Draper & Anor v Kinna & Anor [2025] QCAT 422

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Draper & Anor v Kinna & Anor [2025] QCAT 422 PARTIES: DEIRDRE DRAPER (applicant) ANTHONY COLAHAN (applicant) v ALLAN KINNA (respondent) NAVUT BUMRUNGSENA (respondent) APPLICATION NO: NDR248-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 24 October 2025 HEARING DATES: 20 October 2025 HEARD AT: Caloundra DECISION OF: Member Roney KC ORDERS: 1. The respondents shall cause the subject Tallowwood tree undergo a complete dead wood pruning procedure which includes all dead branches on the southern extent over the applicants’ property to 1 centimetre in diameter. 2. The respondents shall have the subject tree inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety and obtain advice as to whether further pruning is appropriate in the future. 3. The respondents shall not permit any live tissue to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production. 4. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – -- 1 of 9 -- 2 DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Forest Red Gum tree 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 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 respondents’ tree be removed because of concerns for their safety from falling material –where respondents had conducted annual maintenance to the tree – where the tree is a native and a very important species as a food source for native wildlife and adjacent to a conservation area 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 & Anor [2013] QCAT 728 Laing v Kokkinos (No.2) [2013] QCATA 247 Street v Smith & Rogers [2018] QCAT 193 Thomsen v White [2012] QCAT 381 Watson-Brown v Heaton & Anor [2014] QCAT 346 Webb v Dwyer & Clarke [2014] QCAT 219 APPEARANCES & REPRESENTATION: Applicants: Self-Represented Respondents: Self-represented REASONS FOR DECISION [1] The applicants and the respondents own adjoining suburban properties in Buderim north of Brisbane. The applicants’ property is at 5 Mountain Ridge Crescent and adjoins the respondent tree-keepers’ property at 3 Mountain Ridge Crescent. [2] On 14 July 2022 the applicants filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘ND Act’) for the removal of a large Eucalyptus microcorys, commonly known as Tallowwood, growing some 2.5 metres inside the boundary line of the respondents’ property. -- 2 of 9 -- 3 [3] In a statement filed later in support of the application they contended (as corrected for grammatical error) that: It has already caused serious damage to our house during the supercell storm on 17 Nov 2019, when large branches fell onto our driveway and roof. One of several large branches fell onto our roof, breaking a solid steel gutter bracket before bouncing off into our driveway. -see photo of broken bracket & branch that caused the damage and other branches that fell from this fee onto our driveway during this storm. It is very likely in future, especially during in our storm season, that falling branches will cause further damage and may go thru our roof, break a window or damage our solar panels. There is a risk of whole tree toppling over and completely destroying our house. There is a risk of seriously damaging vehicles using the driveway. A projectile (branch) falling from a height over 30 metres, could potentially go through our roof, and kill or seriously maim a person on our property. A large number of debris & branches, fall from this tree onto our roof, solar panels and driveway. This limits the use driveway for parking as there is a high risk of damaging motor vehicles whilst using our driveway. Usually, we have to wash to wash cars very early morning before the wind starts to fill in around 8 am /9am when debris starts falling out of the tree onto our drive. We seek to have the tree removed as no amount of money or paying of insurance excess/rise in premium would compensate us for a serious injury to persons damage to property including family & travel photos (pre digital photography era), original paintings, family heirlooms, a life time of worldly collections, etc. losing our home and loss of life. [4] The Form Number 52 (Response to application for a tree dispute) response was completed by the respondent "tree-keepers" in QCAT on 6 March 2023. They oppose the order for removal of the tree and take issue with claims about the source of debris in the applicants’ yard and a range of other matters. They point to the fact that they have conducted anneal maintenance on the tree using a qualified arborist for many years and would continue to do so at their own expense. They put into evidence the invoices for that work, which total more than $9,000 between 2018 and 2023. [5] The respondents obtained at their own expense a report dated 6 February 2023 from Brendan Martin, Director and Principal Consulting Arborist from Tree Solutions who had been responsible for maintenance work on the tree over a long period. He concluded that the tree was some 65 years old, |had a height of 35 metres, a canopy diameter of 18 metres, 1 one-meter diameter, and was in good condition. He concluded: Previous maintenance on the tree conducted by Tree Solutions has included dead wood removal, canopy maintenance and reduction pruning from the neighbouring property. These works have been