Edwin & Anor v Campbell & Anor [2024] QCAT 86

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwin & Anor v Campbell & Anor [2024] QCAT 86 PARTIES: PATRICK JOSEPH EDWIN PRATHIBHA ELIZABETH ANN JOSE (applicants) v RAYMOND JOHN CAMPBELL LESLEY ELLEN CAMPBELL (respondents) APPLICATION NO: NDR003-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 19 February 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Scott-Mackenzie ORDERS: 1. The respondents reduce the height of the bamboo and trees on the respondents’ land on or near the common boundary between the applicants’ land and the respondents’ land identified in the data summary on page 5 of the vegetation impact assessment report by Mr Lonsdale of Frontier Tree Services filed in the Tribunal on 13 September 2022 to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home. 2. The respondents cut and remove any culms of bamboo and branches of trees on or near the common boundary that overhang the applicants’ land. 3. The work required by orders 1 and 2 be carried out: (a) initially within 90 days of this order and thereafter not less than annually; (b) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and -- 1 of 17 -- 2 (c) at the respondents’ cost. 4. The applicants provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicants’ land to carry out the work on not less than ten days’ notice by email from the respondents to the applicants. CATCHWORDS: NEIGHBOURHOOD DISPUTE RESOLUTION – TREES – loss of views – whether there are views that existed when that the applicants took possession of their land – the locations from which the views were seen – the extent of the views lost – whether there is a risk of serious injury to a person on the applicants’ land – leaf litter – what are the appropriate orders Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 49, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 74, s 75 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 112 Barber v Kyriakides [2007] NSWLEC 292 Belcher v Sullivan [2013] QCATA 304 Calvisi v Brisbane City Council (2008) 1 PDQR 374 Finch v Grahle [2017] QCAT 80 Graham & Ors v Welch [2012] QCA 282 Haindl v Daisch [2011] NSWLEC 1145 Humphries & Anor v Poljak [1992] VicRp 58; [1992] VR 129 Leonardi v Watson & Harloe [2015] QCATA 192 Tenacity Consulting v Warringah [2004] NSWLEC 140 Thomson v White [2012] QCAT 381 Vecchio v Papavasiliou [2015] QCAT 70 APPEARANCES & REPRESENTATION: This matter was heard and decided on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Application [1] The applicants have made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) (application). -- 2 of 17 -- 3 Background [2] The applicants are the owners of land at 24 Coralcoast Drive, Tallai (applicants’ land). The respondents are the owners of adjoining land at 20 Coralcoast Drive, Tallai (respondents’ land). [3] The applicants allege bamboo and trees on the respondents’ land on or near the common boundary between the applicants’ land and the respondents’ land: (a) are obstructing a view from the applicants’ home that existed when they took possession of their land; (b) may cause serious injury to a person on the applicants’ land; and (c) are dropping leaf litter on the applicants’ land. [4] The applicants seek four orders from the Tribunal, as follows: (a) an order that the respondents carry out work on the bamboo and trees to remove or prune the bamboo and trees; (b) an order that a person can enter the respondents’ land to carry out an order; (c) an order that a person can enter the respondents’ land to obtain a quotation to carry out an order; and (d) an order that the respondents pay the costs for carrying out the orders. [5] The applicants filed with the application the following documents: (a) email applicants to the respondents sent to 7 May 2018. The email asks that the branches of shrubs and trees be cut to the same level as they were when the applicants purchased the applicants’ land; (b) email applicants to the respondents sent 25 June 2020 asking that all vegetation overhanging the applicants’ land be trimmed; (c) invoice Treesafe Environmental Services to the applicants dated 12 March 2019; (d) letter respondents to the applicants dated 26 May 2018. In part, the letter reads: We note you agree that the vegetation along our joint side boundary to be trimmed to the level of rood (sic.) ridge line at its highest point. We also note you have agreed to arrange for the trimming and removal of waste vegetation at your expense. Again, we reiterate our commitment to arrange for the cutting and removal of vegetation encroaching on your land along our common side boundary. As you require us to remove overhanging vegetation on you (sic.) land along out (sic.) common boundary, a pre-requisite to any work being carried out, we will be insisting on the gum tree overhanging our land 4-5 metres (which has a habit of dropping branches) be trimmed or removed. … -- 3 of 17 -- 4 You may or may not be aware that once bamboo has had the top cut it does not gain any more height. (Emphasis added); (e) letter respondents to the applicants dated 13 May 2018. The letter offers what is described as a solution to the problem, in the following terms: 1. We will arrange to have the bamboo encroaching on your property cut and removed. 2. We will arrange to cut and remove the encroaching branches on our property from a gumtree on your property. 3. As previously stated, you will agree to cut and remove at your expense, bamboo which is higher than when you bought your premises. We are of the belief that the correct height is approximately in line with our dwelling roof ridge line at its highest point. 