Johnson v Burns [2025] QCAT 114

1. The applicant, George Raymond Johnson must advise the Tribunal of the election within seven (7) days of receiving the Tribunal's notice.

1. The report referred to in direction 7 will be the only expert evidence in the proceedings. No party will be allowed to produce further expert evidence.

• [22] Mr Johnson paid his share of the cost of the tree assessment report. Mrs Burns, however, failed to do so. Mr Johnson elected to pay the further sum of $500.00.
• [23] Mr Richards summarises his role as tree assessor and the issues addressed in his report. He then locates the trees on the common boundary in a photograph. A table contains a description of the trees, his recommendations for retaining and removing the trees and brief comments.
• [24] Under a heading 'Checks as to whether the applicant's land is affected by the tree(s)?', in paragraph 2.2 of the report, Mr Richards states that branches extending from the trees were all in excess of 2.5 metres in height. He then continues:

Branches encroached across the dividing fence on the majority of trees assessed ranging from 1m - 5m at varying heights, all significantly clear of ground level.

...

Pruning wounds to 4m were evidenced on assessed vegetation. Historical pruning was not visually observed above this height ...

• [25] The trees, in Mr Richards opinion, have not caused, are not causing and are unlikely to cause serious damage to land or property on land within the next 12 months. The extent of the of the leaf litter, Mr Richards continues, was not found to be any more excessive than would be found in any comparably populated vegetated area.
• [26] Mr Richards addresses the requirements of sections 70 - 75 of the ND Act. Then, in paragraph 2.4, he sets out his recommendations, as follows:

It is recommended that Tree No. 1 be removed in its entirety and the remaining stump either systemically poisoned or stumpground to below ground level.

All trees that grow along the adjoining boundary that encroach beyond the dividing fence be reduced back to the dividing fence at a minimum. All pruning wounds must be in accordance with Australian pruning standards. Repeat pruning intervals should be repeated yearly to ensure lateral branches remain compliant with the regulations set out in the neighbourhood dispute resolution act 2011.

Tree No. 7 (The Bamboo) be pruned yearly to remain in an upright form that does not lean or encroach beyond the dividing fence.

The easement between the dividing fence and row of subject trees on the respondent's side of the boundary remain clear of debris to the extent witnessed and documented at the time of inspection.

• [27] Mr Richards recommends that the work be perform by a minimum Australian Qualification Framework level 3 arborist with appropriate insurance cover and in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.
• [28] Mr Johnson filed in the Tribunal comments on the tree assessment report.

• [29] Trees are provided for in chapter 3 of the ND Act. A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's tree. The chapter applies to trees on land recorded in the freehold land register.
• [30] Tree is widely defined. It means:

(a) any woody perennial plant;

(b) any plant resembling a tree in form and size;

(c) a vine; or

(d) a plant prescribed under a regulation to be a tree for chapter 3 of the ND Act.[1]

• [31] Land is affected by a tree at a particular time if branches from the tree overhang the land and the tree has caused, is causing, or is likely within the next 12 months to cause:

(a) serious injury to a person on the land;

(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 the land adjoins the land on which the tree is situated.[2]

• [32] Tree-keeper is defined in section 48 of the Act. A person is a tree-keeper for a tree if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld) and the person is the registered owner of the lot under the Act.
• [33] A registered owner of a lot recorded in the freehold land register and an occupier of the land is a neighbour in relation to a particular tree or the tree-keeper for a particular tree if land affected by the tree is a lot recorded in the freehold land register.[3]
• [34] The responsibilities of a tree-keeper are provided for in section 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 and substantial, ongoing and unreasonable interference with a person's use and enjoyment of the person's land.[4]
• [35] Section 61 of the ND Act gives the Tribunal jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, at the date of the application to the Tribunal, land is affected by the tree.
• [36] The Tribunal must be satisfied of several matters before making an order under section 66 of the Act. Those matters include, inter alia:

(a) the neighbour has made a reasonable effort to reach agreement with the tree-keeper; and

(b) 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.[5]

• [37] Division 4 of part 4 of the Act states the matters for the Tribunal's consideration in deciding an application for an order under section 66. Those matters include safety[6] and removal or destruction of a living tree is to be avoided.[7]
• [38] The general matters the Tribunal must consider are spelt out in section 73. They include, inter alia:

(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.