carried out in September 2018 July 2019 July 2020 and December 2021. Care has always been taken not to over prune the tree whilst considering all safety requirements for the owners of the tree and the neighbours. There are no drainage issues as the tree is situated on a slope and all rain and excess water will run of, adequately. -- 3 of 9 -- 4 Pruning works over the last 10 years have managed the canopy so that it is only minimally over the boundary at present.' Future works can manage this issue but the tree cannot sustain anymore heavy pruning but deadwood removal will maintain safety and condition. [6] I accept the evidence as to the tree being in good condition and that the canopy was and still is only minimally over the boundary. [7] A Tribunal appointed Arborist Steven Richards did a report (‘the second arborist report’) subsequent to orders appointing him to do so. In his report following his site visit on 1 December 2023 he concluded that the tree is a mature Tallowwood Tree. It is wholly located within the respondent's property and is positioned approximately 1.8m from the dividing fence. The subject tree was estimated at being 70-80 years of age. The subject tree was said to be in good health and is mechanically robust. There was no evidence of historic limb failure visually observed with the exception of clad ptosis (natural shedding of small twigs and dead branches). The subject tree extends across the dividing fence approximately 2.5m at a height of approximately 14m above ground level. I accept his evidence in relation to those matters. [8] The second arborist report went on to say that the subject tree has been extensively pruned in an attempt to reduce both overall canopy spread and encroachment into the applicant's property. The subject tree is now marginally asymmetrical favouring the southern side. A large co-dominant leader near the base of the tree has been removed in its entirety which would have constituted upwards of 30% of the entire upper canopy prior to removal. I also accept his evidence in relation to those matters. [9] The second arborist report concluded, and I find that: The subject tree is situated on the eastern periphery of Gum Tree Drive conservation park. It is considered remnant vegetation and pre-existed the construction of the applicant's and respondent's dwellings which were built in 1988. The subject tree is native and is a very important species as a food source for native wildlife, including Koalas, Gliders, Possums, Nectar feeding birds and insects. [10] The second arborist report concluded, and I find, that pruning of the subject tree had been ongoing and at the time of inspection, the extent of live tissue removed in a short period of time had actually been excessive such that further removal of live tissue may begin to have negative consequences to overall plant health. [11] The second arborist report concluded, and I find that: A moderate amount of small dead wood (to 3cm diameter) was visually observed in the upper canopy. These dead limbs were considered to be natural redundancy due to shading out. These small pieces of deadwood are reasoned to be the primary cause of nuisance for the applicant. The subject tree was assessed as having a low likelihood of failure for both whole tree and major component parts. It is an attractive amenity addition to the surrounding landscape and is a feature component to the respondent's property. The pieces of dead wood that are shedding, although small, still gain considerable inertia in an unbroken fall. Removal of all dead wood within the -- 4 of 9 -- 5 canopy will mitigate any potential damage as well as forming a base line to determine if dead wood formation is natural or being accelerated due to over pruning and tree decline. Regular monitoring of the subject tree by a suitably qualified consultant will be able to draw conclusions as to overall tree health by having more data from a longer time frame. Currently the tree is considered to have a low likelihood of causing injury or damage. [12] Since he concluded that the small pieces of deadwood were the primary cause of the nuisance being caused to the applicants, he recommended that the subject tree undergo a complete dead wood pruning procedure. This was to include all dead branches on the southern extent over the applicants’ property to 1cm in diameter. He recommended that the tree be inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety in the current landscape and that no live tissue is to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production. [13] He does not say so, but clearly his report proceeds on the basis that removal of the tree should not occur and is unnecessary. [14] The position of the applicants was lacking in proportionality and was an unreasonable response to the difficulties that the presence of this tree presented. They were unprepared to resolve the issue for anything less than orders for the destruction of the tree. [15] The applicants were properly concerned with potential of damage to their property caused by the presence of the tree, but when carefully examined ultimately, their concerns about that were confined to circumstances in which there were severe weather events or very high winds or storm cell events. The damage that they claimed had been caused to their