Easey & Anor v Ho & Anor [2024] QCAT 441

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Easey & Anor v Ho & Anor [2024] QCAT 441 PARTIES: MICHAEL ANDREW EASEY (applicant) ANNE-LOUISE DOROTHEA EASEYY (applicant) v POON CHUNG HO (first respondent) LISA BLANKENSHIP (second respondent) APPLICATION NO/S: NDR068-23 MATTER TYPE: Other civil dispute matters DELIVERED ON: 23 September 2024 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Lisa Blankenship is removed as a respondent. The application for a tree dispute is dismissed. CATCHWORDS: TREE DISPUTE – Jurisdiction of Tribunal – where second respondent not the registered owner of the lot where the tree was situated prior to removal - whether second respondent is a “tree keeper” under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where dispute relates to a hibiscus tree and a fig vine – where trees removed by tree-keeper prior to sale of land to first respondent – where damage caused by trees was sustained before sale of land by tree-keeper to first respondent – whether the tribunal can make an order about damage caused prior to the sale of the property Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 45, s 47 s 48, s 49, s 68, s 72, s 83, Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 42 -- 1 of 9 -- 2 Qui & Anor v Khoo & Anor [2024] QCAT 265 Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218 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] This proceeding is about a tree dispute. In accordance with directions by the Tribunal, the matter is to be determined on the papers. [2] The Easeys complain about a fig vine and a hibiscus tree (the trees) situated on an adjoining property. They say that the trees have damaged property on their land, specifically a dividing fence and a retaining wall. They also make other complaints about the trees. The applicants have expressed concern about potential damage to the foundations of the dwelling on their land. [3] Ms Molinari was the owner of the adjoining property when the proceeding was commenced. It is not controversial that on or about 9 October 2023 Mr Ho entered into a contract to purchase Ms Molinari’s property. On 21 November 2023 Mr Ho was registered on the title as the owner of the property. [4] Mr Ho was joined as a respondent on 28 August 2024. At that time Ms Molinari’s daughter, Ms Blankenship, was also joined as a respondent and Ms Molinari was removed as a respondent. I will return to the issue of Ms Blankenship’s role in the proceeding later in these reasons. Jurisdiction [5] I make the following findings about jurisdiction: (a) The Easeys are neighbours;1 (b) Mr Ho is a tree-keeper;2 (c) The fig vine and hibiscus tree are each a ‘tree’.3 [6] The Tribunal has jurisdiction to decide the dispute. Consideration The law [7] Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) a ‘tree keeper’ means, inter alia, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994, the registered owner of the lot under that Act.4 [8] The ND Act contains a number of provisions relevant to circumstances in which a tree keeper sells the land on which a tree is situated. 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) s 49. 2 Ibid s 48. 3 Ibid s 45. 4 Ibid s 48(1)(a). -- 2 of 9 -- 3 [9] Section 83 of the ND Act deals with circumstances in which a tree-keeper proposes to sell land on which a tree is situated and in relation to which an application for a tree dispute has been filed or an order made by the Tribunal about the tree: If a person is selling land affected by an application or order, the person must give the buyer a copy of the application or order before the buyer enters into a contract of sale for the land unless the person has a reasonable excuse. [10] Section 83 contemplates two scenarios that might pertain at the time a person is entering into a contract to purchase land on which trees are situated: the first is where a proceeding for a tree dispute has been commenced in the tribunal but no final decision made; the second is where a final decision has been made. [11] In respect of the first scenario, if the seller provides to the buyer a copy of the originating tree dispute application, the buyer is joined as a party to the proceeding upon signing the contract. If the seller does not give to the buyer a copy of the application, the purchaser may terminate the contract prior to settlement.5 The ND Act provides no consequences for the seller if the seller fails to give the buyer a copy of the application and the buyer does not terminate the contract. [12] In respect of the second scenario, if the seller provides to the buyer a copy of the final order before the contract of sale is entered into, the buyer is bound by the order to the extent the order has not been complied with by the seller. If the seller does not provide the buyer with a