Savic v Colley [2026] QCAT 171

[1] Goran and Elizabeth Savic ('the Applicants') are the registered owners and occupiers of the house and land at 18 Rosemount Court, Mooroobool, a suburb within the Cairns Regional Council.

[2] Paul and Katrina Colley ('the Respondents') live at 47 Robson Street, Mooroobool, and are adjoining neighbours of the Applicants.

[3] On 7 November 2022 the Applicants commenced an 'Application for a tree dispute' pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('the Act'), seeking orders from the Tribunal in relation to a Mock Orange hedge[1] located entirely within the boundary of the Respondents' property.

[4] The Applicant makes various complaints about the Respondents' hedge for purposes of submitting that 18 Rosemount Court now qualifies as 'land affected' by the hedge, for purposes of section 46 of the Act. Relevantly, section 46 of the Act provides:

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 -

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

(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 -

(i) adjoins the land on which the tree is situated; or

(ii) would adjoin the land on which the tree is situated if it were not separated by a road.

[5] Pursuant to section 41 of the Act it is the 'tree-keeper' who is responsible for the proper care and maintenance of the tree-keeper's tree. Section 48(1)(a) of the Act provides that it is the registered owners of the land on which the tree (or trees) is situated who qualifies as the tree-keeper.

[6] 18 Rosemount Court is land more properly described as Lot 205 on Registered Plan 851449 within the Cairns Regional Council. There is an easement in favour of the Cairns Council marked on the title reference for Lot 205. The adjoining property at 47 Robson Street is land more properly described as Lot 219 on Registered Plan 861044 within the Cairns Regional Council.

[7] Topographically, both 18 Rosemount Court and 47 Robson Street are sloping hillside properties. 47 Robson Street is situated immediately to the North and slightly to the East of 18 Rosemount Court, with the two properties sharing a rear boundary of approximately 7.2 metres. The House at 47 Robson Street is considerably lower down the slope than is the house at 18 Rosemount Court, as the land in this locality falls sharply from South to North. At the same time, the land also falls from West to East, thus necessitating a drainage easement, approximately 3 metres wide, along the rear boundary of all the properties along this section of Rosemount Court. The boundary fence between the two properties is immediately adjacent to this drainage easement.

[8] According to the Respondents, in about 2007, a stand of up to about 35 palm trees along their rear (Southern) boundary was removed by them, by reason that the palm trees had been dropping very large quantities of palm fronds and other detritus into the drainage easement; thus blocking overland flows, and contributing to rat and snake infestations.

[9] Once the palm trees had been removed, advice was obtained by the Respondents from a horticulturalist, regarding what should be planted instead of the removed palms. The horticulturalist recommended that the Respondents should replace the palms with a 'Mock Orange' hedge (Murraya Paniculata). Accordingly, the Mock Orange hedge that is now the subject of these proceedings was planted by the Respondents, in about 2008.

[10] The Applicants did not purchase and move into their home at 18 Rosemount Court until October 2021. Real estate 'for sale' photographs of the view obtained from 18 Rosemount Court that were taken in September 2021 reveal that the Mock Orange hedge was by that stage already very well-established, such as to qualify as a prominent feature on the Applicants' Northern boundary as at the date of their acquiring the property.

[11] In the Application for a tree dispute filed in the Tribunal on 7 November 2022, the Applicants complain that:

(a) Prior to their having purchased 18 Rosemount Court the Respondents had agreed to trimming the Mock Orange hedge by 1 to 1.5 metres, yet the Respondents did not do that;

(b) Although the hedge was in situ at the time of their purchase, there was 'no interference' with their view at that time. Yet, as at the date of the filing of their QCAT application, the view had been "totally obstructed", with the hedge now standing approximately 6 metres in height, such that it "devalues their property";

(c) Every time there is any rain, the hedge blooms into flower, and it is very heavily perfumed. The Applicants claim that this triggers symptoms of asthma, hay fever, and other allergies within members of their family, thus reducing their use and enjoyment of the amenity of their own property;

[12] The Applicants now seek orders from the Tribunal requiring the Respondents to trim and maintain the height of the hedge down to 3 metres. This is a height that is considerably below the height of the hedge as at the date of the Applicants purchasing 18 Rosemount Court.

