Cook and Anor v Simmons [2026] QCAT 264

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cook and Anor v Simmons [2026] QCAT 264 PARTIES: MARK COOK and LISA SIMKIN (applicants) v THOMAS SIMMONS (respondent) APPLICATION NO: NDR105-25 MATTER TYPE: Other civil dispute matters DELIVERED ON: 3 June 2026 HEARING DATES: 29 May 2026 HEARD AT: Maroochydore DECISION OF: Member Roney KC ORDERS: 1. Upon the undertakings of the respondent to the Tribunal to continue to conduct maintenance on the stand of golden cane palms on the boundary line between the applicants’ and the respondent’s properties and to cut any fronds over hanging the boundary line, and to maintain the fibrous roots of the palms so that they did not interfere with the fence or cause any damage to the applicants’ property, the application filed 28 April 2025 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is dismissed. 2. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made including to enforce the undertakings given by the respondent. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – SEVERE OBSTRUCTION OF A VIEW-whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious -- 1 of 8 -- 2 injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondent’s trees be removed – orders of– whether to accept undertakings from a tree keeper to maintain trees into the future 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 for Elron Court - CTS2566 v Doyle [2023] QCAT 279 Bose v Weir [2020] QCATA 7 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225 Robertson v Darvas [2016] QCAT 136 Smith v Khanna [2024] QCAT Thomsen v White [2012] QCAT 381 Van Bovene v Gay [2024] QCAT 319 Vecchio v Papavasiliou [2015] QCAT 70 Young v Salmon [2016] QCAT 508 APPEARANCES & REPRESENTATION: The Applicants were self-represented The Respondent was self-represented REASONS FOR DECISION [1] This is an application for a tree dispute filed on 28 April 2025 and which concerns one or two stands of golden cane palms, which are growing adjacent to the boundary between the applicants’ property at Pembroke Avenue, Pelican waters and that of the respondent's property. The application was brought under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). Liza Simkin was made a co- applicant in the proceeding by consent at the hearing on 29 May 2026. [2] The applicants purchased 54 Pembroke Ave, Pelican Waters in July 2022.The respondent is at 56 Pembroke Ave, Pelican Waters. [3] In 2024 the male applicant said to the respondent that he should do something about the Golden Cane Palms on his side of the fence, as they are pushing the fence over on their side and he would help cut them down and take the rubbish to the dump. Mr. Simmons was agreeable at the time, but no date was organized to complete the task. Since that conversation the male applicant has been cleaning up golden cane debris from his palms, which included palm fronds, palm seeds and bat dropping from eating the seeds.4. About four months ago he approached Mr. Simmons over the fence and said "when are we going to do the palms as they are pushing the fence over and damaging our side. The roots are under the concrete near our sewerage waste pipe, and they need to be cut back". Mr. Simmons response was to say “no, they have been here for l5 years they can stay another 15 years, not doing anything." -- 2 of 8 -- 3 [4] On March 25, 2025 he was walking past the fence and saw Mr. Simmons, and asked him "what are you going to do about the palms?". Mr. Simmons response was "Nothing!”. He then said, "you don't mind if I chop your palms on my side of the fence line?". Mr Simmons response was "you touch my palms, I will have the police here immediately!". Unfortunately, the conversation declined into name calling from both sides. [5] The applicants have a common law right of abatement, which is specifically preserved by section 60 of the ND Act. [6] The application sought orders for the entire removal of the two stands of palms and for the stump to be ground down effectively, resulting in the entire removal of the palms and their trunks and in effect to destroy the trees, permanently. This was said to be justified, because at the time of the application, some of the stems were pushing the fence out of alignment and the evidence of the hearing was that this had occurred in one or two locations and pushed the fence out of alignment by some 4 cm. The exact height of that stand of palms, is not identified in the material. [7] There was also evidence with the original application that the roots were going under the concrete slab or pavement which is immediately adjacent to the fence on the applicants’ side and was near sewage and stormwater pipes. [8] Neither party obtained any assistance from an arborist or an engineer or builder, or any other person with expertise in relation to whether any damage had been or would be caused to sewage or storm water lines or for that matter to any concrete path or other improvement on the applicants’ property. [9] The respondent opposed any orders in relation to either of those issues, suggesting that he had periodically maintained the palms in that area and would continue to do so [10] The applicants originally proposed to obtain the services of an arborist however, the respondent would not join in the