• [39] The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour's land:

(a) to prevent serious injury to any 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.[8]

• [40] Without limiting the powers given it by section 66(2), the Tribunal may:

(a) 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;

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

(c) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the neighbour's land.[9]

• [41] The proceedings were heard by the Tribunal on 29 January 2025. Mr Johnson was accompanied by Mrs Johnson. Mr Burns appeared on behalf of Mrs Burns. He was accompanied by Mrs Burns.
• [42] Mr Johnson gave evidence. He is seeking orders, he stated, the trees on the common boundary be pruned back to the boundary fence and the bamboo be reduced in height to 4 metres.
• [43] Culms of bamboo fell across the fence on the common boundary onto his land during a severe hailstorm, Mr Johnson stated. They were on the ground for three - four days. A section of the fence collapsed.
• [44] Mrs Burns, Mr Johnson stated, planted the trees along the common boundary. His land was without trees at the time it was purchased.
• [45] His main concern, Mr Johnson stated, is leaf litter falling onto his land and finding its way into the gutters of his home preventing the collection of drinking water. Removing the leaf litter involves significant work on a regular basis.
• [46] Mr Burns did not cross-examine Mr Johnson.
• [47] Mr Burns, in evidence, stated he regularly prunes the trees along the common boundary. He does so with a 6.5 metre pole trimmer every twelve months. He has done so about ten times since doing so from a cherry picker about ten years ago.
• [48] The hailstorm mentioned by Mr Johnson was a one in one hundred years event. However, he did not lose a single tree. Only two culms of bamboo fell across the fence on the common boundary onto Mr Johnson's land, Mr Burns stated.
• [49] Mr Burns was unable to produce invoices or other documents evidencing the expenses claimed by Mrs Burns. The claim for the expenses was withdrawn. Mr Burns, however, pressed the claim for $3,000.00 for distress and inconvenience consequent on Mr Johnson removing the fence on the common boundary.
• [50] Mr Johnson did not cross-examine Mr Burns.
• [51] Mr Johnson agreed with the recommendations made by Mr Richards in his tree assessment report, adding the bamboo should the reduced to four metres.
• [52] Mr Burns also agreed with Mr Richards recommendations, save that the work being carried out by an Australian Qualified Framework level 3 arborist with appropriate insurance cover is unnecessary given his experience with pruning trees. Also, reducing the height of the bamboo, he stated, is unnecessary. He does not accept bamboo leaf litter finds its way into the gutters of Mr Johnson's home and maintains the claim for compensation.

• [53] The issues to be decided by the Tribunal narrowed significantly during the hearing of the proceedings given the concessions made by the parties concerning Mr Richards' recommendations. They may be summarised in the following terms:

(a) whether there is a risk of serious injury to a person on Mr Johnson's land or serious damage to Mr Johnson's land or property on his land consequence on falling bamboo culms. If so, the issue calls into consideration whether the bamboo should be removed or reduced in height to four metres or another height. It also calls into consideration whether bamboo leaf litter falling on Mr Johnson's land and said to be blocking gutters of his home is reason for removing or reducing the height of the bamboo;

(b) whether Mr and Mrs Burns are entitled to compensation in the sum of $3,000.00 or any other amount; and

(c) whether the orders recommended by Mr Richards are appropriate.

• [54] Land is affected by a tree at a particular time if branches from the tree overhang the land or the tree has caused, is causing, or is likely within the next 12 months to cause serious injury to a person on the land, serious damage to the land or any property on the land or substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of the land.[10] A tree-keeper is responsible for cutting and removing any branches of a tree that overhang a neighbour's land.[11] Additionally, he or she is responsible for ensuring that the tree does not cause serious injury to a person, 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.[12]
• [55] The primary consideration for the Tribunal in deciding an application for an order under section 66 of the Act is the safety of any person.[13]
• [56] One of the general matters the Tribunal must consider is any risk associated with the tree in the event of a cyclone or other extreme weather event.[14]
• [57] The evidence, which I accept, shows that on 3 March 2022, during a severe hail, rain and storm, and high wind, two culms of the bamboo fell across the fence on the common boundary and onto Mr Johnson's land. The storm was described in evidence as a once in one hundred years event. No one was injured. The fence, however, was damaged. Property on Mr Johnson's land was not damaged.
• [58] Mr Richards, in his tree assessment report, states the branches of trees on Mrs Burn's land overhang Mr Johnson's land by between 1 metre and 5 metres at varying heights significantly clear of ground level. I accept his evidence, and so find. It is consistent with the photographs filed in the Tribunal by Mr Johnson and the photographs included in the report.
• [59] Mr Johnson asserts the bamboo constitutes a risk to the safety of persons on his land. The only evidence of the risk is that found in the culms of bamboo falling across the fence on the common boundary and onto his land on 5 March 2022. Whilst Mr Johnson asserted it has happened in the past, there is no satisfactory evidence of it having done so. There is no evidence of it happening since the storm.
• [60] Mr Richards is of the opinion the trees identified, including the bamboo, have not caused, are not causing and are unlikely to cause within the next 12 months injury to a person on Mr Johnson's land, serious damage to Mr Johnson's land or any property on his land or substantial, ongoing and unreasonable interference with Mr Johnson's use and enjoyment of his land. I accept his evidence, and so find.
• [61] The risk asserted by Mr Johnson, in my opinion, is remote. As was observed by Muir JA in Graham & Ors v Welch[15], a decision of the Queensland Court of Appeal (Muir JA and Atkinson and Applegarth JJ):