home over time was not corroborated by photographic evidence nor was there objective evidence of expense said to have been incurred in remedying any of that damage. [16] Although initially they gave the impression they could not and did not use their driveway generally and did not permit trades persons to park in it, it became evident by the end of the argument that, in fact, there were only a limited or narrow range of circumstances in which that was true. Generally, except in high wind conditions coming from a particular direction, the driveway was used both for washing vehicles, access and parking, albeit not directly under that tree. [17] My impression was that their evidence was often prone to overstatement and argumentativeness seen to support their contention that the tree ought to be destroyed. [18] Their evidence that a metal gutter bracket had been broken by the force of falling timber bore little scrutiny, and I was not prepared to speculate on whether damaging one gutter bracket was an outcome that led to the need to destroy this tree. In any event the cost of damage caused to the gutter on their property after the 2019 storms was met by the respondents, without admission as to their responsibility for that. [19] The applicants were rightly concerned that their insurers had a practice of asking questions in policy renewals forms about, and expecting answers to questions about the size and proximity of trees in the vicinity of their property, but it does not follow -- 5 of 9 -- 6 trees that insurers might ask about should be destroyed. Nor would insurers be justified in refusing insurance merely because of the presence of protected trees in a neighbourhood, but even were that refusal something that might occur, there was no evidence that this tree had led to that occurring here. [20] They introduced complaints which were of no real significance, including that there were drainage issues associated with the tree, which might cause erosion and ultimately, the failure of the root system. There was however no objective evidence that there was such a risk. There was evidence which I accept that steps had been taken to ensure that this did not occur. As I have identified above, the arborist Mr Mitchell in February 2023 specifically observed in his report there were no drainage issues as the tree was situated on a slope and all rain and excess water would run off. There was also objective photographic evidence that landscaping had occurred. That did not deter the applicants from maintaining their position that there were erosion and tree collapse risks. [21] When it came to the applicants producing photographs that supposedly demonstrated the extent of the problem of falling debris, I was taken to a photo taken more than five years ago of a stick which had fallen into their yard. It was of some 4 metres in length and what looked to be some three to five centimetres in diameter. Not a twig, not a limb but seemingly deadwood. This had been the result of an exceptional weather event with a very serious storm involved, and was by no means something they had been forced to tolerate with any regularity since. Whilst the stick was not something someone would care to be hit by; it was of a dimension that one could easily expect to be thrown in a significant storm event involving any tree. [22] Another example I was taken to was also of relative insignificance. In 2024 they found a fairly small wishbone shaped branch with attached leafy material with the branch being approximately 1m in length and what looked to be about a centimetre or so in diameter. One could expect to find that sort of material cast in any neighbourhood where eucalypts would be found and windy weather encountered. [23] Another photographic example was of a fallen stick or branch taken in 2024, but it was revealed to have not even fallen into the applicants’ property, but fell to the respondents’ side. [24] Improperly, in my view, the applicants sought to challenge the objectivity, honesty and integrity of the QCAT appointed tree assessor who did the assessment of the tree and wrote a report which by implication rejected the contention that it should be destroyed. They even made a formal complaint to QCAT using the complaint process for dealing with registry staff, even though he was not an employee or agent of QCAT. In my view there was no reasonable basis to challenge his objectivity and bona fides, but they did so anyway, amongst other things, accusing him of falsely stating the period for which he was on site for his inspection when, in fact, they had no real understanding of when it was that he had arrived or what he did when he arrived there before he spoke to them. [25] His conclusions were also challenged because amongst other things he was alleged to have estimated the height of the tree using his own judgement, instead of using more sophisticated measuring equipment to do so, and had taken photographs of the tree using a mobile phone camera rather than what it was suggested should have been a more complex SLR camera. In my view those criticisms were misplaced. -- 6 of 9 -- 7 [26] The applicants rejected the QCAT appointed tree assessor’s assessment of the extent to which there was any encroachment of the upper canopy, and as to the height and breadth of the canopy. Despite