cost of that, which the Tribunal was told was estimated as being likely to cost some $900. The applicants believed it would be more. The relevant provisions of the ND Act [11] Under S 66 of the ND Act the tribunal has broad powers to make an order it considers appropriate about a tree to: (i) prevent serious injury to any person; (ii) remedy, restrain or prevent serious damage to the Applicants’ land or any property (iii) remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicants’ use and enjoyment of the neighbour’s land. [12] What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.1 1 Hewitt & Hewitt v BCC & Gorman [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 -- 3 of 8 -- 4 [13] 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. [14] The ND Act s 72. recognises the importance of trees in residential 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 to amenity the trees make to the Respondents’ land including their contribution to privacy and protection from noise2. [15] I am satisfied that the Applicants have met the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act in that they have made reasonable efforts to resolve this dispute prior to commencing this proceeding. [16] QCAT has jurisdiction 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 a tree’ (s 61 ND Act) and the ND Act grants QCAT jurisdiction to ‘make the order it considers appropriate in relation to a tree affecting the neighbour’s land… to remedy… serious damage to the neighbour’s land or any property on the neighbour’s land’ (s 66(2)(b)(i)). [17] QCAT has jurisdiction 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 a tree’ (s 61 ND Act). That part grants QCAT jurisdiction to ‘make the order it considers appropriate in relation to a tree affecting the neighbour’s land… to remedy… serious damage to the neighbour’s land or any property on the neighbour’s land’ (s 66(2)(b)(i)) and ‘without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following – (f) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land’ (s 66(5) ND Act). [18] Relevantly to this claim is that ‘A tree-keeper is responsible for the proper care and maintenance of the tree-keepers’ trees’ (s 41(1) of the DF&T Act) and under s ‘52(2) “A tree-keeper is responsible for ensuring that the tree does not cause— (a) serious injury to a person; or 304, [22] to [26] (Judicial Member Dodds); Hoy v Fox & Anor [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). 2 ND Act, s 73(1)(g). -- 4 of 8 -- 5 (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’ (3) This section does not create a civil cause of action based on a breach of a tree-keeper’s responsibilities. [19] The ND Act contains the following relevant definitions; Tree – ‘any plant resembling a tree inform and size’ and includes ’a stump rooted in the land’ (s 45 of the DF&T Act) ‘Tree keeper’ - if the land on which the tree is situate is a lot recorded in the freehold land register under the Land Title Act 1994 – the registered owner of the lot under that Act’ (s 46(1)(a)) of the DF&T Act) ‘Land is affected by a tree’ – when… the tree has caused… serious damage to the land or any property on the land…or... ongoing unreasonable interference’ (s 46 of the DF&T Act) [20] Neighbour of Tree keeper – if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994… a registered owner of the lot’ (s 49(1)(a)(i) of the DF&T Act). [21] 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; [22] The applicants bear the onus of establishing on the balance of probabilities their 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”. [23] 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. [24] Section 66 of the ND Act provides as follows: 66 Orders QCAT may make -- 5 of 8 -- 6 QCAT 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 Disposition [25] That applicants presented little if any objective evidence of any damage having been caused by the palm trees and in particular, no evidence of damage being caused by the intrusion of roots onto their property. There is some evidence of roots protruding between their pathway and the metal fence panels, but they are above ground and demonstrated no damage to the applicants’ property. [26] The applicants also originally sought an order that the respondent to pay for the cost to rectify the boundary fence due to what they said was the damage caused by the palm trees. However, they obtained no evidence to quantify what it would cost to straighten the fence. [27] In any event, during the course of the hearing, it became apparent that the applicants had recently discovered through the use of a surveyor, that the dividing fence, which was constructed by the respondent, had been mostly, if not entirely, built across the boundary onto the applicants’ land and that in due course, they would be requiring that to be rectified. No present application is before the Tribunal in relation to that fence. [28] In those circumstances, it would be rather pointless to order that whatever had happened to the boundary fence caused by these palms be the subject of an order to straighten it when the applicants really want the fence relocated in due course. They therefore did not press for such an order for a payment for the cost to rectify the boundary fence. [29] The issues which fall to be