Dunstan v Hope Island Resort Principal Body Corporate [2025] QCAT 264

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dunstan v Hope Island Resort Principal Body Corporate [2025] QCAT 264 PARTIES: NEIL GLEN DUNSTAN (applicant) ELVIRA DUNSTAN (applicant) v HOPE ISLAND RESORT PRINCIPAL BODY CORPORATE (PBC) (respondent) APPLICATION NO/S: NDR171-22 MATTER TYPE: Neighbourhood Dispute DELIVERED ON: 16 June 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member S M Burke ORDERS: 1. The Applicants’ application for removal of all the trees the subject of complaint is dismissed. 2. The Tribunal appoints a qualified arborist as an independent tree assessor to provide a report (“expert report”) in relation to the subject tree identified as T4 to identify whether it is necessary to remove the subject tree identified as T4 in order to ensure that the subject tree does not cause any further substantial, ongoing and unreasonable interference with the Applicants’ property. 3. The independent tree assessor will provide the Tribunal and the parties with any recommendations for alternative maintenance if the removal of the tree identified as T4 is not determined to be necessary. 4. The independent tree assessor is also to provide recommendations in relation to the regular maintenance of all the trees the subject of the Applicants’ application to ensure that the subject trees do not cause any unreasonable interference with the Applicants’ property. -- 1 of 10 -- 2 5. In the event that the expert report confirms that the subject tree identified as T4 is to be removed, the Respondent is to make application to the Gold Coast City Council regarding the removal of the subject tree identified as T4. 6. In the event that the expert report recommends an alternative solution to removal of the tree identified as T4, the Respondent is to carry out such required work including strict maintenance of the subject trees on a regular basis. 7. Any costs associated with either the removal of the subject tree identified as T4 or any alternative works recommended by the appointed independent tree assessor to all the subject trees are to be borne by the Respondent. 8. Any works to be carried out on the recommendation of the independent tree assessor are to be carried out by a qualified AQF Level 3 arborist. 9. The costs of the independent tree assessor are to be borne equally between the Applicants and the Respondent. CATCHWORDS: NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 72, s 73, s 75 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] The Applicants, Neil Glen Dunstan and Elvira Dunstan, are the registered owners of Lot 37 in Gracemere Island Two GTP 107093 known as 2537 Gracemere Court West Hope Island. [2] The Respondent is the Hope Island Resort Principal Body Corporate (PBC). [3] Pursuant to a decision dated 27 February 2024, the Applicants’ appeal regarding their standing to bring the present application was allowed whereby the Applicants were determined to be “neighbours” pursuant to s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). [4] The trees the subject of the Applicants’ application, filed 17 August 2022, are situated on the nature strip of Gowrie Way Hope Island which runs along the southern -- 2 of 10 -- 3 boundary of the Applicants’ property. The nature strip is the property of the Hope Island Resort Principal Body Corporate. The trees are situated approximately 2 metres from the Applicants’ property and consist of four mature yellow poinciana trees measuring approximately 6 to 8 metres in height (“the subject trees”). [5] The Applicants seek the following orders: (a) that the Respondent apply for a consent or other authorisation from the relevant government authority in relation to the trees the subject of dispute; (b) that the Respondent carry out the removal of the subject trees; (c) that the Respondent pay the costs of carrying out any works ordered by the Tribunal. [6] The Council of the City of Gold Coast (“the GCCC”) is the relevant government authority to whom any application is required to be made under the Gold Coast City Plan 2016 (the “City Plan”). Section 9.4.14 of the City Plan contains the Vegetation Management Code which addresses the process for making an application for the removal of trees on common property. [7] The vegetation management code provides guidance on what is considered acceptable removal of, or damage to, assessable vegetation, before it becomes assessable development and requires an application to the GCCC to remove or damage the vegetation. Table 1 of the vegetation management code outlines the circumstances where removal of, or damage to, vegetation is considered to be self-assessable and does not require lodgement of a development application to the GCCC. [8] If the proposed works do not fall within the self-assessable criteria, an application to the GCCC is required to be made. [9] One of the options for criteria for identifying the vegetation as assessable vegetation as defined within the City Plan is vegetation that is greater than 4 metres in height. It would seem that there is tacit agreement between the parties that the subject trees fall into the category of being assessable vegetation. This stance is supported by the Applicants’ request that an order be made that the Respondent make such an application. [10] In the usual course, the application is to be submitted by the owner of the property or submitted with written authorisation enabling others to apply on the owner’s behalf. In circumstances relating to trees on common property, the application is submitted by the body