May v Moroney [2026] QCAT 145

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 93

[1] The Applicants are the owners of 76 Cardigan Street, Granville in the State of Queensland. The Respondents are the owners of 74 Cardigan Street, Granville in the State of Queensland.

[2] The Applicants complain that a number of trees on the Respondents' land overhang their property including:

(a) a large gum tree which has branches that extend approximately eight (8) metres across the boundary fence so that they overhand the Applicants' land by a considerable degree and which has previously dropped a large branch causing damage to the Applicants' property;

(b) a mulberry tree which overhangs the Applicants' land by more than 500mm;

(c) a poinciana tree which overhangs the Applicants' land by more than 500mm and which has roots which have previously caused damage to storm water pipes on the Applicants' land and which currently has roots which are above the ground and cause a safety hazard on the Applicants' land; and

(d) eight (8) bottle brush trees, each of which overhang the Applicants' land by more than 500mm.

[3] They have applied to the Tribunal under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('ND Act') and sought orders in respect of trees on the Respondents' land, namely:

(a) removal of the poinciana tree;

(b) removal or pruning, the branches and foliage of the gum tree, mulberry tree and bottle brush trees and taking away of the material so removed or pruned;

(c) payment of the costs of carrying out the orders.

[4] The Tribunal is empowered to hear and determine this dispute in its original jurisdiction pursuant to s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') and s 61 of the ND Act.

[5] On 30 April 2024 directions were made for an affidavit of service to be filed, for notice to be given to the local government and any other person affected by the proposed orders relating to the trees, service of material upon the First Respondent. I find that each of those directions were complied with. The Tribunal also directed on that occasion that the first respondent file a Form 52 - Response by 4pm on 25 June 2024. The Respondents have never complied with that direction.

[6] On 7 August 2024 further directions were made joining the Second Applicant and the Second Respondent as parties to the proceeding, although I infer that was done in the absence of the Respondents because it was also directed that, if the Respondents failed to attend on the next occasion the matter was before the Tribunal, the proceeding would continue and be determined on the material filed by the Applicants. Those directions also required the Respondents to provide the Tribunal with their telephone number by 4pm on 1 September 2024, but they did not ever comply with that direction.

[7] On 4 September 2024 further directions were made requiring the Applicants to file and give to the Respondents any additional evidence and submissions they wished to rely upon by 4pm on 29 November 2024. The Respondents were given until 4pm on 17 January 2025 to do the same. The Respondents did not comply with that direction.

[8] A Notice of Hearing was sent on 13 February 2026, advising the parties that this matter had been set down for hearing at the Tribunal in Brisbane on 11 March 2026 at 1:30pm. It included a notice that if a party failed to appear at the hearing, the Tribunal might proceed and make orders in their absence. The Applicants appeared by audio visual link as they were permitted to do, but the Respondents did not appear at all.

[9] I was satisfied that the Respondents were given notice of the hearing and I determined to proceed in their absence pursuant to s 93 of the QCAT Act.

[10] Section 52 of the ND Act makes it clear that a tree-keeper is responsible for:

(a) cutting and removing any branches of a tree that overhang a neighbour's land;

(b) ensuring their trees do not cause serious injury to a person or serious damage to a person's land or property or substantial, ongoing and unreasonable interference with a person's use and enjoyment of a person's land; and

those obligations are in place whether or not the Tribunal makes an order.

[11] Section 66(2)(b)(ii) of the ND Act gives the Tribunal broad powers to make an order it considers appropriate about a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with a neighbour's use of their land.

[12] Section 72 of the ND Act recognises the importance of trees in residential neighbourhoods and makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved.

[13] Section 71 of the ND Act identifies that the primary consideration under the ND Act is the safety of any person. I am satisfied that the gum tree, because of its overhanging branches, poses a real risk of serious injury to the Applicants or persons visiting their property in the event that one or more such branches fall. I am also satisfied that the poinciana tree poses a risk to the safety of persons because some of the roots are above ground level and present a tripping hazard on the Applicants' side of the fence, especially in circumstances where the Applicants are elderly.

[14] I have had regard to the matters in s 73 of the ND Act. Relevantly, I note that:

(a) the poinciana tree is located right beside the boundary and overhangs the Applicants' swimming pool enclosure by more than 500mm which in itself likely causes a safety hazard, but also causes substantial, ongoing and unreasonable interference with the Applicants' use and enjoyment of their land in the sense that vegetable matter which falls from the tree lands in the swimming pool and chokes up its filter which in my estimation is more of an impact than vegetable matter falling and accumulating on the ground. There was no evidence impacting the other considerations under that section;

(b) the gum tree is located a distance away from the boundary, but some of its branches overhang the Applicants' property causing a safety risk if they were to fall;

(c) the mulberry tree grows to a height more than 2.5 metres and its branches overhang the Applicants' property by more than 500mm;

(d) the bottle brush trees grow to a height more than 2.5 metres and its branches overhang the Applicants' property by more than 500mm.