determined here therefore were relatively narrow, although the material filed in the tribunal showed a history of animosity and dispute about a wide range of matters, and showed a breakdown in the relationship between the parties as neighbours. On 28 April 2026 there was a Magistrates Court order that the respondent must not threaten to assault or do any bodily injury to the applicants or any person under the care or charge of the applicants or threaten to procure any other person to assault or to do bodily injury to the applicants or any person under the care or charge of the applicants or threaten to damage any property of the applicants or threaten to procure any other person to destroy or damage any property of the applicants. There was an order that the respondent keep the peace and be of good behaviour for a period of 12 months from that date. [30] After the application was filed, the respondent took it upon himself to do work to the trees and in his statement in response to the complaint dated 15 May 2025, he said and confirmed in his evidence at the hearing that in May 2025, all of the palm tree trunks were removed to the extent that they were overhanging onto the applicants’ property, and the closest remaining trunk was half a metre from the fence line. -- 6 of 8 -- 7 [31] The respondent said, and I accept that the palms were planted in a raised bed, and they are surface rooted and form a fibrous root structure. He said, and I accept that in May 2025 he removed all of the roots that were affecting the fence panels and used a mechanical cutting device to cut through the soil to a depth of approximately 20 centimetres below the base of the fence so that no roots were growing under the fence and no lifting of the fence has occurred since. [32] The applicants acknowledge that this work was done, but complained that it was only done because they filed their application and they point to photographs, taken the day before the hearing, that show that fronds are still falling into their property and loose fronds or stalky material is littering the artificial turfed pathway between their house and the fence. I do not regard what appears in those photographs as anything significant or anything beyond what might be encountered in any neighbourhood from trees growing in a neighbourhood, after storms or wind. [33] Those photographs also show that some of the fronds on the seven or eight standing trunks are again growing over the boundary line. However, there is no evidence that this is causing any or interference with views or shade or causing any physical damage to the applicants’ property. [34] Their concern is really anticipatory, in that they are concerned that if further maintenance is not provided, that there will be damage eventually by the roots or the stems. [35] In the end, the matter is ultimately resolved in my view by the fact that the respondent gave undertakings to the Tribunal, which are recorded in these reasons, to continue to conduct maintenance on the stand of golden cane palms on the boundary line between the applicants’ and the respondent’s properties in question and specifically, undertook to cut any fronds over hanging the boundary line. He also undertook to maintain the fibrous roots so that they did not interfere with the fence or cause any damage to the applicants’ property. [36] Despite the giving of these undertakings which I accept and record as the foundation for this decision, the applicants still insisted that auto should be made for the removal of the palms and for the stump to be ground out. Undertakings may be accepted as a basis for dismissal of these applications; Body Corporate for Elron Court - CTS2566 v Doyle [2023] QCAT 279 [37] In my view, in light of the undertakings and the fact that the respondent has been seen to be prepared to do work, to resolve the effects of the palms on his land those undertakings would be accepted as resolving the issue. [38] Even if I had been persuaded that it was serious damage or amounted to on-going and unreasonable interference with the applicant’s use and enjoyment of its land which was substantial, it does not follow that the tree must now be removed. Under S 66 of the ND Act the Tribunal has broad powers to make an order it considers appropriate about a tree to remedy a situation where that situation was held to exist. There are other remedies available to deal with that interference or potential further interference in the future [39] I am not satisfied that removal of the tree is required or desirable to remedy, restrain or prevent serious damage to the Applicant’s land or any property. Nor am I satisfied -- 7 of 8 -- 8 that removal of the tree is required or desirable to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of its land. [40] I do not consider it otherwise appropriate to order the removal of the palms simply because the applicants are concerned that these undertakings might not be met or because they are concerned that at some time in the future, there may be damage caused by the roots. [41] On the undertakings given, and which are enforceable and given on that basis, I dismiss the application. [42] The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made including to enforce the undertakings given by the respondent. -- 8 of 8 --