Wilksch v Jonkers [2026] QCAT 152

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Belcher v Sullivan [2013] QCATA 304

Body Corporate - Highlands Vista v Taylor [2018] QCAT 244

Bunyard v McManus [2013] QCAT 258

Cacopardo v Woolcock [2017] QCAT 214

Hewitt v Brisbane City Council [2018] QCAT 282

Hoy v Fox [2013] QCAT 728

Laing v Kokkinos (No.2) [2013] QCATA 247

Street v Smith [2018] QCAT 193

Thomsen v White [2012] QCAT 381

Watson-Brown v Heaton [2014] QCAT 346

Webb v Dwyer & Clarke [2014] QCAT 219

[1] The applicant and the respondent own adjoining suburban properties in Kiels Mountain on the Sunshine Coast. The applicant's property at 386 Kiel Mountain Road, which is in a semi-rural area, is his usual residence. His property shares a common boundary with the respondent tree-keeper's property at 398 Kiel Mountain Road and they are not presently separated by a fence structure in the area where the trees which are the subject of the dispute are to be found.

[2] The applicant's house is only a few metres from the common boundary line. The respondent's house is about 100 metres away from the trees in question and cannot be seen from her house. The respondent and her husband long ago planted what is now a large stand of trees near the boundary line. The respondent gave evidence that she had lived at this address for 44 years and that this stand of trees was planted in the 1990s.

[3] In April 2025, the applicant filed an application ('Application for a tree dispute') under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('ND Act') seeking the removal of some 20 of what is part of that large stand of trees growing adjacent to the boundary line of the two properties but in the close general vicinity of the applicant's residence, but within the boundary of the respondent's property. The trees are all over 2.5 metres tall. There is no accurate description in the material describing the precise location of this stand of trees by survey data or otherwise.

[4] This Tribunal ordered that the publication of aspects of the respondent's applications for miscellaneous matters filed 13 January be prohibited. No aspect of those applications is referenced in these reasons.

What is the applicant's evidence and approach to the application?

[5] The applicant gave evidence, which was not substantially challenged except for the respondent's suggestions that he has not maintained his property, to the following effect.

[6] He said, and I accept, that the trees cause significant blockage of sunlight into his property and the leaf litter and other material coming across the boundary are causing mould and mildew to develop. He said, and I accept, that there have been branches dropping onto his roof as recently as in the last weeks and that happens almost weekly. Some of these branches weigh up to 2 kilograms. I can infer that a branch of such weight is very likely to cause a risk of injury to a person were it to strike them. The gutters on his house are constantly being filled with tree mulch despite their being gutter guard on them and they overflow, and have started to detach from the facia of his house. Moisture or water has been getting behind the gutters and causing sealing damage inside his house. The Colourbond roof is suffering discoloration and evidence of rust caused by the leaf litter material lying on them. The pavement area at the back of his property, which adjoins this stand of trees, is inundated with leaf, sticks and foliage, and is consistently slippery under foot. Falling debris from the trees has already caused damage, including destroying the rear windscreen of his motor vehicle. This occurred three months ago.

[7] The respondent turned up about an hour into the hearing and said that she was in financial hardship and could not only not pay for the removal of any of trees in this stand, but also could not even afford to engage an arborist to advise as to what should occur.

[8] The applicant then revised what orders he sought, and ultimately asked that he be permitted to access the respondent's land with his contractors and be permitted to remove all of the 20 or so trees to within 4 metres of the boundary line and in respect of which he undertook to meet the cost. Those works would, it was estimated would cost some $10,000.

[9] Having regard to the responsibilities which fall on the respondent as the tree-keeper, this approach by the applicant seems to me to be eminently reasonable, verging on generous, but self-evidently, it is the only way that a result is likely to be achieved which could ameliorate the risk and damage associated with the presence of this stand of trees.

[10] The applicant obtained a report from an arborist, Mr Kurt Brown ('the Arborist report'). That report was dated 10 October 2025.The arborist gave additional evidence orally and was cross-examined.

[11] Although the Arborist report was not particularly comprehensive, it did reveal that he was well qualified and sufficiently experienced so as to provide an opinion about the character of this stand of trees and what potential solutions there were to the damage that it was causing as well as the risk of further damage.

