Andrews v Gardner [2024] QCAT 597

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Andrews v Gardner [2024] QCAT 597 PARTIES: LISA ANDREWS (applicant) v MARK GARDNER (respondent) and ANDREW GARDNER (respondent) APPLICATION NO/S: NDR127-23 MATTER TYPE: Other civil dispute matters DELIVERED ON: 9 December 2024 HEARING DATE: 29, 30 April 2024 HEARD AT: Brisbane DECISION OF: Member Munasinghe ORDERS: Mark Gardner and Andrew Gardner, the registered owners of the lot at 15 Ashbolt Street, Wooloowin, must arrange for the removal of the two Chinese Celtis (Chinese Elm) trees (‘the trees’) that are the subject of the dispute at their own cost. The removal of the trees must include grinding and removal of their stumps to prevent regrowth and must be undertaken by an appropriately qualified and insured arborist with a minimum qualification of Australian Qualifications Framework Level 3. The removal of the trees must be carried out by 10 March 2025. Mark Gardner and Andrew Gardner must pay Lisa Andrews costs in the amount of $379.50 within 14 days of the date of this order. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant contends respondents’ trees ought to be removed to prevent serious injury and serious damage to property and remedy substantial, ongoing, and unreasonable interference with the use and enjoyment of her land -- 1 of 10 -- 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66, s 73, s 75 REASONS FOR DECISION [1] Mrs Andrews shares a common boundary with her neighbours Mark Gardner and Andrew Gardner. She applies to the Tribunal to order the removal of two Chinese Elm Trees (‘tree’) situated on the Gardners’ land. Both Elms have grown together in unison and their root systems and upper canopies have developed in conjunction with each other. Accordingly, in this decision, it is convenient to treat both Elms as a single tree. [2] There is an existing timber fence and an existing retaining wall between Mrs Andrews’ land and that of the Gardners. A cadastral survey conducted by Trilogy Survey Solutions (‘Trilogy’) reveals the following: (a) the existing fence is situated entirely on Mrs Andrews’ land. (b) the existing retaining wall is partially on her land. (c) the base of the tree is predominantly located on the Gardners’ land, but it crosses the common boundary into Mrs Andrews’ land. [3] Mrs Andrews moves for the tree to be removed because, on her account, it sheds an excessive quantity of leaves and branches into her property. She also contends that sap from the tree causes black sooty mould to accumulate on, and damage, furniture in her yard. Further, Mrs Andrews wants to landscape her backyard with gardens, construct a retaining wall, and erect a new timber fence. She claims that the tree’s positioning on the common boundary prevents her from doing those things. [4] In written submissions to the Tribunal Mrs Andrews claims: (a) the tree’s canopy extends more than five meters over her property and most of its trunk and limbs are within her property. (b) constructing her pool as far away as possible from the tree has not ameliorated the excessive quantity of leaves that fall into it. (c) the tree’s roots have ruptured the bottom of the existing fence. She lodged a separate application in the Tribunal (Q759-23) seeking a new dividing fence. (d) the tree’s invasive roots prevent her from installing garden beds, constructing a retaining wall, and landscaping her land. (e) the tree’s extensive and invasive root system combined with the existing restraining wall make it impossible for a fencer to install safe and secure footings which are necessary to erect a fence. (f) the tree drops its full canopy each year between April and August. It has been necessary for her to dispose of furniture in her yard which has rotted from exposure to falling leaf litter from the tree. The leaves do not break down and must be physically removed, which she finds onerous. (g) in November 2022 she exercised her common law right of abatement in respect of the tree by pruning it and removing its roots up to the common boundary. Taking those steps has not noticeably reduced the quantity of leaf litter that falls into her yard. -- 2 of 10 -- 3 (h) the tree provides no privacy benefits because it has an umbrella shaped canopy which is more than eight metres above the ground. (i) the shade that the tree casts, and the black sooty mould it produces, has caused the existing fence to degrade substantially over the past ten years. The fence is covering in mould and moss, and it is rotting. It is also leaning into her property. Constructing a new fence would likely require constant Tribunal involvement every time it fell into disrepair due to the tree. The Gardners’ Submissions [5] The Gardners oppose the removal of the tree. They deny that the tree produces excessive leaf litter or that it damages Mrs Andrews’ pool equipment and furniture. They argue that the Tribunal should make orders requiring them to maintain and prune the tree, rather than ordering its destruction. [6] Further, they