[13] In their various responses to the Application, the Respondents submit:

(a) The Applicants' property is situated approximately 7 metres higher up the slope than is their own property, such that the Applicants' home towers over their yard. Without a hedge for privacy, the Savic deck and entertainment area looks directly down into the Respondents' backyard, pool and entertainment area, '[thus] affording no privacy for our grandchildren and family while in the swimming pool'.

(b) The hedge performs an important role in screening unsightly views of the under croft and supporting structures of the pool decks situated at both number 16, and at number 18 Rosemount Court.

(c) The hedge does not overhang the property boundary and does not unreasonably interfere with either the use or enjoyment of the Applicants' pool and deck.

(d) It is incorrect for the Applicants to now assert that the hedge creates a 'severe' obstruction of their views, as the Applicants' view remains essentially the same as that which had existed as at the date of their purchase of 18 Rosemount Court in 2021.

(e) The hedge/tree privacy barrier is normal and is typical to all the houses along the entire length of the drainage easement separating the properties on Robson Street from those that are higher up the hill, on Rosemount Court.

(f) No agreement had ever been reached for the Respondents to trim the hedge by between 1 and 1.5 metres, as now contended by the Applicants. The Respondents recall that the Applicants did not even raise this as a possibility until after the completion of their purchase of the house at 18 Rosemount Court.

(g) The Applicants have always regularly maintained the hedge. The hedge was reduced in height by approximately 1 metre on 21 December 2022 to a height that is parallel with the top of the Respondents' pool fence and to a height that is lower than that shown in the real estate photographs taken in September 2021 of the original view from 18 Rosemount Court. At the time of their last pruning of the hedge, Goran Savic had expressed that he was satisfied with the height, which was level with the top of his pool fence.

(h) Pruning of the hedge down to the height now requested by the Applicants would be 'intolerable' for the Respondents, as the result would be to transform the Applicants' pool into a 'viewing platform straight into the Respondents' back garden, swimming pool, living area, ground floor living area and top floor living area'.

[14] An expert tree assessor, Mr Pieter (Willem) Taylor, was appointed by the Tribunal.

[15] Mr Taylor attended the site on 10 June 2023, and submitted a report to the Tribunal which was received by the Tribunal registry on 21 June 2023. Mr Taylor also gave evidence, by means of video-link, during the Tribunal hearing on 2 March 2026.

[16] In his report, Mr Taylor confirms that the hedge is comprised of Mock Orange plants (Murraya paniculata), a species described as commonly used for hedging throughout the greater Cairns municipality, and in widespread usage throughout the Mooroobool locality. Mr Taylor noted the hedge to have an important role to play in terms of land stabilisation: 'the hedge in question's root systems would be helping to maintain and help prevent erosion of the sol in the spoon drain. This area is covered by the potential landslip overlay as per the Cairns Regional Council CairnsPlan 2016 Planning Scheme Property report'.[2]

[17] Mr Taylor observed the height of the hedge as being generally level, yet that the land slopes downwards, such that the hedge was approximately 5 metres in height at its Westernmost end, and approximately 5.6 metres in height at its Easternmost end. Mr Taylor observed the hedge to be entirely within the property boundary at 47 Robson Street, and that it had been maintained in such a way to keep the hedge from reaching across the boundary to the South and into 18 Rosemount Court. The height of a prior pruning was also readily apparent to Mr Taylor, and there had been subsequent regrowth above the height of that prior pruning of approximately 0.5 to 0.7 metres.

[18] To Mr Taylor's observations, and in relation to the specific issue as to whether the land at 18 Rosemount Court was land 'affected by a tree' for purposes of section 46 of the Act, Mr Taylor concluded that the Mock Orange hedge did not meet the jurisdictional threshold required by any of sections 46(a)(i), 46(a)(ii)(A), or 46(a)(ii)(B); yet the hedge was likely to cause substantial, ongoing and unreasonable interference with the Applicants' use and enjoyment of their land,[3] within the next 12 months, in consequence of further growth in height.

[19] In his oral evidence when before the Tribunal, Mr Taylor confirmed that any emerging adverse impact would be solely in consequence of a potential loss of views from the Applicants' property, as the hedge continued to grow. Mr Taylor was entirely dismissive of the Applicants' complaints about the hedge exacerbating symptoms of allergies, noting this would require medical evidence that Murraya paniculata was the specific causal allergen. Moreover, given that Mock Orange was grown endemically throughout the area, removal of this specific hedge would not serve to alleviate any problem for persons with allergies.