[15] In terms of s 74 of the ND Act, there is nothing to suggest that things apart from the trees which are the subject of this proceeding have contributed to or are contributing to the damage and the future likely damage identified as being caused by those trees. The Applicants identified that they have tried to resolve these issues with the Respondents over a number of years, but the Respondents have done nothing to prevent or rectify the damage or likelihood of damage that has been identified. Indeed, the Applicants say that their complaints have resulted in the Respondents planting more trees along the shared boundary.

[16] On the basis of the material filed by the Applicants and the submissions that were made at the hearing, I find that:

(a) the Applicants and the Respondents are neighbours;

(b) the trees which are the subject of the Application are on land recorded in the freehold land register and that land is not more than 4 hectares, nor is it rural land;

(c) the Respondents are the "tree-keepers" of the trees which are the subject of this Application;

(d) the Applicants have attempted to resolve the dispute with the Respondents over a number of years but to no avail;

(e) the Applicants have attempted to resolve through their local government but to no avail;

(f) the Applicants' land is affected by the trees because:

(i) all of the trees which are the subject of this Application are more than 2500mm in height and have branches which overhang the Applicants' land by more than 500mm;

(ii) the gum tree has caused damage to property on the Applicants' land, namely a panel which sits within the swimming pool enclosure in order to comply with swimming pool fencing regulations, such damage occurring when a large branch fell in December 2023;

(iii) the gum tree poses a risk of serious injury occurring within the next 12 months if a branch overhanging the Applicants' land falls;

(iv) the poinciana tree has damaged storm water pipes on the Applicants' land;

(v) the poinciana tree poses a risk of serious injury occurring within the next 12 months because some of its roots sit above the ground on the Applicants' land causing a tripping hazard; and

(vi) each of the trees has caused the Applicants' substantial, ongoing and unreasonable interference with their use and enjoyment of their land including by clogging of the swimming pool filter.

(g) The Respondents have not been complying with their obligations under s 52 of the ND Act because each of the trees which are the subject of the Application have branches that overhang the Applicants' land by more than 500mm and the Respondents have refused to remedy that situation, indeed the Respondents have exacerbated the problems by planting more trees that have grown to a height of more than 2500mm and have branches which overhang the Applicants' land by more than 500mm.

[17] I see no option but for the removal of the poinciana tree.

[18] I am satisfied that it is reasonably necessary to:

(a) remove any gum tree branches that overhang the Applicants' property by more than 500mm; and

(b) annually trim or prune the mulberry and bottle brush trees and any new trees that might be planted by the Respondents within 3m of the shared fenceline, in November of each year, so that they no longer overhang the Applicants' property.

(c) serious injury to a person; or

(d) serious damage to property on the Applicants' land; or

(e) substantial, ongoing and unreasonable interference with the Applicants' use and enjoyment of their land.

[19] The Applicants expressed concern about the likelihood that the Respondents will not comply with any orders made in relation to the trees, but in that regard I note that s 77 of the ND Act provides a penalty for non-compliance with the orders made by the Tribunal:

A person must not fail to comply with a requirement imposed on the person by an order under this chapter unless the person has a reasonable excuse.

Maximum penalty - 1,000 penalty units.

1. Within 90 days of the date of these orders, the Respondents are, at their own cost, to arrange for an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3 to:

(a) remove:

(i) the poinciana tree;

(ii) any branch of the gum tree which currently overhangs the Applicants' property by more than 500mm;

(b) trim or prune the mulberry tree and the bottle brush trees back to the dividing fenceline.

1. In November of each year, the Respondents are, at their own cost, to arrange for an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3 to:

(a) remove any branch of the gum tree which overhangs the Applicants' property by more than 500mm:

(b) trim or prune the mulberry tree, the bottle brush trees and any newly planted trees back to the dividing fenceline.

1. The Respondents are to give the Applicants not less than seven (7) days notice in writing of the arborist's intention to attend and remove the poinciana tree and any tree branch required by these orders_._ The Applicants must not unreasonably refuse access.
2. If the Respondents fail to undertake any of the work required by these orders, ('Incomplete Works') then the Applicants shall be entitled to undertake any of the Incomplete Works in accordance with these orders and their selected arborist shall be entitled to enter the Respondents' land and carry out any of the Incomplete Work subject to the Applicants giving seven (7) days written notice of that intention to the Respondents.
3. If the Respondents undertake all the outstanding Incomplete Work prior to the seven (7) days written notice period expiring, the Applicants' entitlement to enter the Respondents' land is extinguished.
4. The costs incurred by the Applicants engaging an arborist to undertake any of the Incomplete Work in default of the Respondents doing that work, including any cancellation fee in the event of the Respondents undertaking the work themselves more than seven (7) days after receiving notice, shall be recoverable from the Respondents as a debt without further notice being required to be given.