Andrews v Moffat [2024] QCAT 170

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Andrews v Moffat [2024] QCAT 170 PARTIES: JUDITH ANDREWS (applicant) v KELLIE MARIE MOFFAT (respondent) APPLICATION NO/S: NDR031-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 12 April 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Munasinghe ORDERS: The application is dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant contends respondent’s 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 their land. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66, s 73, s 75 Edmonds v Yeates [2013] QCAT 7 Graham & Ors v Welch [2012] QCA 282 Thomsen v White [2012] QCAT 381 Wallace v Keg [2012] QCAT 466 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 applicant, Judith Andrews, lives in a house on a 750 square meter block of land. [2] The respondent, Kellie Marie Moffatt, lives on an adjoining block of land. [3] There are two Golden Penda trees (‘Pendas’) on the respondent’s land. The trees are situated near a fence that divides the two blocks of land (‘dividing fence’). -- 1 of 4 -- 2 [4] The applicant moves for the Tribunal to make an order for the Pendas to be cut to a manageable height1 because they drop dead branches, leaf litter and seed pods onto her yard and pool. I will refer to the branches, leaves and seed pods collectively as ‘debris’. [5] The applicant contends that the debris: (a) is likely to cause a serious injury to a person because branches have previously fallen onto her land. (b) has stained concrete and the inside of her pool, and ruined her pool cover, the pool and its coping edge, and her pool filter. (c) has accumulated against the dividing fence causing it to rot and fall towards her pool. (d) clogged her pool pipes and pool cleaner diaphragms, requiring their replacement. (e) damaged her pool pump’s internal impeller which required it to be replaced at a cost of $2071.21. [6] In response to the applicant’s contentions, the respondent submits: (a) the Pendas’ branches are not overhanging the fence and have always been cut off at the fence line as per ‘regulations’. (b) the Pendas pose no concerns to the applicant because their branches do not overhang the fence. (c) the dividing fence is worn with age but remains in good condition. (d) she is leasing her property and engaged contractor James Mowing on an ongoing basis to attend to garden maintenance and cutting back the Pendas. (e) she will endeavour to ensure the Pendas remain ‘away’ from the back fence. (f) The Pendas existed when she first bought her land 17 years ago. Relevant law [7] Under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), the Tribunal is only permitted to 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. 1 Application for a tree dispute, p 15, Part F. -- 2 of 4 -- 3 [8] If future serious injury, serious damage or interference is contended, it must be likely to occur within the next 12 months.2 [9] Notably, s 71 of the Act provides that the primary consideration (for QCAT) is the safety of any person. Is an order necessary to prevent serious injury to any person within 12 months [10] Whilst the applicant contends that the Pendas pose a safety risk because branches have previously fallen on her land, she has not furnished the Tribunal with evidence about the size of the branches or when they fell. Additionally, photographs of the Pendas she provided do not persuade me that their branches are overhanging the dividing fence. Accordingly, I not persuaded that the branches pose a risk of falling into the applicant’s land. I do not consider that an order is necessary to prevent serious injury to any person within 12 months. Is an order necessary to remedy, restrain or prevent serious damage to the neighbour’s land or property within 12 months? [11] The applicant has not provided the Tribunal with photographs or other evidence of the damage to the dividing fence she purports is caused by leaf litter. The applicant did provide a Bunnings receipt indicating that she purchased materials to repair the fence. However, it not unusual for a timber fence to naturally degrade over time, especially in Brisbane’s rainy and humid subtropical climate. There is insufficient evidence for me to conclude the leaf litter damaged the fence, or that the damage could be considered serious. [12] None of the photographs provided by the applicant persuade me that the debris has caused permanent staining to the pool, its coping edge, the pool cover or the concrete on the applicant’s land. [13] The applicant relies on an invoice from Springfield Pool and Spa Supplies to support her contention that the debris damaged her pool pipes, cover, and filter. I do not consider that invoice constitutes probative evidence that the debris damaged those items. The invoice merely proves that the items were replaced. It indicates nothing about how the damage occurred. [14] I am not satisfied, on the evidence before me, that an order is necessary to remedy, restrain or prevent serious damage to the applicant’s land or property within 12 months. Is an order necessary to remedy, restrain or prevent substantial, ongoing and unreasonable interference with use and enjoyment of the respondent’s land? [15] Previously, this Tribunal has found that dropping of leaves, flowers, fruit and seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with an urban tree.3 2 The Act, s 46(a)(ii). 3 See the comments of Acting Deputy President Stilgoe (as she then was) in Edmonds v Yeates and Anor [2013] QCAT 7 at [8] citing Thomsen v White [2012] QCAT 381 and Wallace v Keg [2012] QCAT 466. -- 3 of 4 -- 4 Additionally, in Graham & Ors v Welch,4 Atkinson J (albeit in the context of a personal injuries matter) said:5 The finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps is in my view contrary to principle. Trees and bushes are common place and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods. [16] I see no reason to depart from the approach taken in the cases above. I consider the debris produced by the Pendas to be a natural incident in a suburban landscape that includes trees.6 Accordingly, I find that an order is not necessary to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land. [17] Section 73 of the Act requires the Tribunal to consider various general matters, the following of which I consider relevant to the present dispute: (a) The Pendas are located away from the dividing fence and in photographs provided to the Tribunal, their branches do not appear to be overhanging the fence.7 (b) The Pendas positively contribute to the amenity of the respondent’s land by providing privacy. They also contribute positively to the visual aesthetics of the landscaping in the respondent’s garden.8 Conclusion [18] For the reasons above, I am not persuaded that it is appropriate to for the Tribunal to make orders in relation to the Pendas to prevent serious injury to any person, or to remedy, restrain or prevent: (a) serious damage to the applicant’s property; or (b) substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land. [19] Accordingly, I dismiss the application. 4 [2012] QCA 282. 5 at [24]. 6 Edmonds v Yeates and Anor [2013] QCAT 7 at [9]. 7 The Act, s 73(1)(a). 8 Ibid, s 73(1)(g). -- 4 of 4 --