[20] In his report, and amongst other things, Mr Taylor made the following observations regarding the loss of views from 18 Rosemount Court:

The view to the North-east is of the larger Cairns city area and the ocean is a sliver of water on the horizon. In the distance, on the day of the assessment, the ocean constituted less than 1cm of the view from the horizon to the nearest buildings. The bulk of the ground view is the crowns of the city's trees as seen at an angle, obscuring the majority of rooves, thus forming a landscape of greenery for the most part.

Had the hedge been pruned to the previous level, the view would show the sliver of ocean, but the rest of the view would be of tree canopies of the same colour as the hedge, eg: green foliage to the ocean.

The previous pruning of the hedge seemed to have been done to an appropriate height to preserve both the privacy of the respondents' property and still retain the views towards the ocean and overlooking the urban forest canopy. The problem with topping and pruning such hedges is that the work encourages regrowth and therefore requires regular maintenance to keep the height in check. This could be a costly exercise to maintain into the future as it is not easily accessible pruning.

One consideration is that the vegetation was already in place and well established, by the time the applicant purchased the land. The future loss of views was anticipated by the applicant and therefore expected.

[21] The Tribunal accepts the entirety of the evidence given by Mr Taylor, and notes there to be absolutely no evidence whatsoever to substantiate the assertion by the Applicants that the Mock Orange hedge contributes to allergy symptoms.

[22] The Tribunal now accepts that the Respondents raise entirely legitimate concerns regarding the importance of the hedge for the maintenance of their own privacy. In the theoretical event that the hedge was to be ordered reduced to the height now sought by the Applicants, the Tribunal considers that the competing rights and interests of the Respondents would be unreasonably ignored, such that the Tribunal is not prepared to make an order in those terms.

[23] Although Mr Taylor opines (and the Tribunal accepts) that the Applicants' land is affected by the hedge for purposes of section 46(a)(ii)(C) of the Act, the Tribunal considers that, because of section 66(3)(b)(ii) of the Act, the question of any substantial, ongoing and unreasonable interference with the Applicants' view is a matter that can only be assessed by reference to the extent of the view enjoyed by the Applicants as at the time of their original purchase of the property in October 2021. At that time, the fact of the existence of the prominent Mock Orange hedge on the Northern boundary of the property at 18 Rosemount Court should have been obvious to the Applicants, and they cannot expect an entitlement to a view that is better than that which existed when they took possession of their property.

[24] Having examined and considered the real estate photographs taken in September 2021, the Tribunal determines that the views of the Cairns skyline enjoyed by the Applicants in October 2021 will be reinstated if the Mock Orange hedge is required to be maintained at a height that is roughly parallel with the top of the current handrail on the pool deck at 18 Rosemount Court.

[25] The Tribunal will order a regime of annual pruning. Initially, within 28 days of the date of these orders, the Mock Orange hedge should be pruned by the Respondents to a height that is parallel with the top of the handrail on the deck of 18 Rosemount Court ('the ordered height'). Thereafter, the Respondents will be required to prune or otherwise maintain the Mock Orange hedge once every 12 months, in order to bring the hedge back to the ordered height. If the Respondents require access to prune the hedge from the Applicants' side of the boundary fence, the Applicants are to do all things necessary to provide that access on the giving of seven-days' notice by the Respondents of their intention to enter for purposes of pruning.

[26] Pursuant to the powers conferred on the Tribunal by s 66(2) of the Act, the Tribunal orders as follows:

1. Within 28 days of the date of these orders the Mock Orange hedge should be pruned by the Respondents at their sole expense to a height that is parallel with the top of the handrail on the deck of 18 Rosemount Court ('the ordered height').
2. The Respondents are required to thereafter prune or otherwise maintain the Mock Orange hedge once every 12 months, so as to bring the hedge back to the ordered height.
3. The Applicants are to do all things necessary to provide the Respondents with any necessary access to the Mock Orange hedge from the Applicants' property, upon the giving of seven-days' notice of that access requirement by the Respondents.

[1] For purposes of the jurisdiction conferred on the Tribunal by way of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), 'any woody perennial plant' meets the definition of a tree: s 45.