corporate or its representative. The Relevant Legislation [11] This Tribunal 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 the Tribunal, land is affected by the tree.1 [12] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Act”) provides, pursuant to s 52, that an owner of land on which a tree is situated (“the tree- keeper”) is responsible for: (a) cutting and removing any branches of the tree that overhang a neighbour’s land; 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 61. -- 3 of 10 -- 4 (b) ensuring that the tree does not cause: (i) serious injury to a person; or (ii) serious damage to a person’s land or any property on a person’s land; (iii) substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land. [13] Section 46 of the Act provides that 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; (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. [14] The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land. [15] Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act. [16] Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land– (a) to prevent serious injury to a 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 (ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. [17] Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, an order may do any of the following– (a) require or allow the tree-keeper or neighbour to carry out work on the tree on the tree on a particular occasion or on an ongoing basis; Examples– • an order that requires the removal of the tree within 28 days -- 4 of 10 -- 5 • an order that requires particular maintenance work on the tree during a particular season every year • an order that requires particular work to maintain the tree at a particular height, width or shape (b) require that a survey be undertaken to clarify the tree’s location in relation to the common boundary; (c) require a person to apply for a consent or other authorisation from a government authority in relation to the tree; (d) authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order; (e) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; (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; (g) require a report by an appropriately qualified arborist. [18] Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters: (a) the neighbour has made reasonable effort to reach agreement with the tree-keeper; (b) the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process; (c) to the extent the issue relates to land being affected because branches from the tree overhang the land– (i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and (ii) the neighbour cannot properly resolve the issue using the process under Part 4; (d) the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived. [19] Matters to be considered by the Tribunal are set out in sections 71 to 75 of the Act. [20] Section 71 states that the primary consideration is the safety of any person. [21] Section 72 states that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. [22] Section 73 identifies the general matters which the Tribunal must consider: (a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree; (b) whether carrying out work on the tree would require any consent or other authorisation under another act and, if so, whether the consent or authorisation has been obtained; -- 5 of 10 -- 6 (c) whether the tree has any historical, cultural, social or scientific value; (d) any contribution the tree makes to the local ecosystem and to biodiversity; (e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality; (f) any contribution the tree makes to public amenity; (g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke; (h) any impact the tree has on soil stability, the water table or other natural features of the land or locality; (i) any risks associated with the tree in the event of a cyclone or other extreme weather event; (j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it as a particular height, width or shape; (k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law. [23] For present purposes, other matters which the Tribunal is to consider in the event that unreasonable interference is alleged includes the following: (a) anything other than the tree has contributed, or is contributing, to the interference; and (b) any steps taken by the tree-keeper or the neighbour to prevent of minimise the interference; and (c) the size of the neighbour’s land; and (d) whether the tree existed before the neighbour acquired the land; and (e) for interference that is an obstruction of sunlight or a view – any contribution the tree makes to the protection or revegetation of a waterway or foreshore. Compliance with section 65 of the Act [24] Evidence, by way of correspondence, has been provided by both parties indicating that attempts to resolve the issues between the parties have been instigated by the Respondent to the extent that it has undertaken an inspection of the subject trees and had undertaken an audit of the trees. [25] Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper, I am satisfied that the requirements of s 65 of the Act have been fulfilled. The Dispute [26] By letter dated 6 December 2021, the Applicants made a formal application to the Respondent pursuant to By-Law 4.03 of the Gracemere Island Two Body Corporate By-laws (“the By-Laws”) for the removal of the subject trees on the following bases: -- 6 of 10 -- 7 (a) the subject trees are an “environmental weed” which, due to their size, flowerage and seed pod productions, cause significant and ongoing work and monetary loss for the Applicants; (b) the