[1] ... Trees on suburban residential allotments contribute significantly to their amenity and that of the surrounding neighbourhood. Their value is not merely aesthetic in nature, although that is obviously important in itself. As well as providing shade and shelter, they can act as wind breaks, help retain soil, provide or improve privacy and attract birds and other wildlife.

[2] Their manifold benefits do not come without disadvantages, as many neighbourhood disputes over trees will testify. A householder who may not object to the shade provided by a neighbour's tree in summer may be less enamoured of its shade in winter, its leaves on lawns, pathways and in guttering and its roots in pipes and foundations. Nevertheless trees, often too large for, and otherwise unsuited to their position if measured by the standards of landscape architects, are part and parcel of Queensland suburbia. Residents of Queensland are generally aware of their benefits and disadvantages and of the hazards which they pose.[16]

• [62] Atkinson J, in separate reasons for decision, said:

... Trees and bushes are common place and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods ...[17]

• [63] The risk asserted by Mr Johnson, I find, is not established by the evidence. In my opinion, it would be contrary to principle to require the removal, or reduction in height, of the bamboo to avoid the possibility of further culms falling onto Mr Johnson's land.
• [64] Leaf litter is at the heart of Mr Johnson's complaint about the bamboo. It is a common complaint in tree disputes heard by the Tribunal. However, as was observed by the Tribunal in Finch v Grahle[18], generally speaking, leaf litter will not, of itself, be sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of land.[19]
• [65] Mr Johnson's home is surrounded by trees. Some trees appear to be located as close to his home as the bamboo, or closer.
• [66] A photograph filed in the Tribunal shows a large quantity of leaf litter and other debris near the fence on the common boundary. Whilst I accept removing leaf litter falling from trees on Mrs Burn's land onto Mr Johnson's land involves additional work on a regular basis, I do not accept the quantity of leaf litter is wholly attributable to the bamboo or constitutes a substantial, ongoing and unreasonable interference with Mr Johnson's use and enjoyment of his land. Nor do I accept that any blocking of the gutters of Mr Johnson's home is wholly attributable to bamboo leaf litter. Given the location of Mr Johnson's home, the need to regularly remove leaf litter from the gutters is not surprising.
• [67] Mr Richards, in his tree assessment report, expresses the view the quantity of leaf letter is not more excessive '... than would be found in any comparably populated vegetated area.' I accept his evidence.
• [68] I am not satisfied, to the requisite standard, the bamboo leaf litter constitutes interference that is substantial, ongoing and unreasonable.

• [69] Mr and Mrs Burns claim compensation in the sum of $3,000.00 for distress and inconvenience consequent on Mr Johnson demolishing the fence on the common boundary, their land being unsecured for more than three months and they having to keep their three dogs in their home for that time.
• [70] The counter-application claiming compensation for distress and inconvenience is filed in the application for a tree dispute. Mrs Burns is the respondent to the application while Mr Burns is respondent to the counter-application. The claim for compensation, however, is made by Mr and Mrs Burns.
• [71] Mr Burns, in evidence, did not expand on the distress and inconvenience asserted in the counter-application. Mrs Burns did not give evidence.
• [72] The power in the Tribunal to award compensation for distress and inconvenience in a tree dispute was not identified by Mr Burns.
• [73] Under section 66(5)(f) of the ND Act, the Tribunal may require a tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the land. The compensation sought here is not in the category specified in the section.
• [74] The counter-application for compensation might be treated as a counter-application in the application for a fence dispute it remaining for consideration notwithstanding withdrawal of the application by Mr Johnson. The Tribunal, for an application in relation to fencing work for a dividing fence, may decide and order the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence caused by another adjoining owner or a person mentioned in section 26(1)(b) of the ND Act[20] and the amount of compensation payable to in adjoining owner for the removal of a fence under section 33(3) of the Act. Once again, the compensation claimed by Mr and Mrs Burns does not fall within the categories specified.
• [75] Even if there is power to award compensation for distress and inconvenience, I am not satisfied, to the requisite to standard, the evidence establishes the distress and inconvenience asserted or an entitlement to compensation in the sum of $3,000.00 or any other amount. There is no satisfactory evidence of Mr and Mrs Burns protesting the demolition of the old fence and construction of the new fence and they did not avail themselves of the remedy available in part 5 of the ND Act.
• [76] The claim for compensation is rejected.

