Brunings v Trustee of the Property of Jai Patrick McMenz & Anor [2024] QCAT 224

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brunings v Trustee of the Property of Jai Patrick McMenz & Anor [2024] QCAT 224 PARTIES: LAWRENCE JAMES BRUNINGS (applicant) GLENDA MARGARET BRUNINGS (applicant) v THE TRUSTEE OF THE PROPERTY OF JAI PATRICK MCMENZ, A BANKRUPT (respondent) LYZA-JANE MAREE MCMENZ (respondent) APPLICATION NO/S: NDR040-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 28 May 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Application dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicants filed an application for a tree dispute – where a tree assessor provided a report – where there is no evidence of overhanging branches noted by the tree assessor in the report – where the applicants claimed to have regularly pruned the fence line to prevent overhanging branches – where the applicants had not made a reasonable effort to reach agreement with the tree keeper about overhanging branches prior to the application to the Tribunal – where the applicants claimed compensation for their work regularly pruning overhanging branches – where the applicants had exercised their common law right of abatement in lieu of Tribunal remedy and compensation Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 61, s 65(a), s 66(2), s 68(1) City of Richmond v Scantelbury [1991] 2 VR 38 -- 1 of 7 -- 2 Gillott v District Court of South Australia & Ors [2019] SASC 132 Johnson v Barry Park Investments Ltd [2019] NZHC 597 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] The parties are adjacent neighbours. The applicants, Mr and Mrs Brunings, complain that tree branches from the respondents’ property overhang the common boundary. [2] The applicants filed an application for a tree dispute in the Tribunal initially seeking an order that the branches of those trees be cut back. Subsequently they filed an application to also recover the expenses they say they have incurred over a period of 15 years, cutting and removing branches from the respondents’ trees overhanging their property. They claim $13,500 plus expenses associated with the litigation, such as their $500 contribution to the cost of an arborist giving a report about his findings and the filing fee for the application for a tree dispute. [3] Each party paid $500 towards the cost of a report by an arborist appointed by the Tribunal. That expert, the tree assessor, identified 8 trees which could have branches extending over the applicants’ fence line. At the time of inspection, however, 17 October 2020, the assessor noted that most of the trees concerned had had their branches pruned “for overhang and clearance”. [4] According to the assessor, four of the trees (numbered 1 through to 4 inclusive in the report) had been pruned by the applicants several months prior and therefore the branches were not extending out over the boundary line. [5] Trees 5 and 7 are clumps of Golden Cane which the assessor says will require management but will not cause injury or damage. [6] Tree 6 is a weed species of tree (African Tulip) and the assessor recommends removal although it is unlikely to cause damage “in the next 12 months”. [7] Tree 8 is an Alexander Palm which the assessor again considers to be unlikely to cause damage although even that (small) risk might be further mitigated with management. [8] Mr Brunings claimed in the application for tree dispute that a tree, likely an Alexander Palm according to the tree assessor, fell from the tree keepers’ land onto a motor vehicle parked in the driveway of the applicants’ land. He also states a palm frond, apparently in a separate incident, fell and struck him on his head and another fell and damaged the gutter on his shed. [9] According to the tree keeper, the incident with the tree falling onto the vehicle in the driveway occurred some 15 or more years ago. There is very little information provided about the damage to the gutter. There are photographs provided by the applicants showing the dented gutter. That seems to have been damage caused by the falling palm 15 or more years earlier however. The damaged car is visible near the damaged gutter and the fallen palm. The respondents say that damage was remedied through a claim on insurance. -- 2 of 7 -- 3 [10] In respect of the incident of the falling palm frond striking Mr Brunings on the head, the applicants say that occurred in September 2020. There is little other information provided about that however. [11] By the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) the Tribunal has jurisdiction to hear and decide any matter in relation to a tree where it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.1 [12] A homeowner’s land may be affected by a tree on adjoining land in a number of ways. Land is affected by a tree if branches from the tree overhang the land,2 or if the tree has caused serious damage to the land or any property on the land or caused serious injury to a person on the land where the land is adjoining land. [13] The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land, to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land.3 The Tribunal may make such an order even if the tree has been completely removed.4 [14] The applicants claim their land is affected by trees growing on the respondents’ land in three ways: overhanging branches; damage to property; and injury caused by falling branches. Overhanging branches [15] As stated, land is affected by a tree5 if, amongst