Austinvale Body Corporate v Body Corporate of Jasmin Terrace [2024] QCAT 256

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Austinvale Body Corporate v The Body Corporate of Jasmin Terrace [2024] QCAT 256 PARTIES: AUSTINVALE BODY CORPORATE (applicant) v THE BODY CORPORATE OF JASMIN TERRACE (respondent) APPLICATION NO/S: NDR101-22 MATTER TYPE: Other Civil Dispute Matters DELIVERED ON: 12 June 2024 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member S M Burke ORDERS: 1. The Respondent, The Body Corporate of Jasmin Terrace, undertake at its cost the maintenance of and trimming of the trees the subject of this application on a 12 monthly basis. CATCHWORDS: NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 72, s 76 APPEARANCES & REPRESENTATION: Hearing on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 REASONS FOR DECISION [1] The Applicant, Austinvale Body Corporate (‘Austinvale’), and the Respondent, the Body Corporate for Jasmin Terrace (‘JT Body Corporate’), own adjoining land. [2] Proceedings have been commenced by Ms Elena Josephsen, as the owner of Lot 2 at 6 Anthony Avenue Mooloolaba Queensland relating to an application for a tree dispute dated 11 May 2022 seeking the following orders: (a) an order that JT Body Corporate – (i) remove trees; (ii) remove or prune the branches of trees; -- 1 of 7 -- 2 (iii) remove or prune the roots of trees; (b) pay the costs for carrying out these orders. [3] The JT Body Corporate is the owner of property at 52 Toorumbee Drive, Mooloolaba which adjoins 6 Anthony Avenue Mooloolaba. [4] By directions made on 16 August 2022, the name of the Applicant was corrected to The Austinvale Body Corporate with Elena Josephsen representing the Applicant. The Relevant Legislation [5] This Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.1 [6] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides, pursuant to s 52, that an owner of land on which a tree is situated (‘the tree- keeper’) is responsible for: (a) cutting and removing any branches of the tree that overhang a neighbour’s land; (b) ensuring that the tree does not cause: (i) serious injury to a person; or (ii) serious damage to a person’s land or any property on a person’s land; (iii) substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land. [7] Section 46 of the Act provides that land is affected by a tree at a particular time if: (a) any of the following applies – (i) branches from the tree overhang the land; (ii) the tree has caused, is causing, or is likely within the next 12 months to cause – A. serious injury to a person on the land; or B. serious damage to the land or any property on the land; C. substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and (b) the land – (i) adjoins the land on which the tree is situated; or (ii) would adjoin the land on which the tree is situated if it were not separated by a road. [8] The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land. [9] Further, pursuant to s 49 of the Act, for present purposes, a neighbour in relation to a particular tree or the tree-keeper for a particular tree is the body corporate for the 1 Section 61 The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 -- 2 of 7 -- 3 community titles scheme if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997 (Qld).2 [10] Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act. [11] Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land – (a) to prevent serious injury to a 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. [12] Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, an order may do any of the following – (a) require or allow the tree-keeper or neighbour to carry out work on the tree on the tree on a particular occasion or on an ongoing basis; Examples – • an order that requires the removal of the tree within 28 days • an order that requires particular maintenance work on the tree during a particular season every year • an order that requires particular work to maintain the tree at a particular height, width or shape. (b) require that a survey be undertaken to clarify the tree’s location in relation to the common boundary; (c) require a person to apply for a consent or other authorisation from a government authority in relation to the tree; (d) authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying our an order; (e) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; (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; (g) require a report by an appropriately qualified arborist. [13] Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters: 2 Section 49(1)(b) of the Ac -- 3 of 7 -- 4 (a) the neighbour has made reasonable effort to reach agreement with the tree-keeper; (b) the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process; (c) to the extent the issue relates to land being affected because branches from the tree overhang the land – (i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and (ii) the neighbour cannot properly resolve the issue using the process under Part 4; (d) the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived. Compliance with Section 65 of the Act [14] Evidence, by way of correspondence, has been provided by Ms Josephsen indicating that attempts to resolve the issues with JT Body Corporate have been instigated by Ms Josephsen for many years. [15] Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper I am satisfied that the requirements of s 65 of the Act have been fulfilled. The Dispute [16] Austinvale asserts that trees on the boundary between its property and the property owned by JT Body Corporate: (a) consist of branches which are equivalent to three storeys in height and run about 5 to 6 metres along the boundary fence; (b) are a nuisance in that the leaves from the branches cover ¾ of the backyard owned by Ms Josephsen; (c) are a safety concern particularly during wet weather and cyclonic conditions; (d) are causing serious damage to the small brick wall in that the root system is invading the drainage system on Austinvale property; (e) present extensive and constant clogging of the gutter system on the property of Ms Josephsen. [17] Pursuant to directions of the Tribunal dated 22 May 2022, Ms Josephsen was required to file a copy of the current title searches for the properties the subject of the dispute and a copy of the registered plan for the property at 52 Toorumbee Drive Maloolaba identifying: (a) the location of each tree the subject of the application for a tree dispute; and (b) the species of each tree. [18] By 2 June 2022, Ms Josephsen provided the documents required by the Tribunal directions of 22 May 2022. The trees the subject of the complaint have been identified as Syncarpia Glomulifera, commonly known as turpentine trees or yanderra. The turpentine tree grows into a large straight-trunked tree up to 45 to 55 metre in height. -- 4 of 7 -- 5 Flowering of the tree takes place in August to December with cream flowers fused in groups of seven into compound flowerheads. The upper surface of the leaves is a dull dark green and the lower surface much