and extensive, healthy and vibrant, and will continue to spread if left unchecked.
(2) I accept the contention of the neighbours that such a hedge would produce substantial leaf litter, as shown by the photographic evidence.
(3) I accept the contention of the neighbours as to the branches brushing up against their house, as shown by the photographic evidence, and that if left unchecked, the house will be damaged.
(4) Whilst there are no measurements as to the output of the solar panels, and whilst the tree-keeper contends that the solar panels are not obscured, it is apparent that if the hedging is not kept under control, that the solar panels would be obscured and their performance be limited.
(5) The intrusion of the hedge onto the open space between the boundary fence and the side of the neighbours' house, obviously reduces the amenity of that area, its navigability, and its usage.
[54] A similar situation was considered by the Land and Environment Court, New South Wales, in 2023,[34] where the respondent's eastern boundary was approximately 37 metres long and numerous mock orange plants formed a hedge along the entire length of the boundary. Trees in the boundary hedge were 3.5 metres tall or more, and formed a dense visual screen above the paling fence along the boundary. Above the fence, the trees, branches and foliage extended into the applicant's properties.
[55] The Court found that the trees and the hedge caused a severe obstruction of sunlight to the adjoining property, which could be sufficiently restored by pruning the hedge, and ordered that the hedge be reduced along the boundary to a height no greater than 2 metres, and that the respondent was to repeat the pruning at quarterly intervals, that is during each August, November, February, and May.
[56] The Tribunal considered appropriate orders in relation to a hedge in 2015 in Vecchio v Papavasiliou[35] where the tree-keeper was ordered to prune and limit the height of the tree hedge between the properties at a height of 4.55 metres from natural ground level, and conduct periodic and ongoing hedging at not less than six monthly intervals.
[57] There may be practical difficulties in the tree-keeper being able to cut the hedge back to the boundary, as it is placed so close to the boundary. This may require the tree-keeper being given access to the neighbours' property to be able to work from that side. Alternatively, the tree-keeper may find a way to create a gap between the hedge and the fence, so that the trimming can be conducted from the tree-keeper's side.
[59] The actual height of the hedge is not the significant issue in this matter. The height of the hedge may affect the shading of the solar panels, but that is not established by any evidence.
[60] The significant issue in this matter is the hedge overhanging on to the neighbours' property and interfering with it.
[61] The tree-keeper appears to acknowledge this, by proposing that the neighbour trim the hedge back to the fence line. That may be the appropriate action, but it is the tree-keeper's responsibility to do so, and not the neighbours'.
[62] I therefore will make orders requiring the hedge to be trimmed back to the fence line, by the tree-keeper, without nominating a height at which the hedge is to be kept, which might require the tree-keeper having access to the neighbours' property, and the neighbour cooperating in giving such access.
(1) The registered owner of the property at 96 Ireland Street, Cleveland, Queensland ('the tree-keeper') is to arrange to have the following works carried out on the hedge of 32 Murraya Paniculata and 3 Syzygium Smithii trees which are the subject of the dispute ('the Initial Works') at its sole cost:
(i) The tree-keeper is to prune the hedge of trees between 92A Ireland Street, Cleveland ('the neighbour'), and 96 Ireland Street, Cleveland so that it does not extend beyond the boundary between the two properties.
(ii) The initial works are to be conducted within three (3) months of the date of this Order.
(2) The tree-keeper is to carry out periodic and ongoing pruning as per the Initial Works as required, and not less than at twelve (12) monthly intervals ('the Subsequent Works)'.
(3) The tree-keeper is to give the neighbour at least three (3) days notice of his intention to conduct the Subsequent Works.
(4) The neighbour is to provide access to the tree-keeper, if requested by the tree-keeper, to conduct the Initial Works and the Subsequent Works, at a reasonable and mutually convenient time.
(5) The tree-keeper is to clean up and remove all trimmings in conducting the Initial Works and the Subsequent Works, and is to leave the neighbour's property in a safe, clean and tidy condition.
[1] Application for a tree dispute, filed 13 September 2023, [39].
[10] Response to application for a tree dispute, filed 1 November 2023, [5].
[15] Applicants' closing submissions 1/2, p 1.
[21] Closing submission response, filed 21 November 2025, p 1.
[32] Closing submission response from applicants, filed 1 December 2025, p 2.
[34] Hollings v Owners Corporation Strata Plan 73586 [2023] NSWLEC 1232.
Irwin
Grogan [2026] QCAT 111