other things, branches from the tree overhang the land. [16] It is unclear to what extent branches from the respondents’ property ever overhung the applicants’ land, at least for the past 15 years. [17] The applicants say that 3 times every year, for the last 15 years, they have regularly pruned back tree branches extending over their fence from the respondents’ land. [18] Indeed the assessor said in his report that at the time of inspection most of the trees had their extending branches pruned for both overhang and clearance. He went on to say that trees 1, 2, 3 and 4 had all been pruned by the applicants several months prior. He makes no specific mention of branches from trees 5, 6, 7 or 8 but it is reasonable to assume that if he saw overhanging branches, at least extending out .5 m as prescribed in the legislation, he would have commented on the fact. [19] In an overhead photograph featured in the report there are possibly two branches to be observed, possibly .5 m over the boundary fence, although there is no finding to that effect in the report. [20] Some photographs attached to the initial application for a tree dispute filed suggests that when the photographs were taken, there were some branches overhanging the dividing fence, but it is unclear what the overhang was given the angle from which the photographs were taken, namely away from the fence inside the applicants’ property. Given, according to the respondents, photographs of damage to a motor 1 The Act, s 61. 2 Ibid, s 46. 3 Ibid, s 66(2). 4 Ibid, s 68(1). 5 Ibid, s 46. -- 3 of 7 -- 4 vehicle parked on the applicants’ land caused by a fallen palm tree from the respondents’ land date back some 15 years prior to the application being filed in the Tribunal, it is not clear when the applicants’ land was last affected by overhanging branches. That is so particularly in light of the applicants’ evidence of their constant pruning back of overhanging branches. That was also the situation found by the tree assessor when he attended for an inspection. [21] The tree that fell onto the motor vehicle was most probably an Alexander Palm, according to the assessor. It is doubtful that palm is still there, given the photographs suggest the tree was uprooted in the fall. Application to the Tribunal [22] The Act makes provision in Part 4 for the removal of overhanging branches where the branches extend at least .5 m out over the common boundary and the branches are no higher than 2.5 m above the ground. Where that occurs, the neighbour may give a written notice in Form 3 to the tree keeper asking the tree keeper to cut and remove the particularly identified overhanging branches. [23] The applicants say in their application for a tree dispute that they gave a Form 3 notice to the respondents. However, the Form 3 is not in evidence before the Tribunal. The applicants say they forwarded the notice together with a quotation for “removal of trees from my boundary” in the amount of $847. [24] The wording used is broad brush and unclear. The Form 3 is only used where branches extend over the common boundary at a height of no more than 2.5 m from the ground. That is a safe height for the tree keeper to safely cut the offending branches without engaging a contractor. The Form 3 makes clear that the tree keeper or a contractor engaged by the tree keeper is granted a right of access to the neighbour’s land to perform the work. [25] Part 5 of the Act applies to circumstances where land is affected by a tree but there are branches overhanging more than .5 m from the boundary and they are more than 2.5 m above the ground. [26] By s 65(a) of the Act the Tribunal may make appropriate orders in relation to a tree affecting the neighbour’s land if satisfied that the neighbour has made a reasonable effort to reach agreement with the tree keeper. [27] Question 5 in the application for a tree dispute addresses this requirement. It asks whether the applicant has tried to resolve the dispute with the tree keeper. It asks for details. The applicants answered this question “Yes - sent Form 3 to respondent – registered post on 20 January 2021 and quotation for removal of trees from my boundary – ($847 quotation).” [28] Given the dispute here concerns branches overhanging more than .5 m and more than 2.5 m above the ground, issuing a Form 3 and not explaining whether discussions were attempted to work out a solution between the parties before taking action in the Tribunal, does not qualify as making an effort to resolve the issue. [29] There is no evidence that the applicants reasonably endeavoured to resolve the dispute before commencing proceedings. Indeed, according to the respondents, after receiving the Form 3 the respondents were attempting to remove overhanging branches but suffered abuse from Mr Brunings and Mr Brunings called the police. -- 4 of 7 -- 5 [30] The parties dispute what took place. Regardless whose version about the involvement of police is correct, I am not satisfied that the applicants have made a reasonable or any effort to reach agreement with the tree keeper respondents about removal of overhanging branches before making the application to the Tribunal. Given that finding, the orders sought by the applicants against the respondents requiring the tree keeper to carry out work on trees on the tree keepers’ land should not be made. [31] Orders made by the Tribunal against tree keepers are no insignificant thing. They bind the tree keeper, usually to an annual or other regular obligation to cut back