Cunningham and Anor v Rivlin [2024] QCAT 320

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cunningham and anor v Rivlin [2024] QCAT 320 PARTIES: NIGEL FRANCIS CUNNINGHAM (applicant) PETER BURTON FITTOCK (applicant) v MYLES RIVLIN (respondent) APPLICATION NO/S: NDR070-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 5 August 2024 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The application for a tree dispute is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether leaf litter amounted to substantial, ongoing and unreasonable interference ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where leaf litter was alleged to have blocked a downpipe Neighbourhood Disputes (Dividing Fences and Trees) Act 2019 (Qld), s 46(a)(ii), s 66(2)(b)(ii), s 66(5)(f), s 74(1)(b) Boater & Anor v Kwok & Anor [2023] QCAT 144 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] Nigel Cunningham and Peter Fittock (‘the neighbours’) are the owners of a property in inner-city Brisbane. Dr Rivlin is the owner of the adjoining property (‘the tree- keeper’). -- 1 of 4 -- 2 [2] The neighbours suffered damage to their property on 23 November 2021 when water entered the lounge room of their property through the split system air-conditioner. They seek the cost of repair work to the air-conditioner overflow in the amount of $1,070.00 from the tree-keeper. [3] Directions were given on the 15 March 2023 for the matter to be set down for an on the papers hearing after 23 June 2023, and the matter came before me on 7 March 2024. [4] The neighbours allege in their application that there are three (3) trees on the tree- keepers property, which are situated adjacent to the boundary of their property; and that the trees overhung the boundary and extended to their house. [5] On 23 November 2021 the neighbours caused a plumber, a company trading as ‘Plumbing Patrol’, to attend their property, as water was entering through an air- conditioner head unit in the lounge room. [6] The plumber described the work completed on its invoice as follows:1 called out 23/11/21 for water flooding the house cut air con line to prevent water going inside went back 25/11/21 alter the pipework to prevent this happening again run the drain machine down but could not get through, but water started to drain run down the drain from the grates up top off the retaining wall they are clear to the back fence there is a broken flexie pipe up near the retaining wall which has not been fixed it lets water at the drain in big rains [7] The plumber invoiced for the work as follows:2 Description The Price 1 Materials $25.00 1 After hours call-out $330.00 6.5 Labour $715.00 Subtotal $972.73 GST $97.27 Total charge $1070.00 [8] The neighbours allege that the cause of the event was as follows:3 My plumbing issue is a direct result of the leaves and flowers the respondent’s trees filling and blocking my gutter and downpipes causing the issue. [9] The tree-keeper submitted that the neighbour had contacted him many months after the alleged event, and provided no direct link between how the neighbour claimed 1 Plumbing Patrol Invoice dated 24 January 2022. 2 Ibid. 3 Email Nigel Cunningham to the Tribunal 8 December 2022. -- 2 of 4 -- 3 (the tree-keepers) leaves and flowers had blocked his gutters and damaged his living room, nor had the neighbour provided evidence of the tree debris blocking his gutters.4 [10] The trees were trimmed back to the property boundary by the tree-keeper. Discussion [11] The neighbours have provided photographs and a video which show the trees overhanging the wall of the house, and show water pouring out from the inside air- conditioner head unit. [12] Section 46(a)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) provides that land is affected by a tree if causes serious damage to any property on the land or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land. [13] Section 66(2)(b)(ii) of the Act provides that the Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land to remedy serious damage to the neighbour’s land or any property on the neighbour’s land, and may, under section 66(5)(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. [14] In considering a claim for serious damage to property on the neighbour’s land, the Tribunal may consider, under section 74(1)(b), any steps taken by the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage. [15] It is well established that the mere dropping of leaf litter by trees in itself is not sufficient to support a claim for compensation under the Act. In Finch v Grahle the Tribunal held that:5 Generally speaking, leaf litter will not, of itself, be sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of land. [16] The neighbours have not provided any evidence as to any regular maintenance they undertook to clear the gutters and downpipes of the natural accumulation of a reasonable amount of leaf litter. [17] The report of the plumber does not make any clear reference to the cause of the blockage of the downpipe. [18] The neighbours have not provided evidence that the cause of the blocking of the downpipe was the result of an unreasonable litter load from the trees, and have not provided evidence of reasonable steps they took to prevent the damage by regular maintenance. [19] I am not satisfied that the neighbours have established that the trees constituted a substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of land, and caused serious damage to the property on the neighbour’s land. [20] I find that the neighbours have not established their claim for damages to the required civil standard of the balance of probabilities. 4 Response filed 28 June 2023. 5 [2017] QCAT 80 at [24]; followed in Boater & Anor v Kwok & Anor [2023] QCAT 144. -- 3 of 4 -- 4 [21] The neighbours therefore cannot succeed in their claim, and the application is dismissed. -- 4 of 4 --