contend that a new fence and retaining wall can be constructed provided accommodations are made for the tree. They contend that a sufficient dividing fence as defined in Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) is between 500mm and 800mm high, which would allow for a chain wire fence to be built on the common boundary. Alternatively, they contend that a timber fence, with scalloping around the parts of the tree that intersect with the common boundary, is a suitable compromise. [7] The Gardners agree that the existing retaining wall encroaches on Mrs Andrews’ property and should be removed. However, they contend that the extent of the encroachment is only 200-300mm, not 1000mm. [8] The Gardners profess to deriving significant enjoyment from the tree. They claim it provides significant physical and visual amenity due to the shade it casts and by softening the visual impact of surrounding structures. They argue that the tree supports the local ecosystem and wildlife. Tree Assessors [9] The Tribunal benefited from the reports of two tree assessors. They were: (a) Stephen Richards; and (b) Jason-jay Naylor. Tree Assessment Report of Steven Richards [10] In a Tree Assessment Report dated 30 October 2023, Mr Richards stated: (a) the subject trees have grown together in unison. Their root systems and upper canopies have developed in conjunction with each other. For the purposes of his report, he intends to consider the trees as a single tree unit with two main leaders. (b) the stem of Tree No. 2 leans slightly to the north and intersects with the dividing fence approximately 200ml above ground level. (c) the subject tree is a declared Category 3 Restricted Matter (Biosecurity Act 2014 (Qld)). The restriction is limited to sale and distribution and is not a restricted category. (d) the subject tree is deciduous, which means it loses it leaves in winter. -- 3 of 10 -- 4 (e) the subject tree is estimated to be 50-60 years of age. (f) when he inspected the tree, the branches of its northern canopy had been completely pruned back to the trunk effectively removing all overhanging limbs to an approximate height of 10m above ground level. The pruning did not conform to Australian pruning standards because more than 20% of the canopy was removed for only one objective. (g) Dividing fences can be constructed around trees without damaging them or compromising the property boundaries. The report contained example photographs. (h) Mrs Andrews removed significant structural and transport roots when the landscaped the rear of their property. The structural integrity of the tree is not a primary concern but the decline in its health is of grave importance. [11] Ultimately, Mr Richards recommended the retention of the tree and that a Min. AQF level 5 arborist with experience in construction damage and plant health care programs should be engaged to design and implement a program that address the issues caused by the damage to the tree. Methodologies include: (a) vertical coring in conjunction with compost repatriation; (b) horticultural watering; (c) fortnightly visitations; and (d) installation of a dynamic cabling system in the upper canopies of both trees. [12] Notably, Mr Richards opined that it was important to note that the health of Tree No. 2 must be closely monitored. If decline persists for more than a two-year period, then the engaged consultant must make the decision for removal. The removal of tree No. 2 necessitates the removal of Tree No. 1 due to their association. [13] He also stated that in the event the subject trees’ health can be restored an Arboricultural Impact Report should be commissioned to implement a methodology to assist with fence construction. [14] The lack of consultation with AS4970-2009 Protection of trees on Development sites has given no methodology for contractors to follow which would mitigate tree damage, potentially undermining continued tree health and viability in the landscape. Report of Jason-jay Naylor [15] Mr Naylor is an Arboricultural Scientist for Treescience Pty Ltd, an arboricultural consultancy. He has 28 years’ experience in urban arboriculture. He produced two reports. In his first report dated 12 April 2024, Mr Naylor relevantly stated: (a) the subject tree predates the purchase of the adjacent properties. It has landscape amenity value. (b) It is clearly apparent that the Gardners have utilised established arboricultural management principles which has ensured a viable and sustainable urban landscape tree with consideration of a tree keeper’s responsibilities. -- 4 of 10 -- 5 (c) it is prudent and reasonable to state that the Gardners are more than urban observers of the trees because they have administered a level of tree maintenance works over a period of time. [16] In his second report dated 26 April 2024, Mr Naylor advocates for the retention of tree. He relevantly stated: (a) the subject tree consists of two trunks in close proximity and therefore is classified as a single tree. (b) a Chinese Elm tree is an environmental