this, they presented no alternative measurement taken or measured by any other objective party or any other arborist. They did seek to seize upon discrepancies concerning the dimensions of the tree to be found within the two arborist reports obtained, despite the fact they did not generally agree with what was in either of those reports themselves. [27] I gained the impression that they had become advocates for the cause of ensuring the destruction of the tree and would not permit objectivity to intervene in that process. [28] They conceded appreciation of the neighbourhood amenity, which included a Substantial Gumtree Bushland conservation reserve immediately adjacent to the two properties and having left substantial trees on their own site, although not in the immediate vicinity of their home. [29] On the other hand despite evidence that the respondents had acted diligently to ensure proper maintenance of the tree each year, except for the previous year and a half while this proceeding was awaiting determination, they were not prepared to accept maintenance would continue, and that if given effect to, the recommendations by the arborist that maintenance had been appropriate and would be appropriate to continue in the future, provided an acceptable outcome to allay their concerns. [30] Again, the impression that they wanted this tree gone because of the inconvenience it caused them and their own concerns for their safety and that of their house in severe storms, although understandable, that concern is not given priority over the fundamental principles that apply in determining these kinds of applications and critically, that a living tree should not be removed or destroyed, unless the issues concerning it cannot otherwise be satisfactorily resolved. The relevant provisions of the ND Act [31] 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; [32] 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”.1 [33] The second arborist report concludes and I accept that branches from this tree extend over the applicants’ land to a small degree and thus satisfy the definition in s 46(a)(i) 1 ND Act s 61. -- 7 of 9 -- 8 of the ND Act as to when land is affected, that is in this case because the “branches from the tree overhang the land”. [34] 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 [35] 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 [36] 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. [37] What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.4 [38] 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. [39] 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 2 Watson-Brown v Heaton & Anor [2014] QCAT 346; Street v Smith & Rogers [2018] QCAT 193; Cacopardo v Woolcock [2017] QCAT 214; Hewitt v Brisbane City Council [2018] QCAT 282. 3 ND Act ss 46(a), 46(b), s 47(1). 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 & 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). -- 8 of 9 -- 9 including the contribution to amenity the trees make to the respondents’ land including their contribution to privacy and protection from noise.5 [40] 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 to be avoided. The contribution of the tree to amenity [41] In the second arborist report it is said that the Tallowwood the subject to this application is native and is a very important species as a food source for native wildlife, including Koalas, Gliders, Possums, Nectar feeding birds and insects. I accept that evidence. It follows that it has high ecological and amenity values. It is only partially contributing to the accumulation of tree and tree leaf debris within the applicants’ property, but even were it the substantial or sole cause of it, I do not consider that removal of the tree is justified. [42] Although 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; or (iii) remedy, restrain or prevent substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of the neighbour’s land, I do not consider that destruction of the tree is needed to prevent serious injury to any person or prevent serious damage or substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their property. [43] With a proper maintenance regime of the kind recommended by the arborists, unreasonable interference with the applicants’ use and enjoyment of their property can be prevented. Disposition [44] The applicants want an order for the destruction and removal of the offending tree. As I have said I do not consider that removal of the tree is justified having regard to the requirements of the ND Act and the evidence before me. [45] I order that the respondents: (a) Cause the subject Tallowwood tree to undergo a complete dead wood pruning procedure which includes all dead branches on the southern extent over the applicants’ property to 1 centimetre in diameter. (b) Have the subject tree inspected yearly by a Minimum AQF level 5 arborist to determine ongoing health, any rate of decline and overall safety and obtain advice as to whether further pruning is appropriate in the future. (c) Not permit any live tissue to be removed from the tree until future assessments deem the subject healthy enough to tolerate further loss of photosynthetic production. [46] I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. 5 ND Act s 73(1)(g). -- 9 of 9 --