Daveson v Penfold [2025] QCAT 201

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Daveson v Penfold [2025] QCAT 201 PARTIES: ADRIAN DAVESON (applicant) ELAINE DAVESON (applicant) v BONNIE-LEE PENFOLD (respondent) APPLICATION NO/S: NDR147-24 MATTER TYPE: Other civil dispute matters DELIVERED ON: 19 May 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Lee Benjamin ORDERS: Proceeding dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant alleges trees cause excess leaf litter, and risk of injury – where applicants failed to file evidence to support their assertions – consideration of the maintenance of leaf litter required for trees – not a substantial, ongoing and unreasonable interference with the use and enjoyment of land Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46(a)(i), s 48, s 49, s 61, s 65(a), s 65(d), s 66(2) 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 What is this proceeding about? [1] This proceeding is about a tree dispute. [2] Mr and Mrs Daveson say that there is a gum tree situated on Ms Penfold’s land that affects Mr and Mrs Daveson’s land. Mr and Mrs Daveson say that the tree should be removed at Ms Penfold’s expense. Mr and Mrs Daveson’s principal complaint about -- 1 of 4 -- 2 the tree, which they say is more than 20 meters tall, relates to leaf and small branch litter. Mr and Mrs Daveson are also concerned about the possibility of bigger branches falling onto their land. [3] Ms Penfold appears to agree that the tree exceeds the boundary between the parties’ properties but is unsure about the extent of the same. There is also disagreement about the tree’s height. Ms Penfold refuses to remove the tree herself . Ms Penfold further contends that she is not in a financial position to engage an arborist to have the tree removed. Jurisdiction [4] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) is an enabling Act empowering the Tribunal to make orders about trees. [5] I am satisfied that: (a) Mr and Mrs Daveson are a neighbour;1 (b) Ms Penfold is a tree keeper;2 (c) there is, situated on Ms Penfold’s land, a gum tree immediately adjacent to the boundary fence between Mr and Mrs Daveson’s land and Ms Penfold’s land (the tree); (d) the tree branches extend over Mr and Mrs Daveson’s land; (e) Mr and Mrs Daveson’s land is affected by the tree;3 (f) Mr and Mrs Daveson have made a reasonable effort to reach agreement with Ms Penfold about the tree;4 (g) Ms Penfold was served with the originating application;5 and (h) the Tribunal has jurisdiction to decide the tree dispute.6 What does the law say? [6] Under the ND Act, the Tribunal may make orders it considers appropriate in relation to a tree affecting a 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 (ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.7 1 ND Act s 49. 2 Ibid s 48. 3 Ibid s 46(a)(i). 4 Ibid s 65(a). 5 Ibid s 65(d). 6 Ibid s 61. 7 Ibid s 66(2). -- 2 of 4 -- 3 [7] As the applicants, Mr and Mrs Daveson bear the onus of proving their case on the balance of probabilities. Each party may file evidence and make submissions to the Tribunal in support of their case. In deciding an application, the Tribunal must make findings about the facts and apply the law to the same. What do the parties say? [8] A directions hearing was held on 13 November 2024. Mr Daveson and Ms Penfold attended the hearing. At the same, Mr Daveson indicated that he and Mrs Daveson did not wish to obtain evidence from an arborist (or file other evidence) or make submissions, beyond what is included in the originating application. Accordingly, the Tribunal’s directions provided for the matter to be determined on the papers. [9] Mr and Mrs Daveson’s contentions about the tree, as best understood from the originating application, are: (a) the tree is likely to cause serious injury within the next 12 months because Mrs Daveson has impaired vision and is unsteady on her feet, with debris from the tree a threat to her safety while walking in the yard; (b) if large tree branches fall, they will destroy Mr and Mrs Daveson’s bush house and citrus trees; (c) Mr and Mrs Daveson regularly clean up their yard to reduce the risk of injury; (d) the tree has caused substantial, ongoing and unreasonable interference with the use and enjoyment of Mr and Mrs Daveson’s land because they need to undertake continual clean up of leaves and small branches; and (e) overall, the tree is dangerous and causes constant fear in large winds. [10] In responding to the originating application, Ms Penfold says that the tree has not caused serious injury to any person, nor has it caused serious damage. Ms Penfold contends that most homeowners must clean up leaves and small branches. Discussion [11] I will now address Mr and Mrs Daveson’s key contentions about the tree. The tree is likely to cause serious injury within the next 12 months or damage land (or property on the land) [12] Mr and Mrs Daveson offer no evidence to support their assertion that the tree poses a risk of injury to a person. While I accept that Mrs Daveson is unsteady on her feet, there is no evidence that, for example, large branches from the tree have fallen in the past or that the tree has structural defects predisposing it to branch failure. Mr and Mrs Daveson have similarly declined to present evidence from an arborist that the tree poses a risk of damage to their land or property on land or injury to a person. [13] I am not satisfied on the evidence before the Tribunal that it is appropriate to make an order about the tree to prevent serious injury to a person or to prevent damage to Mr and Mrs Daveson’s land or property on his land. The tree has caused substantial, ongoing and unreasonable interference [14] It is well established that leaf litter deposited by a tree will not be sufficient, without more, to form the basis for an order about the tree. Past Tribunals have repeatedly -- 3 of 4 -- 4 found that the presence of trees requires all residents to take some responsibility for cleaning leaf litter on a regular basis. Leaf and related litter do not constitute substantial, ongoing and unreasonable interference with the use and enjoyment of the land. Conclusion [15] In my view, Mr and Mrs Daveson have failed to adduce evidence to satisfy the Tribunal that it is appropriate for an order to be made about the trees. [16] The proceeding is dismissed. -- 4 of 4 --