Neighbour’s bid to cut back overhanging gum tree dismissed for lack of evidence (QCAT, 2026)

What happened

A large gum tree grows on a residential property owned by a couple who do not live there. They rent it to tenants. The tree overhangs the house next door. An arborist (a tree specialist) estimated it at about 20 metres high, with a canopy of about 15 metres and an overhang of about six metres onto the neighbour's land.

The neighbour first raised her concerns with the owners on 31 December 2023. Between February and July 2024 she and one of the owners exchanged many text messages, including about getting quotes to remove branches over her property. The dispute was not resolved, and she applied to the tribunal. The matter was heard at Southport on 5 August 2026.

The neighbour said branches had come down during a cyclone in February 2025 and in strong winds. She produced a photo, dated 7 March 2025, of a branch on her lawn. She also pointed to marks she said were mould on her house, gutters she has cleaned about every six to eight months, two bedroom windows shaded from about sunrise until midday, and solar panels (installed around 2020, when the tree was already well established) shaded until about midday in summer and 1:00 pm in winter. One photo taken at 7:46 am on 7 August 2025 appeared to show the tree's shadow over six rows of panels.

What each side wanted

The neighbour wanted orders about the tree under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). She argued the tree risked serious injury or damage from falling branches, had caused mould, and was a substantial, ongoing and unreasonable interference with her use of her land through leaf litter, loss of sunlight to her bedrooms and shading of her solar panels. The owners asked for the case to be thrown out at the start. They said she had not made a reasonable effort to resolve the dispute before applying. They also argued that her photos showed no fallen branches or damage. They produced aerial photos from 2019 to 2026 and four photos taken on 15 May 2026, none of which showed the tree shading her roof.

What the tribunal decided

The tribunal first refused the owners' request to throw out the case. It found the text messages and talk about quotes were a reasonable effort to resolve the dispute.

On the main application, the tribunal found that none of the neighbour's complaints met the legal tests. Its only order was: "The application is dismissed." No money was ordered to be paid and no tree work was ordered.

Why the tribunal decided it that way

Under the Act, the owners were the "tree keepers" (the people responsible for the tree) and the applicant was their "neighbour". The tribunal can only make orders under section 66 if the tree is likely to cause serious injury to a person, or serious damage to the neighbour's land or property, or a substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of her land. For loss of sunlight, section 66(3) adds a stricter test. The tree must be at least 2.5 metres tall, and the obstruction must be "severe" for a window or roof of a house. The tribunal said the law does not let it step in just because a tree is inconvenient. The neighbour carried the onus (the burden of proving her case) on the balance of probabilities, meaning she had to show it was more likely than not.

On falling branches, the arborist's written report spoke of possible future damage. It did not say when branch failure might happen or how likely it was. At the hearing, the arborist described picking up a three-metre branch he thought had hit the roof. Under cross-examination he accepted he was probably confusing this tree with other cyclone clean-up jobs and said, "I don't trust my memory now." The tribunal gave no weight to that part of his evidence and found no proven risk of serious injury or damage. On mould, there was no independent evidence that the tree caused the marks, and no evidence that any damage was serious. The neighbour also said at the hearing she was no longer claiming for mould.

On leaves and debris, there were no photos of build-up and no proof the material came mainly from this tree. The tribunal relied on a Court of Appeal decision, Graham v Welch. That case says ordinary falling leaves, gumnuts and twigs are part of living with trees and are not enough on their own. On the bedrooms, there were only outside photos, with no shade diagram and no expert evidence. The neighbour also said she spent only five to ten minutes in those rooms during the shaded hours. On the solar panels, the tribunal accepted the tree caused some morning shade. However, there was no expert evidence on the system's output and no electricity bills or records showing a real effect, and the panels got sun at other times. Neither sunlight complaint reached the "severe" level required.

What this means if you are in a similar position

This decision shows that under Queensland's tree dispute laws, showing that a tree affects your property is not enough. If you are in a similar position, the tribunal will look at each complaint against its own legal test. It will ask whether there is a likely risk of serious injury or damage, whether there is a substantial, ongoing and unreasonable interference, and, for sunlight, whether the obstruction is severe. Here, the tribunal pointed to gaps such as no shade diagrams, no inside photos, no electricity bills, no photos of debris, and expert evidence that did not say how likely or how soon branches might fall. It also noted that ordinary leaf and gumnut fall is usually treated as part of living near trees.

The case also shows how the tribunal treats the step before applying. The Act requires a reasonable effort to reach agreement with the tree keeper, and reasonable steps through any local council process. In this case, a written record of text messages and discussions about quotes was enough to meet that requirement.

In disputes like this, the first step most people take is to raise the problem in writing with the tree's owner and keep a record of the replies. They then follow any local council process. An application to the tribunal usually comes only if those steps do not resolve the issue.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and neighbour disputes.

Source: Webster v Hogan [2026] QCAT 458 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.