woody weed species and declared Category 3 Restricted Matter (Biosecurity Act 2014 (Qld)) in Queensland. Under this Act sales and distribution is restricted. (c) in his professional opinion the tree has reached maturity and has commenced arresting its growing potential. (d) he designed and implemented a plant health care program for the tree and installed a Cobra tree bracing system for tree for the reasons outlined in the Richards report. (e) Mrs Andrews’ removal of woody anchorage tree roots “poses many complexities with regards to long term tree retention”. The removal of said roots “ha[s] exacerbated the subject tree’s risk potential via wood degradation, reduced tree vitality in addition to the possible onset of insect pests and fungal pathogens if not correctly managed…” (f) the “canopy trajectory of the subject tree is somewhat elevated, providing no residential yard restriction or foreseen impediments and therefore is not classified as a nuisance with consideration of the adjoining neighbour’s reasonable enjoyment of his or her land”. (g) Mrs Andrews’ interference with the tree has “potentially compromised the subject tree and useful life expectancy as a functioning landscape amenity tree” and would “take years to remediate”. The Hearing [17] A hearing took place on 29 and 30 April 2024. Mr Richards and Mr Naylor gave concurrent evidence in an arrangement colloquially referred to as the “hot tub” method. Relevantly, they said: (a) Mr Richards was shown exhibit 2, which is a series of photographs of the tree’s trunk with a stringline running alongside it (the Gardners contend that the stringline marks the true location of the common boundary). In the photographs, a portion of the tree’s trunk appears to be situated directly below the stringline. Mr Richards was asked what effect removing that portion of the tree would have on its health. In response, he opined that taking such a step would “create structural instability” and be a “death sentence for the tree”. (b) Mr Naylor was also given exhibit 2. He said that removing the portion of the tree under the stringline to soil level would have a significant effect on the tree’s health, but it “might survive”. However, if its roots were removed below soil level the “tree’s structural integrity would be impacted and it may die”. -- 5 of 10 -- 6 (c) Mr Richards is not worried the tree is “immediately going to fall”. it has responded well to interventions. Mr Naylor also stated that the tree had responded well to his healthcare regime. (d) Mr Naylor said that no pruning to the upper canopy of the tree should take place for at least two to three years because its canopy had already been reduced by 20 percent. (e) Mr Richards and Mr Naylor both agreed that the top section of any proposed fence would need to be cut out because the tree’s trunk leans into Mrs Andrews property. [18] Mrs Andrews gave the following evidence, and made the following submissions at the hearing: (a) the tree has deposited sooty mould on her pool umbrellas which are only two months old. The photographs of the umbrellas in her material were taken a week prior to the hearing. The umbrellas which are furthest away from the tree have no mould on them. (b) she has installed a temporary fence because the existing fence has so many gaps in it. (c) overhanging branches from the tree presently extend six to seven metres across her property. The tree currently shades approximately one third of her yard. (d) a large quantity of leaves continues to fall in her pool notwithstanding the pruning to the tree that in December 2022. (e) scalloping the fence or constructing it with gaps would look ugly and is incongruent with surrounding fences. It would be an “eyesore”. (f) the Gardners have failed to provide the Tribunal with evidence that a fence can be constructed if the tree remains in situ. (g) the Gardners have taken no steps to prune the trees since January 2016. (h) the monitoring regime suggested by the experts is more costly than removing the trees in the first instance. [19] At the hearing the Gardners gave the following evidence and made the following submissions: (a) they do not dispute the Trilogy survey but they take issue with the location of the blue marker that Trilogy placed in the tree to indicate where it intersects with the common boundary. Stringline tests that the Gardners conducted returned different results to Trilogy. They posit that pruning may have caused the tree to move after the Trilogy marker was installed. (b) they do not dispute that the existing fence needs to be replaced or that the existing retaining wall should be removed, rather both should be constructed in such a way that it accommodates the tree. (c) whilst they conceded that the tree causes some shading, they did not consider it to be onerous. -- 6 of 10 -- 7 (d) they deny that sooty mould damaged the existing fence or is apt to damage any future fence. They contend that the fence is degrading naturally as all timber fences inevitably do. Relevant law [20] Under s 66 of the