paler. [19] By letter dated 25 August 2022, Ms Josephsen advised the Tribunal that there had been a trimming of the trees at Jasmin Terrace but that it was totally unsatisfactory with only 60% of the overhanging branches being removed. The remaining 40% produced falling leaves on her property and the root system continues to invade her backyard. [20] Ms Josephsen complains that the trimming has not been carried out in accordance with Australian Standards and that the trees continue to be growing to an intimidating height. [21] By letter dated 22 October 2022, Ms Josephsen again wrote to the Tribunal outlining her concerns and the lack of assistance from JT Body Corporate in maintaining the offending trees. [22] On 16 August 2022, the Tribunal directed that a tree assessor be obtained to assist in the determination of the application for a tree dispute. Austinvale agreed to the tree assessment and to their contribution to the cost, being $500 per party. [23] JT Body Corporate was directed to file any written submissions regarding the Tribunal’s intention to appoint a tree assessor and its attitude to the contribution to the costs by 30 August 2022. [24] On 29 August 2022, JT Body Corporate advised the Tribunal that it had, by its own volition responded to Austinvale’s concerns by having the services of an arborist assess and prune the trees the subject of complaint at its own expense. The letter further stated: In lieu of the Applicant pre-emptively agreeing to a QCAT appointed assessment before said pruning and whether they are indeed happy with the result. We, the Body Corporate of Jasmin Terrace, together with our arborist Elevated Trees, have done all we reasonably can to address the applicant’s concerns. As such, we would submit that a further tree assessment is both not required and liable to be unproductive as the tree has been pruned as far as Australian standards and structural integrity allow for. Photos of result attached. Further, should the applicant wish to proceed, and considering the amount we have already spent, we would argue that the cost of a QCAT appointed tree assessor be born wholly by the applicant. In our arborists own words (copy, pasted) from his invoice: Remove branches from turpentine and swamp box overhanging neighbouring property. It is recommended not to undertake any further pruning on these trees for 12 months as more than 30% of the canopy was removed to accommodate this request. The canopy shape to the north west was not taken right back to fence line as it helps to retain the integrity of the remaining upper canopy. As such, we would ask The Tribunal find that the matter has been more than adequately addressed, and therefore settled, and thenceforth, closed. [25] On 21 September 2022, the Tribunal directed that, given JT Body Corporate had informed the Tribunal that the tree work the subject of the application had been attended to, Austinvale was directed to notify the Tribunal whether the dispute had been resolved and the application withdrawn by 13 October 2022. Compliance with -- 5 of 7 -- 6 the directions of 16 August 2022 was waived pending further directions to be made after 13 October 2022. [26] On 14 December 2022, the Tribunal directed that each party was to contribute $500 towards the cost of a tree assessor to be appointed in respect of the application. It was further directed that each party was required to give access for the inspection and assessment by the tree assessor and all expert reports to be relied upon by the parties were to be provided to the assessor by 20 January 2023. [27] Austinvale duly made payment to the Tribunal of its contribution to the cost of the tree assessor. No further reports were provided by either party. [28] On 27 February 2023, further directions were made by the Tribunal as follows:- (a) JT Body Corporate would provide its contribution of $500 by 13 March 2023. (b) In the event that payment was not made by JT Body Corporate by the due date, Austinvale may then elect to either: (i) pay to the Tribunal the further $500 in respect of the cost of the appointment of the tree assessor and the Tribunal will appoint an assessor to provide a report concerning the tree the subject of dispute; or (ii) engage their own Level 5 AQF qualified arborist, who must undertake in writing to comply with the Tribunal’s requirements for Expert Witness to undertake an assessment and provide a report based on the provisions of Chapter 3 of the Act. (c) Austinvale must advise the Tribunal of its election within 7 days of the Tribunal’s written notice. (d) The report provided by the tree assessor will then be the only expert evidence able to be relied on in the proceedings. [29] On 4 April 2023, the Tribunal received notification from Austinvale dated 30 March 2023 requesting the return of the amount of $500.00 paid to the Tribunal for the engagement of an arborist and advising that Ms Josephsen would engage her own Level 5 AQF arborist on behalf of Austinvale. [30] On 26 November 2023, Ms Josephsen advised the Tribunal that the offending trees continued to constantly produce leaves in her backyard and that the trimming of the trees was still required because of the overhanging branches on her property. [31] Neither Austinvale nor Ms Josephsen has provided a report from a Level 5 AQF arborist. Accordingly, there is no evidence on which the Tribunal can rely to assess whether any action should be taken in relation to the effects of the alleged offending trees. [32] The photographic evidence clearly shows that the trees are of a very tall nature and that there has been some damage to the small brick wall in Ms Josephsen’s backyard. There is, however, no expert evidence that the trees are the cause of the damage to the garden border brick wall. [33] It is obvious that the height of the trees would be of concern to the occupants of both properties. For this reason, despite the lack of evidence from an expert to assist the Tribunal regarding the present safety of the trees, it is proposed that an order be made about the proper maintenance of the trees. -- 6 of 7 -- 7 [34] The proper maintenance of the trees rests entirely with JT Body Corporate. The trees were last assessed, on the evidence provided by JT Body Corporate, by Elevated Tree Removals and Maintenance on 24 August 2022. This is almost 2 years ago. A recommendation was made that the pruning of the trees not be undertaken for 12 months. It is implicit in this recommendation that the trees should be assessed for maintenance and necessary pruning approximately every 12 months. [35] Further, it would be reasonable to assume that the trees should be monitored and maintained on a regular basis. Orders [36] Based on the reasons provided above, the Tribunal determines that the following orders should be made:- (a) JT Body Corporate attend to the proper maintenance of the trees the subject of the application on a yearly basis commencing from July 2024; (b) the cost of the proper maintenance of the trees the subject of the application be born by JT Body Corporate. -- 7 of 7 --