branches to the common boundary, utilising a contractor. The costs are often quite substantial. The orders last up to 10 years and are noted against the tree keeper’s land title, sometimes affecting marketing a sale of the tree keeper’s land. [32] Even if reasonable effort had been made by the applicants to resolve the dispute prior to making the application for a tree dispute, I would not have been minded to make the orders sought in any case. [33] In part 5 of the Act, s 60 provides: Overview (1) The tree-keeper and neighbour are encouraged to resolve the issue informally. (2) However, the neighbour may— (a) exercise the common law right of abatement; or (b) apply to QCAT for resolution of the issue. [34] Exercise of a party’s common law right of abatement is an alternative remedy to an application to the Tribunal. The common law right of abatement is described as a self- help remedy. One helps oneself, rather than turning to the Tribunal for relief. It is made clear by s 60 of the Act that a neighbour affected by a tree can either fix the problem him or herself or apply to the Tribunal – but not both. [35] The applicants pursued their common law remedy. Recourse to the Tribunal for additional relief was therefore not available. Compensation [36] I should deal with the application for compensation, which is not insignificant. [37] The applicants cannot succeed on their claim for compensation for the value of work done in exercise of their self-help remedy of abatement under the common law. [38] The claim is for the value of their labour, one takes it. There is no suggestion that any contractor was engaged for a fee to perform the work. There is no evidence how the sum of $13,500 is calculated other than the formula $300 for each occasion of work, 3 times per year for 15 years, which totals $13,500. There is no evidence what work was done on any of the separate 45 occasions concerned. [39] There is authority that even pursuant to a common law nuisance claim, on which basis tree “branch and root” cases had been brought before legislation such as the Act came into effect, the costs of abatement itself cannot be recovered, only damages for harm actually sustained. Kaye J said in City of Richmond v Scantelbury [1991] 2 VR 38: -- 5 of 7 -- 6 The complaint made by the defendant under the second ground of the order nisi was that the sum of $6040 which formed part of the total damages awarded to the complainant was wrongly included in the damages. It was submitted on behalf of the defendant that as a matter of law the complainants were not entitled to recover by way of damages the costs of abating the nuisance created by the elm trees, and that the sum of $6,040 was the cost of abatement. The soundness of this submission depended on whether the amount of $6040 was the cost incurred by the complainants, or for which they were liable to abate the nuisance. "Abatement means the summary removal or remedy of a nuisance by the party injured without having recourse to legal proceedings ... its exercise destroys any cause of action in respect of the nuisance except for damages in respect of harm sustained before the abatement": Halsbury, 4th ed., vol. 34, p. 126, para 349. I respectfully adopt the statement of current law concerning abatement expressed by Wood J. in Young v. Wheeler (1987) Aust Torts Reports 68,966, at p. 68,971 that: "A person who has taken steps to abate a nuisance is unable to recover the costs of the abatement as damages, but possibly may be able to recover damages for any harm suffered before the abatement." The act of abating a nuisance has the effect of removing it, Traian v Ware [1957] VR 200, at 207, per Martin J, so that thereafter the claimant is not entitled to damages for nuisance.6 [40] The comments by Kaye J are obiter because in that matter, the roots causing a nuisance had not actually been abated by the claimant, and it was on that basis that the costs were not awarded.7 [41] However Kaye J explored the authorities concerning abatement in some detail, and the decision has been favourably cited and followed on a number of occasions. The New Zealand High Court accepted the proposition that the actual costs of abatement cannot be claimed in Johnson v Barry Park Investments Ltd [2019] NZHC 597, relying on City of Richmond v Scantelbury, with Muir J stating (in a footnote): 49 … Australian courts have been more reluctant to recognise the right to recover the costs of abatement as damages (see Young v Wheeler (1987) Aust Tort Reports 80; Proprietors of Strata Plan No 14198 v Cowell [1989] 24 NSWLR (SC) 478 and Richmond City v Scantelbury [1991] 2 VR 38). However, their willingness to allow recovery of equivalent costs as “a reasonable step taken in mitigation of damages” (See Proprietors of Strata Plan No 14198 at 486(f)) has meant that, in practical terms, little has turned on the point. Moreover, in Richmond City, the Supreme Court of Victoria also recognised that irrecoverability of the costs of abatement only applied to costs incurred before commencement of action and did not preclude compensation by way of damages for costs to be incurred in the future.8 [42] Here the claim for compensation is limited to the labour costs of abatement, not damages for actual harm caused. I determine those costs are not recoverable under the common law and not recoverable here. 6 At 47-48. 7 Gillott v District Court of South Australia & Ors [2019] SASC 132, [55]. 8 Footnote 49. -- 6 of 7 -- 7 [43] The application is dismissed. -- 7 of 7 --