copy of the order before the contract of sale is entered into: (a) the buyer may terminate the contract prior to settlement; (b) if the buyer does not terminate the contract, and the seller has not before settlement carried out the work the subject of the order, the seller remains liable to carry out the work. [13] Section 68(1) of the ND Act provides that the tribunal may make an order in relation to a tree even if the tree has been completely removed. [14] By s 68(2) the tribunal may not make an order to remedy damage caused by a tree that has been completely removed, if the tree-keeper has sold the land on which the tree was situated since the damage was caused.6 [15] Section 68(2) confines the circumstances in which the tribunal may make an order in relation to a tree that has been completely removed. The section is expressed in the past tense and relates to damage caused in the past by a tree that has been removed on land which the tree-keeper has sold. The section contemplates that these are all past events that occurred when the tree keeper was the owner of the land.7 The ‘tree- keeper’ in s 68(2) is the person who, for the purposes of s 48(1), was a ‘tree-keeper’ at the time a tree caused damage, and who has since sold the land on which the tree was situated. The section has a significant consequence for the owner of the land on which the (removed) tree was situated. The current owner of land on which a tree was previously situated and which caused damage to adjoining land or property on the land before the current owner purchased the land, cannot be ordered to remedy the damage. There is a clear legislative policy intent behind s 68(2). It would be inequitable for a person who is the owner of land to be responsible for damage to 5 Ibid, s 86(2). 6 ‘Sold’ means the day on which title is transferred – s 68(3). 7 See for example Qui & Anor v Khoo & Anor [2024] QCAT 265 where, despite damage having been caused by trees before the respondents became the owners of the land, the trees that had caused the damage had not been removed prior to the date of purchase with the result that s 68(2) did not apply. -- 3 of 9 -- 4 adjoining land or property caused by a tree which was removed before the person became the owner of the land in circumstances where the damage was also caused before the person became the owner of the land. [16] The term ‘completely removed’ is not defined in the ND Act. The words are used in their general or ordinary sense. ‘Completely’ means ‘having all its parts or elements; whole; entire; full’ and ‘removed’ as a verb means ‘to move from a place or position; take away; take off.’8 [17] The ND Act refers, in various sections, to the removal of trees.9 Most of these references are to the complete removal of a tree. The word ‘completely’ in s 68 clearly has work to do. The removal of a tree must be something more than, for example, cutting a tree down to a stump. Subject to what I have to say later in these reasons, the ‘complete removal’ of a tree involves, insofar as is it practicable for the tree-keeper to do so, removal to such an extent that the regrowth of the tree is prevented. This might, in an appropriate case, involve stump grinding and poisoning. Of course, every case will depend on the particular facts and attempts to define what might constitute ‘complete removal’ should be avoided. The evidence and findings of facts [18] The evidence of the parties is contained in various submissions and other documents filed in the Tribunal. So far as Tribunal proceedings are concerned, the term “evidence” refers to any relevant information; generally, the Tribunal is not bound by the rules of evidence or practices of the courts.10 [19] The evidence before the Tribunal is principally by the Easeys and the respondent’s daughter, Ms Blankenship. Ms Molinari is elderly and now resides with her daughter. [20] The complaints by the Easeys about the trees are long standing. They complain that the fig vine has grown along, over, through and under the dividing fence between their property and the adjoining property. They say that the vine and the roots of the vine have damaged the dividing fence and a retaining wall and have travelled beneath the surface of their land potentially damaging foundations and retaining walls on their land. The Easeys also complain that the roots of the fig vine and the hibiscus have lifted and cracked pavers on their land. [21] Before the Tribunal is a letter from Ms Molinari’s solicitors to the Easeys dated 20 April 2023.The solicitors refer to action taken by Ms Molinari in October 2022 and January 2023 to engage an arborist to ‘remove and/or poison the vine’. Before the Tribunal is a letter from the Easeys to Ms Molinari’s solicitors in response. In that letter they refer to Ms Molinari’s ‘recent efforts to remove and poison the fig vine’ however go on to say that ‘the roots and stumps are still in place and continue to grow shoots, and continue to damage the fence and our garden.’ The Easeys state that they require ‘all tree stumps and roots … to be ground to completely kill the trees along the fence and in our gardens.’ [22] The Easeys say that on 21 July 2023 they reached an agreement with Ms Molinari about proposed dividing fencing works. The agreement provided, inter alia, that Ms 8 Macquarie Dictionary – online 9 th edition. 9 Section 47(2), s 68, s 69(b), s 72, 10 Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218. -- 4 of 9 -- 5 Molinari would engage a licensed arborist to grind and remove the ‘remaining fig and hibiscus roots along the boundary’. [23] The Easeys subsequently filed written submissions dated 19 October 2023. In the submissions the Easeys refer to ‘… since the Trees were removed from the fence since early 2023 resulting in the boundary fence missing palings ….’. In their submissions, the Easeys say ‘In January 2023 the Respondent took some steps to remove the Trees from the fence, poisoned and removed some roots. Since that time we have continued to advise the Respondent that despite their claims that they had removed the trees, they continued to grow. Recent photos provided showed the trees continued to grow until we had it removed on 30 August 2023. We continue to monitor and poison obvious roots to ensure it does not grow back.’ (underlining added) The Easeys refer to the agreement reached with Ms Molinari in July 2023 and say ‘Rather than delay the new fence being built, we had to pay to remove the remaining fig vine and roots. Our quote was originally for 2 hours work to remove soil, which ended up taking 7 hours as they had to dig out the fig roots.’ The Easeys say that fig vine roots continue to grow across their property. [24] Before the Tribunal is a quote from Brisbane Tree Experts dated 17 August 2023 addressed to Ms Molinari’s managing real estate agent referring to the following scope of works: (a) Grinding to liaise with entire fence removal; (b) With client help, pipe to be moved out the way to help grind creeper fig running along bottom of fence as best as possible; (c) Multiple areas all the way down side fence; (d) Grind old hibiscus stump in side garden. [25] Ms Blankenship says that Brisbane Tree Experts carried out the work referred to in the quote. She says in submissions filed after a directions hearing on 27 September 2023 that the fig vine and hibiscus had been poisoned and removed and that the hibiscus stump and fig vine roots were completely ground out and removed along the boundary fence line. I note that Ms Blankenship’s evidence is consistent with the quote from Brisbane Tree Experts. [26] The only expert evidence before the Tribunal is a short report dated 24 December 2021 by a Mr Quig of Eco Arboriculture Australia.11 It is unknown whether Mr Quig has any formal qualifications. Mr Quig confirms the subject trees to be a fig vine and hibiscus tree. He opined that the damage to the pavers on the Easeys land was caused by the hibiscus tree and that the fig vine ‘would be adding to the damage’. Mr Quig opined that the only solution was to remove everything along the fence line and either dig out the stumps or stump grind the area. I note that the works recommended by Mr Quig are consistent with the works referred to in the Brisbane Tree Experts’ quote. [27] In November 2023 Ms Molinari applied to have the proceeding dismissed. The grounds of the application were: (a) Ms Molinari had sold the property; 11 Report dated 24 December 2021. -- 5 of 9 -- 6 (b) The hibiscus tree was removed in October 2022; (c) The fig vine was removed in January 2023; (d) The hibiscus stump was ground out and any small residual vines removed and ground out along the boundary fence line in August 2023; (e) The trees had not caused any damage; (f) The operation of s 68(2) of the ND Act meant that the Tribunal could not make an order about the alleged damage as the damage had been caused before Ms Molinari had sold the property. [28] In response to the application the Easeys said the fig vine roots had not been completely removed and that the roots were still evident on their land. It is relevant to quote from the Easeys’ submissions: In August 2023 the Respondent agreed to remove the remaining fig vine and roots … in the Directions hearing on 27 September 2023 the Respondent indicated that she directed the arborist to remove only certain areas/amount of fig vine and roots as it would cost her more money to remove it all. Therefore, the fig vine and roots remained along both the boundary fence and on our property… To make way for the construction of the new boundary fence … we … had to engage an earthmover to remove the necessary fig vine and some roots along the