Whether the orders recommended by Mr Richards are appropriate

• [77] Mrs Burns has agreed to remove tree number 1 described in the tree table on page 2 of the Mr Richards' tree assessment report and the stump by either stump grinding or suitable chemical poisoning.
• [78] I have found Mr Johnson's land is affected by trees numbers 2 - 9 (both inclusive) described in the tree table on page 2 of the Mr Richards' tree assessment report. Mrs Burns is a tree-keeper and has the responsibilities imposed on her by section 52 of the ND Act.
• [79] Before the Tribunal may make an order under section 66, it must be satisfied of the matters in section 65. I am satisfied of the following matters:

(a) Mr Johnson has made a reasonable effort to reach agreement with Mrs Burns;

(b) the overhanging branches of trees numbers 2 - 9 (both inclusive) extend to a point over Mr Johnson's land that is at least 50 centimetres from the common boundary and the parties cannot properly resolve the issue using the process under part 4 of the Act; and

(d) Mr Johnson has given a copy of the application for a tree dispute to Mrs Burns.

• [80] The safety of a person, as I have said, is the primary consideration.[21] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[22]
• [81] In deciding what orders are appropriate, I have considered each of the matters in section 73 of the ND Act, to the extent relevant in the circumstances here. And because Mr Johnson alleges tree number 7 is likely to cause serious injury to a person on his land, I have considered the matters in section 74.
• [82] The parties agree with Mr Richard's recommendations for removal of tree number one and the stump, the ongoing pruning of trees numbers two - nine and the maintenance of what is described in Mr Richard's report as the 'easements', subject to minor qualifications. Mr Johnson asks that the height of the bamboo be reduced to four metres.
• [83] Mr Burns asserts the ongoing work being carried out by an Australian Qualified Framework level 3 arborist with appropriate insurance cover is unnecessary given his experience in the pruning of trees. However, he is not an Australian Qualified Framework level 2 arborist, the appropriate qualification for pruning trees.
• [84] He further asserts reducing the height of the bamboo is unnecessary and does not accept bamboo leaf litter finds its way into the gutters of Mr Johnson's home.
• [85] I have addressed whether the bamboo should be removed or reduced in height consequent on the risk of serious injury to a person on Mr Johnson's land or serious damage to Mr Johnson's land or property on his land. The risk has not been established by the evidence and the quantity of bamboo leaf litter is not sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Johnson's land. The reason for reducing the height of the bamboo is not established.
• [86] Mr Burns, I accepted, has experience in the pruning of trees. However, he is not an Australian Qualified Framework level 3 arborist. Further, given the level of disputation in the past, it is preferable the work be carried out by someone other than the parties with the appropriate qualification and insurance cover.
• [87] The orders recommended by Mr Richards, in my opinion, are appropriate.

• [88] The orders of the Tribunal are as follows:

1. Mrs Burns, at her cost and within two months of this order:

(a) remove tree number one described in the tree table on page 2 of the tree assessment report by Mr Steven Richards dated 8 August 2023 and filed in the Tribunal on 15 September 2023 ('Mr Richards' tree assessment report') and the stump by either stump grinding or suitable chemical poisoning; and > > (b) prune trees numbers two - nine (both inclusive) described in the tree table on page 2 of Mr Richards' tree assessment report to remove any branches overhanging Mr Johnson's land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees.

1. Mrs Burns, at her cost and not less than once a year commencing within twenty-eight days of 1 July 2026 and thereafter within twenty-eight days of 1 July in each succeeding year, prune trees numbers two - nine (both inclusive) described in the tree table on page 2 of Mr Richards' tree assessment report to remove any branches overhanging Mr Johnson's land with any pruning wounds being treated in accordance with Australian Standard 4373-2007 - Pruning of amenity trees. 2. The work required by orders 1 and 2 be carried out:

(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. Mrs Burns keep clear and maintain the area of her land adjacent to the fence on the common boundary between the Mr Johnson's land and Mrs Burns' land described in Mr Richards' tree assessment report as an easement to the standard described and depicted in the report. 2. Mr Johnson give Mrs Burns and any person engaged by her such access to the Mr Johnson's land as they may reasonably require to carry out the work in orders 1 and 2 on not less than seven days' notice by email.

[15] [2012] QCA 282.

[18] [2017] QCAT 80, at [24].

[19] See also Vecchio v Papavasiliou [2015] QCAT 70; Thomsen v White [2012] QCAT 381.