Act, the Tribunal may only make an order about a tree affecting the neighbour’s land if it considers such an order is appropriate to: (a) 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. [21] If future serious injury, serious damage or interference is contended, it must be likely to occur within the next 12 months.1 [22] Notably, s 71 of the Act provides that the primary consideration (for QCAT) is the safety of any person. Findings Is an order necessary to prevent serious injury to any person within 12 months? [23] I am not persuaded that an order is necessary to prevent serious injury to any person within the next 12 months. Mrs Andrews’ contentions that the deteriorating health of the tree poses a risk of future tree failure and injury to her children are not supported by the evidence of either assessor. Both assessors agree that the tree is responding well to the plant healthcare program and is not in imminent danger of toppling. Is an order necessary to remedy, restrain or prevent serious damage to the neighbour’s land or property within 12 months? [24] I do not consider that there is sufficient evidence before the Tribunal for me to conclude that an order is necessary to remedy, restrain or prevent serious damage to Ms Andrews’ land or property within the next 12 months. After excavation of Mrs Andrews’ land and severe pruning of the tree occurred in December 2022, there are no longer any tree roots that pose the risk of compromising the structures on her land. Is an order necessary to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the respondent’s land? [25] During the hearing, much time was devoted to the issue of the accuracy, or otherwise, of the blue marker that Trilogy placed on the tree. I find that the blue marker accurately indicates where the tree intersects with common boundary. I do not place any credence on the accuracy of the stringline method adopted by the Gardners. With all due respect to the Gardners, they are not registered surveyors within the meaning of the Surveyors Act 2003 (Qld) and are not qualified to determine property boundaries. 1 The Act, s 46(a)(ii). -- 7 of 10 -- 8 [26] It is plain to me that the location of the tree on the common boundary precludes the erection of a new dividing fence without scalloping or building it on either side of the tree. I accept Mrs Andrews’ submissions that a fence constructed in such a fashion would be ugly and incongruent with neighbouring fences. In my opinion, it is fundamental to a person’s enjoyment of their land that they ought not be compelled to live with a large tree projecting through their fence. Further, I am satisfied, after viewing photographs provided by Mrs Andrews, that the tree’s roots are protruding through the bottom of the palings of the existing fence. The damage that the roots have caused to the fence is obvious.2 It is doubtful that any gardens could be planted, let alone thrive, whilst the tree’s roots remain in situ. [27] I find that Mrs Andrews’ inability to plant gardens on her land or erect an aesthetically pleasing fence on the common boundary, amounts to a substantial, ongoing, and unreasonable interference with her enjoyment of her land. Further, I consider that the only means by which that interference can be sufficiently ameliorated is for the Tribunal to order that the tree is removed. In this case, the construction of a fence and gardens, and the retention of the tree, are simply incompatible objectives. [28] There are further reasons the tree must be destroyed. Photographs from 2015, 2021, 2022 and 2023 appear to show a significant quantity of leaf litter from the tree scattered on Mrs Andrews’ lawn, pool, paths, and garden furniture.3 Notably, the pool photographs were taken in 2023. Clearly, significant pruning of the tree in December 2022 did not arrest its leaf drop. There appears to not be much of a difference between the quantity of the leaf litter between the photographs of the yard taken in 2015 and those taken in 2023. I infer therefore that future pruning is unlikely to meaningfully alleviate leaf drop. [29] Even if the inference I have drawn above is wrong, the evidence of both assessors was that pruning of the tree’s canopy of Mrs Andrews’ land was not recommended until two to three years had passed. It is patently unreasonable that Mrs Andrews must wait so long for relief. I therefore find that the leaf litter substantially and unreasonably interferes with Mrs Andrews’ enjoyment of her land because it unsightly and requires frequent removal. The interference is ongoing insofar as it is repeated for several months every year. [30] There are photographs of black sooty mould on Mrs Andrews’ deck chairs and pool umbrellas. Those photographs were taken after the tree was pruned in December 2022. The umbrellas furthest away from the tree do not have mould on them. I infer therefore that it is the tree that is causing the mould. The fact that Mrs Andrews’ deck chairs, which are situated near the trees, are also covered in mould, strengthens the veracity of that inference. I find that that the black sooty mould substantially and unreasonably interferes with the applicant’s enjoyment of her land because it is unsightly and requires her to replace her furniture, which is financially burdensome and inconvenient. [31] I am mindful that s 72 of the Act provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. In this case, I am not satisfied that issues relating to the tree can be 2 Applicant’s written submissions, Appendix 4. 