fence boundary. However, we did not have the time or funds to remove all the roots, which remain across our property. … there are numerous/substantial fig vine roots still evident on our property. Specifically, these are across our back lawn and under our front and rear paving… Also despite repeated poisoning … new fig vine shoots continue to appear. Notably the … fig vine was not completely removed from the Respondent’s rear fence which extends to the rear corner of our property … we can still see the fig vine growing under the gap in the new boundary fence and we continue to poison it to stop it growing into our property. [29] The application to dismiss was refused. [30] The applicants have not produced a copy of the transcript of the directions hearing on 27 September 2023 referred to in their submissions. In the absence of such evidence, I am unpersuaded by the Easeys’ submission that the respondent removed only part of the fig vine and roots in order to save money. I prefer the evidence of the respondent to which I have earlier referred which is supported by the quote from Brisbane Tree Experts. I accept the evidence of the respondent in this regard. [31] I find that Ms Molinari sold the land with title passing to Poon Chung Ho on 21 November 2023. It is unclear why Ms Molinari’s daughter, Ms Blankenship, was joined as a respondent. Ms Blankenship is not, and never has been, a ‘tree-keeper’ within the meaning of that term in s 49(1) of the ND Act. Ms Blankenship cannot therefore be the subject of an order pursuant to s 66(5)(e) or (f). There is no jurisdiction conferred upon the Tribunal by the ND Act that would enable an order to be made against Ms Blankenship. Accordingly, Ms Blankenship should be removed as a respondent.12 12 QCAT Act, s 42(2)(b). -- 6 of 9 -- 7 [32] I find that before Mr Ho became the registered owner of the property the hibiscus tree had been completely removed. [33] I find that before Mr Ho became the registered owner of the property the fig vine and roots situated on Mr Ho’s land, along the boundary with the Easeys’ land, had been removed. [34] I accept that some roots from the fig vine remain on the Easeys’ land. This is to be expected. Roots from trees do not observe property boundaries. I accept that some fig vine roots are present across the back lawn of the Easeys’ land and under paved areas. I accept that, from time to time, the Easeys’ are required to apply poison to the fig vine roots on their land. Although there is no direct evidence on point, I infer that the roots are predominantly underground. While I accept that fig vine shoots continue to appear on the Easeys’ land, there is no evidence as to the extent or frequency of the shoots appearing. It seems to me however that the roots can hardly be of more than nuisance value. I use the word nuisance in its every day, and not legal, sense. [35] The determination of the dispute turns on whether the hibiscus and the fig vine were completely removed before Mr Ho became the registered owner of the land. It does not appear to be contentious that the hibiscus was removed and that any damage caused by the hibiscus manifested before Mr Ho became the registered owner of the land. Accordingly, by operation of s 68(2) of the ND Act, no order can be made about such damage. [36] That leaves the issue of the fig vine. I observed earlier that whether a tree has been completely removed will depend upon the particular facts of the case. [37] Section 68 is, in my view, confined in its operation to the steps a tree-keeper can reasonably practicably take on the tree-keeper’s land to remove a tree. As I have earlier observed, tree roots traverse property boundaries. Tree roots can travel many metres from the base of a tree. It is quite conceivable that in the confines of smaller suburban parcels of land, the roots from a large tree may travel into a number of adjoining parcels of land. In my view, s 68 must be given a meaning that avoids absurdity and results in the imposition on a tree-keeper of an obligation that cannot reasonably practicably be discharged. A tree-keeper can only undertake work on a tree situated on their land. A tree-keeper has no right to enter upon adjoining land to undertake work absent the consent of the neighbour. Of course, neighbouring owners may agree that work involving the removal of roots from a tree on the tree-keeper’s land, be undertaken on their land. But this, in my view, is not what is contemplated by s 68. Section 68 is confined in its operation to the removal by a tree-keeper of those parts of a tree situated on the tree-keeper’s land. To construe the section otherwise would have the potential to visit significant inequity upon a purchaser of land such as Mr Ho. If, for example, a neighbour refused a tree keeper access to remove tree roots from their land and the tree