subject trees negatively impact the quality of life of the Applicants and affect their quiet enjoyment of their property; (c) the subject trees consistently drop debris from the small foliage, in particular causing the need for continual cleaning of the garden, swimming pool, pool pump/water filtration works and surrounding areas. [27] In addition to the above complaints, the Applicants assert that: (a) the tree litter regularly clogs the rainwater gutters of the Applicants’ home and contributes to flooding and rainwater damage inside the home. For reasons of personal safety, the Applicants are required to engage a professional gutter cleaning contractor to remove the offending tree litter; (b) there is evidence of root ingress on the southern boundary which is likely to affect the foundations of the Applicants’ home in time. [28] In support of the Applicants’ complaints, the Applicants have provided 31 photographs taken during 2020 and 2021 identifying the areas of litter nuisance and root invasion. [29] As an alternative to the removal of the trees, the Applicants proposed that there be a discussion with the Respondent to agree upon a 6 monthly gutter cleaning of the Applicants’ home and cleaning service of the surrounding pool and affected area on a 2-weekly basis with the costs to be borne by the Respondent. [30] By letter dated 4 March 2022, the Respondent responded to the Applicants’ complaints after a meeting of the Primary Thoroughfare Body Corporate (“PTBC”) Landscaping and Trees Subcommittee (“LTSC”). [31] The advice of the LTSC was that a recent tree audit had been carried out by Independent Arboricultural Services and that it had been determined that there were no health issues or trimming requirements for the subject trees. [32] The Respondent further noted that the GCCC will not permit the removal of a healthy tree for reasons associated with tree debris. Further, the proposal for maintenance of the Applicants’ gutters at the expense of the Respondent was refused. [33] By letter dated 1 July 2022, the solicitors for the Applicants responded to the Respondent’s letter of 4 March 2022 confirming that the Applicants’ primary position was its request that the Respondent take the appropriate steps under the City Plan in order for the GCCC to determine whether the subject trees can be removed. Given that the consent of the Respondent (as landowner) is required for the application under the City Plan, the Applicants’ requested that the application be made by the Respondent. [34] To circumvent any possible confusion regarding the Applicants’ stance, the letter attached a proposed Motion to be considered by the Respondent authorising the Applicants (at their own cost) to apply for the necessary Council certifications or approvals in order to remove the subject trees. In other words, the Applicants proposed that the Respondent give authority to the Applicants to make the necessary application to the GCCC on behalf of the Respondent. -- 7 of 10 -- 8 [35] The Respondent subsequently advised that it had engaged an arborist to review the trees. [36] The Applicants’ invitation for an inspection of their property and a request for participation in the inspection by the Respondent’s arborist was ignored by the Respondent. [37] It is the Respondent’s case that the subject trees on the common property are no threat to the Applicants’ property. It is asserted that all trees are planted well clear of any private homes and are professionally maintained by a contracted garden maintenance company on a regular basis. [38] The Respondent asserts that any tree litter issues caused to the Applicants’ pool and surrounding areas emanates from trees situated within the Applicants’ property. Photographic evidence provided by the Respondent highlights the types of trees planted within the boundary of the Applicants’ property which have been identified by the Applicants as: (a) Strelitzia Nicolai banana type evergreen trees with large fronds; and (b) Frangipani trees located adjacent to the Applicants’ swimming pool. Discussion [39] This Tribunal has not been requested to determine whether the removal of the subject trees is considered to be self-assessable and thus not requiring lodgement of a development application. Both parties have proceeded on the basis that removal or damage to the vegetation is not acceptable unless an application is made to the GCCC. [40] Accordingly, the Tribunal has proceeded on this basis without making any determination as to whether the removal or damage to the subject trees requires an application pursuant to the City Plan. [41] Attached to the Applicants’ application, in a section headed “Part D”, further information has been provided by the Applicants including a diagram identifying the position of the subject trees. For the purpose of my consideration, I refer to the trees numbered 1 to 4 by reference to that diagram in Part D. Along the relevant stretch of Gowrie Way, tree number 4 (“T4”) is closest to the swimming pool located on the Applicants’ property and tree number 1 (“T1”) is located closest to the roundabout which is identified on the aerial imagery of the site. All the subject trees are identified with yellow circles and identified as T1, T2, T3 and T4. [42] The photographic evidence provided by the Applicants clearly indicates that there is a substantial amount of tree litter consisting of confetti sized leaves, yellow flowers and black seed pods which fall on a substantial area of the Applicants’ property, in particular in the area around the swimming pool, the rainwater downpipe and the pool