[12] He has more than 30 years' experience both as a consultant and as an AQF level 3 arboculture graduate. He is a member of numerous professional organisations associated with arboculture. He identified this stand of trees as juvenile to semi mature to mature trees, both native and non-native, all growing phototrophically, i.e. toward the light.

What is the respondent's approach to the application?

[13] Just before the hearing of the matter listed for 13 March 2026 the respondent filed an application asking that the hearing be adjourned to a date to be fixed by the Tribunal. That, she said, was to allow the respondent time to obtain and file further evidence arising from the ongoing Council investigation and what she said was a formal complaint by the Sunshine Coast Regional Council into unauthorised vegetation clearing, operational works (including excavation damaging tree roots on or near the boundary of respondent's property), and potential breaches of development approvals and the respondent's Right to Information application for all related Council documents and correspondence. She submitted that those matters had a direct bearing on the condition, health, structural integrity and any pre-existing damage to the trees that are the subject of the current application. I refused the application to adjourn.

[14] She also filed a doctor's report that argued for an adjournment for health reasons. I refused the adjournment on this basis as well and gave reasons separately. The hearing proceeded with both parties present. The respondent was perfectly able to comprehend the issues in dispute and to present her case in an appropriate and coherent way.

[15] The respondent asserted on numerous occasions at the hearing that there was some kind of vegetation protection order over these trees, but there is no independent or reliable evidence that this is so. The applicant has said the trees are in a Native Vegetation Area and their removal may require consent of Council.

[16] There has been no intervention by the local council in this hearing, which is clearly on notice that it is on foot. Even were there such an order, it does not override any order that this Tribunal might make.

[17] The respondent thought it significant that the applicant was a more recent resident to this area, implying that he should just accept whatever the status quo was. She made unfounded assertions that he had not been properly maintaining his property and that somehow or other the bringing of this application was malicious and frivolous. I reject those assertions as entirely without foundation or merit.

[18] The respondent changed her position several times during the course of the progress of the matter, and even during the hearing, but ultimately it seems that her position is that she agrees that some of what she calls the "dangerous trees" should be removed, but not all of them, and that the "native healthy trees" as she calls them, could be saved by pruning.

[19] As a corollary to those contentions, she asserted that there should be some further independent arborist's report about what should happen to the trees.

[20] I find that the Arborist report which has already been obtained and indeed, the evidence of the arborist Mr Brown, which was given at the hearing, demonstrates that there has already been an independent analysis of what should occur.

[21] One of her consistent themes was to assert that even if this matter was not adjourned to allow an investigation, that somehow or other the local council might be interested in investigating whether there had been contraventions of operational work approvals on the applicant's land, and that this prospect should have some bearing on the outcome hearing. She also suggested that her own roof was leaky and inadequate and, with that, that the applicant's roof, in excess of 20 years old despite being damaged by the debris from these trees, was something that he just needed to live with. She asserted that the applicant was not maintaining the gutters on his roof and that it was necessary that he do so regularly to remove leaves from the gutters. I reject to those contentions. I also find that the applicant provided appropriate maintenance to both the roof and gutters of his property.

[22] It is apparent that the respondent has some kind of sentimental attachment to this stand of trees, which if removed to the extent of removing all within 4 metres of the boundary line, would substantially remove the stand although there would be nothing to prevent more appropriate vegetation to be replanted, and indeed, the arborist has noted this.

[23] As to the assertion that his conduct here has some malice or is frivolous, it seems to me that not only is there not the slightest shred of evidence of that, but I find that as a precursor to this proceeding being commenced there had, in fact, been some kind of resolution of the dispute about what should happen to these trees and as part of those arrangements, which included some work being done at the applicant's cost to the respondent's driveway, the respondent agreed to permit him to have the trees within 4 metres of the boundary line removed and for there to be some sort of replanting. It was she that repudiated that agreement.

[24] Under s 46 of the ND Act, land is taken to be affected by a tree only in limited circumstances. Accordingly, the land is only tree-affected if it satisfies one of the following, namely:

(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;

[25] The applicant bears the onus of establishing on the balance of probabilities his entitlement to orders under the ND Act. The Tribunal has broad powers to hear and decide "...any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree".[1]

[26] The Arborist report concludes, and I accept, that branches from these trees extend over the applicant's land and thus satisfy the definition in s 46(a)(i) of the ND Act as to when land is affected, that is in this case because the "branches from the tree overhang the land".