3 Ibid, Appendix 9. -- 8 of 10 -- 9 satisfactorily resolved. I have found that the construction of a fence and gardens, and the retention of the tree, are simply incompatible objectives. [32] Further, I am not satisfied that the two-to-three-year delay before the tree can be pruned is reasonable. Even if pruning could occur earlier, I am not persuaded that it will meaningfully ameliorate the deleterious impacts of the tree dropping leaves and producing sooty mould. [33] Section 73 of the Act requires the Tribunal to consider various general matters, my findings in respect of which are set out below: (a) the tree is located close to Mrs Andrews’ pool and the existing fence and has the potential to adversely impact those structures. (b) carrying out work on the tree requires no consent or authorisation under another Act. (c) the tree has no historical, cultural, social, or scientific value. (d) the tree contributes positively to the natural landscape and the scenic value of the land on which it is located. (e) the tree makes no contribution to public amenity. (f) the tree contributes positively to the amenity of the land on which it is located. It provides shade, imparts a cooling effect and is aesthetically pleasing to look at. However, I note that there is already a row of amenity trees that are larger on the subject tree on the Gardners’ land that will provide shade and cooling. In my view, that balances the loss of amenity caused by the removing the tree. (g) the tree is a category 3 weed. There is a plethora of literature which depicts the Chinese Elm as a destructive and undesirable tree. [34] Where unreasonable interference with the use and enjoyment of a person’s land is alleged, s 75 of the Act requires me to consider various matters. My findings on those matters are set out below: (a) I do not consider that there is anything other than the tree that has contributed or is contributing to the interference. (b) the Gardners have taken no steps to maintain the tree since pruning it in January 2016 despite knowing for years the adverse impact it was having on their neighbours. I have little confidence they will adequately maintain the tree going forward if it is retained. (c) Mrs Andrews’ land is not particularly large and the tree looms over it. (d) I consider that the detriment the tree causes Mrs Andrews outweigh arguments favouring its retention, despite it existing prior to Mrs Andrews acquiring her land. [35] For completeness, I am satisfied of the requirements before an order may be made stated at s 65 of the Act. Relevantly: (a) I am satisfied that Mrs Andrews has made genuine and reasonable attempts to resolve the dispute, even going to far as to pay for the full costs of removing the tree and erecting a new fence. -- 9 of 10 -- 10 (b) concerning the issue of Mrs Andrews’ land being affected because branches from the tree overhang the land, I am satisfied about the following: (i) the tree’s branches extend to a point over Mrs Andrews’ land that is at least 50cm from the common boundary; and (ii) Mrs Andrews cannot properly resolve the dispute under part 4 of the Act. (c) Mrs Andrews has given the Gardners a copy of the application for a tree dispute in compliance with s 63 of the Act. [36] For the reasons articulated above, I propose to make an order for the removal of the tree. I see no reason why the Gardners, as the tree keeper, ought not bear the entire costs of doing so. I also intend to award Mrs Andrews her costs for bringing the application for a tree dispute. [37] Mrs Andrews seeks orders from the Tribunal pertaining to the construction of a new fence and a retaining wall. The tribunal has no jurisdiction to make such orders in a proceeding for a tree dispute. However, I intend deliver a decision and reasons for Q759-23, concerning the fence, in due course. The Gardners’ application for compensation [38] The Gardners have applied to the Tribunal for monetary compensation, or alternatively costs, for the health care measures they took following the pruning and removal of the tree’s roots that Mrs Andrews undertook in December 2022. In my view, the Gardners are not entitled to such compensation. There is nothing in the Act which empowers the Tribunal to make such an order for the benefit of a ‘tree keeper’. Additionally, the costs that the Gardners incurred were not ‘costs of the proceeding’, in the sense that they were not incurred to advance the Gardners’ position in the proceeding. Rather, they were expenses incurred to preserve the tree before the proceeding commenced. -- 10 of 10 --