filter. [43] The Respondent’s assertion that the tree litter emanates from trees within the Applicants’ own property does not seem feasible given the type of tree indicated in the photographic evidence provided by the Respondent. I do not accept that the tree litter the subject of the complaint has been caused by either the banana leaf trees or the frangipani trees on the Applicants’ property. The foliage from either of those species is not evident in any of the photographic evidence and is unlikely to cause the nuisance the subject of the complaint. -- 8 of 10 -- 9 [44] Pursuant to s 52 of the Act, it is the responsibility of the Respondent to maintain the subject trees to ensure that they do not cause: (a) serious injury to a person; or (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. [45] The Applicants assert that the leaves, flowers and seed pods from the subject trees are perpetually blocking the guttering on the south-east side of the Applicants’ home and cause substantial, ongoing and unreasonable interference with the use and enjoyment of their property. [46] The Applicants rely upon the following four factors to support their application: (a) personal safety concerns associated with the size of the trees as evidence during severe storm events; (b) risk of physical damage to the Applicants’ property during severe weather events; (c) risk of flood damage to the Applicants’ home resulting from blocked gutters and downpipes; (d) continual nuisance associated with continual cleaning required to skim the tree litter from the swimming pool and surrounding areas and the pool filter. [47] I am satisfied on the evidence provided by the Applicants that the tree litter in the form of confetti type leaves and seed pods are a continual nuisance and unreasonably interfere with the use and enjoyment of their property. [48] Unfortunately, neither party has provided a report to assist the Tribunal in determining whether the solution to the problem may be achieved by proper regular maintenance of the subject trees or whether the only solution to the nuisance is removal of one or more of the trees. [49] I have formed the view, on the evidence before me, that the offending tree is the subject tree located closest to the Applicants’ pool area, namely the tree identified as T4. [50] In the absence of any evidence from a qualified arborist, I propose to make orders for the appointment of an independent tree assessor to determine the best solution to ensure that the nuisance caused to the Applicants is resolved. Conclusions [51] I am satisfied that the subject tree identified as T4, closest to the pool area of the Applicants’ property, has caused substantial interference to the Applicants’ enjoyment of their property. [52] I am not satisfied that the subject trees identified as T1, T2 and T3 have impacted the Applicants’ enjoyment of their property. [53] In the absence of independent expert evidence to assist the Tribunal in determining whether removal of the tree identified as T4 is warranted, the Tribunal will appoint an independent tree assessor to make recommendations in relation to the removal or -- 9 of 10 -- 10 proper maintenance of the tree and the parties are to be bound by the determination expressed in the independent tree assessor’s report. [54] In the event that removal of the subject tree is recommended by the independent tree assessor, it is incumbent on the Respondent to make an application to the GCCC for approval to remove the tree to ensure that the subject trees do not cause further nuisance to the Applicants’ property and enjoyment of their property. Orders [55] Based on the reasons provided above, the Tribunal determines that the following orders should be made: (a) the Tribunal is to appoint a qualified arborist as an independent tree assessor to provide a report (“expert report”) in relation to the subject tree identified as T4 to identify whether it is necessary to remove the subject tree identified as T4 in order to ensure that the subject tree does not cause any further substantial, ongoing and unreasonable interference with the Applicants’ property; (b) the independent tree assessor will provide the Tribunal and the parties with any recommendation for alternative maintenance if it is determined that the removal to the tree identified as T4 is not determined to be necessary; (c) the independent tree assessor is also to provide recommendations in relation to the regular maintenance of all the trees the subject of the Applicants’ application to ensure that the subject trees do not cause any unreasonable interference with the Applicants’ property; (d) in the event that the expert report confirms that the subject tree identified as T4 is to be removed, the Respondent is to make application to the Gold Coast City Council regarding the removal of the subject tree identified as T4; (e) in the event that the expert report recommends an alternative solution to removal of the tree identified as T4, the Respondent is to carry out such required work required including strict maintenance of the subject trees on a regular basis; (f) any costs associated with either the removal of the subject tree identified as T4 or any alternative works recommended by the appointed independent tree assessor to all the subject trees are to be borne by the Respondent; (g) any works to be carried out on the recommendation of the independent tree assessor are to be carried out by a qualified AQF Level 3 arborist; (h) the costs of the independent tree assessor are to be borne equally between the Applicants and the Respondent. -- 10 of 10 --