[27] The ND Act defines "tree" to mean any woody perennial plant or any plant resembling a tree in form and size. This definition has been held in case law to include roots and stumps rooted in land and a dead tree.[2]

[28] Land is "affected by a tree" if the tree has caused 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, and the land adjoins the land on which the tree is situated. A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.[3]

[29] Under s 66 of the ND Act the Tribunal has broad powers to make an order it considers appropriate about a tree to:

(a) prevent serious injury to any person; or

(b) to remedy, restrain or prevent -

(ii) serious damage to the applicants' land or any property on the neighbour's land; or

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

[30] What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this Tribunal over time.[4]

[31] In Belcher v Sullivan [2013] QCATA 304, Judicial Member Dodds held:

[22] "Serious" is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as "not slight or negligible".

[23] "Substantial" also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance.

[24] Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

[32] The ND Act s 72 recognises the importance of trees in neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved. I am required to consider various matters including the contribution the trees make to the amenity of the respondent's land including their contribution to privacy and protection from noise.[5]

[33] I am satisfied that the applicant has met the relevant prerequisites set out in s 65 of the ND Act for the making of an order under s 66 of the ND Act in that he has made reasonable efforts to resolve this dispute prior to commencing this proceeding.

Relevant considerations and Arborist's evidence to the Tribunal

[34] It is common ground that the applicant's property adjoins the tree-keeper's property at the vicinity of these trees and is not presently separated by any fence structure. The applicant's land therefore meets the requirements of s 46(b)(i) of the ND Act.

[35] The base of the trees subject to this application are wholly situated on the tree-keeper's property. Therefore, the trees the subject of this application meet the provisions of s 47 of the ND Act as defined in subsection (1) as this tree dispute is wholly or mainly situated on the tree-keeper's property.

[36] As to whether the applicant's land is affected by the trees, I refer to the evidence of the applicant set out earlier, as to how these trees have affected his property. There are other matters he referred to in his written material, including bushfire risk.

[37] The arborist Mr Brown said in his oral evidence that as it stands, these trees pose a significant risk to the health of persons and property on the applicant's land and if not removed the trees are likely to fall over into that property and potentially lead to serious consequences. These trees, he says, are top heavy, tall and slender. His evidence, which I accept, is that most of these trees are growing on an angle toward the light over the boundary line into the applicant's property and they are only ever going to continue to grow like that while they remain.

[38] I find on the evidence that the trees are causing substantial, ongoing, and unreasonable interference with the applicant's use and enjoyment of his land.

[39] Sections 71 and 72 of the ND Act provide that the primary consideration is the safety of any person, but that the removal or destruction of a living tree is to be avoided.

[40] Despite cross-examination which suggested something else, I accept that the arborist Mr Brown conducted a careful examination of the relevant area and that he was able to assess what was there by going to the boundary line. At present, there is an area which has been excavated adjacent to the boundary line where a retaining wall is soon to be built.

[41] I accept his evidence that both now and also were there to be removal of the stand of trees, there is no risk to the integrity of the slope or the land on which these trees presently sit and that good hillside practices will ensure that this remains so.

[42] I accept his evidence that removal of these trees will have no negative effects on the structural integrity of the applicant's or the respondent's land or the quality of the soil itself.

[43] When it was suggested to him that an engineering report obtained by the applicant, which dealt broadly with land slip and soil subsidence, as well as water table issues suggested removal of these trees should not occur, Mr Brown identified that not only did that report not say those things, but to the extent that it broadly dealt with those topics, it was concerned with activity on the opposite side of the of the applicant's property. It did not relate to the area where these trees were to be found.

[44] The respondent suggested to him that she had been quoted some $4,000 to be provided with an arborist report, and that an independent arborist report other than his was required. He rejected this. Such a figure for a report does seem excessive but, in any event, I reject the proposition that in any way his conclusions were inadequate or incomplete or lacking objectivity.