keeper had otherwise completely removed the tree, it cannot have been the intention of the legislature that an incoming purchaser of the tree keeper’s land would be liable for previously caused damage simply because the tree roots remained in situ on the neighbour’s land. [38] I have found that Brisbane Tree Experts undertook the removal of the hibiscus and fig vine along the boundary with the Easeys’ land. I am satisfied that further work was subsequently undertaken by the Easeys on their land involving the use of an excavator to remove remaining parts of the fig vine and roots along the boundary between the Easeys’ land and the adjoining land. This work was undertaken to facilitate the -- 7 of 9 -- 8 construction of a dividing fence. While there may remain roots from the fig vine on the Easeys’ land, for the reasons I have set out, s 68 does not extend in its operation to the removal of the roots present on the Easeys’ land. Ms Molinari, as the then owner of the adjoining parcel of land, had no legal right to enter upon the Easeys’ land and undertake work to remove the roots. Indeed, it seems unlikely that the Easeys’ would have consented to such work if it had involved the excavation of their yard to remove every last remnant of fig vine root. Nor, on the present evidence, would such an exercise be warranted. There is little cogent evidence from the Easeys about just how the remaining fig vine roots on their land impact the land or property on the land. [39] The Easeys also complain about the fig vine growing along the rear boundary of the adjoining lot. There is no evidence that this is the same vine as that previously situated along the boundary with the Easeys’ land and which has been removed. Indeed, it is difficult to see how it could be in light of the evidence of Ms Blankenship and the Easeys’ about the comprehensive removal of the fig vine. As the applicants, the onus is upon the Easeys’ to prove their claim on the balance of probabilities. The only expert evidence relied upon by the Easeys, to which I have earlier referred, is of limited relevance. It is several years old and predates the removal of the trees. Certainly there is no evidence from an appropriately qualified arborist that the fig vine at the rear of the adjacent property is the same vine as that complained of by the Easeys as being the cause of the alleged damage to their land and property on the land. [40] I conclude that, for the purposes of s 68 of the ND Act, the trees the subject of the dispute were removed, and any damage caused by the trees to the Easeys’ land and property on the land was sustained, before Ms Molinari sold the land to Mr Ho. [41] Accordingly, by operation of s 68(2) of the ND Act the Tribunal cannot make any order to remedy damage caused by the trees. It is therefore unnecessary for me to address the question of the nature and extent of any such damage. [42] The Easeys seek further relief in the following terms: engaging an arborist to poison and remove all the Respondent’s fig vine and roots continuing to grow across our back yard and determine how to mitigate damage from trees that still exist on the respondent’s property. [43] I have found that the trees the subject of the proceeding were removed by Ms Molinari before she sold the property to Mr Ho although I accept that some fig vine roots remain on the Easeys’ land. [44] Section 66(2) of the ND Act provides as follows: (2) QCAT may make the orders it considers appropriate in relation to a tree affecting the 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. [45] Given the comprehensive removal of the fig vine along the property boundary between the Easeys’ land and Mr Ho’s land, it is not clear whether the fig vine roots -- 8 of 9 -- 9 have any connection with Mr Ho’s land. It is conceivable that they are wholly situated on the Easeys’ land. However even if the roots emanate from Mr Ho’s land there is no suggestion that the roots have the potential to cause serious injury to any person. There is no cogent evidence that the remaining roots will cause serious damage to the Easeys’ land or property on their land. If damage had been caused by the roots, this occurred before Ms Molinari removed the trees and sold the land to Mr Ho. Nor am I satisfied that the remaining fig vine roots interfere with the Easeys’ use and enjoyment of their land in a substantial, ongoing and unreasonable way. As I have earlier observed, the fact that the Easeys’ are required from time to time to apply poison to roots as they appear is a relatively minor inconvenience. [46] It follows that there is no basis for an order to be made about the trees pursuant to s 66(2) of the ND Act. Conclusion [47] I make the following orders: (a) Lisa Blankenship is removed as a respondent. (b) The application for a tree dispute is dismissed. -- 9 of 9 --