[45] As to her suggestion that there ought be only selective removal of the trees, perhaps only those in respect of which there was an overhanging risk, with the stand to be reconsidered after 12 months when she was, she said, likely to be in better health and her finances had improved, Mr Brown said and I accept, that although he had identified in his report that at present there was a low to medium risk associated with this stand, that this risk would increase over time and that keeping these trees would present an increased and increasing risk. Since he did his report, there has been a further growth season and these trees had become an even more top heavy. In essence he was saying that there is an overhanging risk for the whole stand of trees.

[46] He suggested that replanting the area with suitable other plants would be good land management. That is a matter for the respondent to deal with if she decides to replant any of this area. She would be well advised to avoid a replanting which would lead to repetition of this very problem.

[47] I accept the evidence of the arborist that the selective removal of trees within this stand would provide an inadequate solution. It would, in effect, mean postponing the provision of a permanent solution to some later time. In the meantime, the respondent would get to wipe her hands of any responsibility, either for the cost of that selective removal now, or the maintenance of the stand of trees going forward.

[48] The alternative, which is to retain some of the trees and provide ongoing maintenance, would, he considered, not materially reduce the risk sufficiently and will be an expensive ongoing maintenance problem. I accept that evidence.

[49] To have the applicant maintain them would require authority from the respondent to have contractors go on to her property periodically to maintain them. In her conduct of this proceeding the respondent has made clear that she is very sensitive to anyone going onto her property to do any work to maintain this area without her express approval, even though she is unwilling to do any maintenance herself.

[50] In my view, there is inevitably only one solution to what presents in this scenario and that is to order that the applicant be authorised, by order of this Tribunal, to enter onto the respondent's property to remove all of the approximately 20 trees within the stand of trees growing adjacent to the boundary line of the two properties but in the close general vicinity of the applicant's residence, but within the boundary of the respondent's property, along the common boundary to a point no more than 4 metres from the boundary line.

[51] The applicant is to bear the costs of those works, including the costs of taking away the removed trees and associated debris.

[52] I will order that the applicant perform those works within 60 days of the date of this order unless for some other reason further time is required, for example, because of the unavailability of contractors or delays associated with local council permits, if any. I give the applicant leave to apply to the tribunal to extend the time for the performance of that work and for the application to be resolved on the papers. The applicant must give not less than two days' notice to the respondent that such works are about to commence before any such works are performed.

[53] I direct that the respondent do all things reasonably necessary to facilitate the performance of those works and not do any act to hinder or obstruct the performance of those works.

[54] I order that the applicant be authorised, by order of this Tribunal, to enter onto the respondent's property to remove all of the approximately 20 trees within the stand of trees growing adjacent to the boundary line of the two properties but in the close general vicinity of the applicant's residence, but within the boundary of the respondent's property, along the common boundary, to a point no more than 4 metres from the boundary line.

[55] I order that the applicant is to bear the costs of those works, including the costs of taking away the removed trees and associated debris.

[56] I order that the applicant perform those works within 60 days of the date of this order unless for some other reason further time is required, for example, because of the unavailability of contractors or delays associated with local council permits, if any.

[57] I order that the applicant give not less than two (2) days' notice that such works are about to commence to the respondent before any such works are performed.

[58] I direct that the respondent do all things reasonably necessary to facilitate the performance of those works and not do any act to hinder or obstruct the performance of those works

[59] I give the applicant leave to apply to the tribunal to extend the time for the performance of that work and for the application to be resolved on the papers.

[60] I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

[2] Watson-Brown v Heaton [2014] QCAT 346; Street v Smith [2018] QCAT 193; Cacopardo v Woolcock [2017] QCAT 214; Hewitt v Brisbane City Council [2018] QCAT 282.

[4] Hewitt v Brisbane City Council [2018] QCAT 282; a claim for $817 was not sufficient to be 'serious damage'; Bunyard v McManus [2013] QCAT 258, [23]; Belcher v Sullivan [2013] QCATA 304, [22]-[26] (Judicial Member Dodds); Hoy v Fox [2013] QCAT 728; Cacopardo v Woolcock [2017] QCAT 214 (roots); Belcher v Sullivan [2013] QCATA 304 (roots); Laing v Kokkinos (No.2) [2013] QCATA 247 (view); Thomsen v White [2012] QCAT 381 (sunlight); Body Corporate - Highlands Vista v Taylor [2018] QCAT 244 (view re body corporate and multiple units); Webb v Dwyer & Clarke [2014] QCAT 219 (vine).