4. Before any agreed work is carried out on our land we request at least 48 hours notice. If this proposal is acceptable to you, please indicate the same in writing, otherwise we would be happy to take this matter to the tribunal. (Emphasis added); and (f) several photographs of the bamboo and trees growing on the common boundary between the applicants’ land and the respondents’ land purportedly taken in 2019, 2020, and at the time of filing the application. Response [6] The respondents, in accordance with directions given by the Tribunal, filed a response to the application (response). They assert the application is frivolous and an exaggeration, and continue: The magnificent Eucalyptus Sideroxlyon tree referred to is at least 100 years old and is situated two (2) metres outside our common fence. The trees to the front and side of our property were existing when we purchased out (sic.) property 21 years ago. These same trees have been trimmed on numerous occasions and as recently as Nov/Dec 2020 when two utility loads were taken to the refuse tip. All bamboo on our property was planted for privacy and shade when No. 24 Coralcoast Drive was part of a subdivision extension and almost all trees were removed. This work was carried out prior to any residential development. The height of the bamboo was cut by the owner proceeding (sic.) the Edwins at the Edwins request and without permission. This procedure was again carried out by the Edwins with our permission in August 2019. [7] The respondents ask that the proceeding be dismissed. -- 4 of 17 -- 5 Tree assessor’s report [8] The Tribunal, on 20 July 2022, pursuant to section 112 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), gave notice to the parties of its intention to obtain the help of a tree assessor to assist in deciding the proceeding, and directed that the parties contribute equally to the cost of obtaining such assistance. The respondents declined to do so. The applicants elected to engage their own level 5 AQF qualified arborist to undertake an assessment and provide a report having regard to the provisions of chapter 3 of the ND Act. The report, authored by Mr Simon Lonsdale of Frontier Tree Services, was filed on 13 September 2022 (Mr Lonsdale’s report). [9] In the report, Mr Lonsdale summarises the species of trees on the common boundary, and their height, spread, structure, vigour, age, observations and recommendations, and risk rating in a table. The table is reproduced in schedule A to these reasons for decision. [10] The report includes photographs of the previously pruned height of the bamboo and obstructed views. [11] Mr Lonsdale discusses his observations on page 4 of the report. He states: Continued and active management of the vegetation can be undertaken on and (sic.) regular basis as required, or through a programmed routine without direct impediment to plant health. All assessed trees and Bamboo previously pruned present in good health and vigour, which is displayed in reactive growth on all reduced plants. No trees or Bamboo present with any current or direct threat to person and property at the time of inspection. [12] His recommendations are in the following terms: Continued reduction and maintenance of the subject vegetation at a determined height can be achieved without immediate or ongoing implications to plant health or stability. Any height determined can still maintain privacy and screening to 20 Coralcoast Dr, whilst allowing for full open views towards the east. All subject plants have been successfully reduced prior to accommodate views. The subject vegetation has now grown to obstruct and restrict once appreciated views and with continued growth and development additional loss is expected.1 Additional evidence [13] The parties, as directed by the Tribunal, filed statements of evidence. The applicants state they purchased their land in 2016 after it was advertised as having “… stunning panoramic vistas of the Gold Coast skyline …” [14] The bamboo on the common boundary grows ‘unabated’. Correspondence passed between the parties. Within two years, the bamboo grew to the extent it obstructed views and leaf litter falls on the grassed area and land adjoining the common boundary. 1 Page 4 of Mr Lonsdale’s report. -- 5 of 17 -- 6 [15] The applicants, in 2019, arranged the trimming of the bamboo, at a cost of $2,200.00. However, the bamboo and trees continued to grow, with the branches overhanging the applicants’ land and leaf litter dropping on the land. [16] In February 2022, the applicants state, bamboo between 30 and 35 metres in height fell over the fence on the common boundary onto the applicants’ land. The falling bamboo, the applicants assert, is a safety risk to persons on their land. [17] The applicants filed with the statement of evidence the advertisement for the sale of their land in 2016, photographs taken from their home, correspondence between the parties, an invoice, and photographs filed with the application, photographs of the bamboo and trees on the common boundary, the fallen bamboo, and a further copy of Mr Lonsdale’s report. [18] In their statement of evidence, the respondents state they purchased their land in May 1999. They planted bamboo on the common boundary prior to the applicants’ land being developed. [19] The bamboo, the respondents state, has been trimmed twice, once at the request of the previous owner of the applicants’ land, and again by the applicants with the respondent’s permission in 2019. [20] The respondents assert they have stated on many occasions “… the applicants can trim the bamboo to the agreed height at their expense as on previous occasions and as long as the respondents are correctly notified.” [21] They assert the bamboo does not cause unreasonable interference, it is well-maintained, and the obstruction of the view is not severe. They repeat they are happy for the applicants to cut the bamboo. [22] In relation to paragraph 8 of the applicants’ statement of evidence, the respondents state: ... As previously agreed and acted upon by the applicants, we are prepared to allow the applicants to prune the bamboo to a height not less than the top of the respondents dwelling ridge line at it’s highest point while standing on the applicants ground floor (pool level), as this is to the applicants advantage only, all costs associated with the pruning and removal of waste to be bourne (sic.) by the applicants subject to giving 14 days notice in writing to allow the respondents to be on site to supervise. Date and time to be agreed between both parties. If there are any overhanging bamboo branches on the applicants property we are happy to remove them provided the applicants give written permission to enter their property. (Emphasis added) -- 6 of 17 -- 7 [23] They conclude by referring to the decisions of the Tribunal in Nichol v Campbell2 and Vecchio v Papavasiliou3 and the Appeal Tribunal in Laing & Anor v Kokkinos & Anor (No 2)4. [24] The applicants filed a response to the respondents’ statement of evidence. In it, they rejected the challenge to Mr Lonsdale's report. [25] They assert a false date has been added to a photograph and assert bamboo on the common boundary closer to the road was planted after they purchased their land. They reject the assertion the previous owner of their land cut the bamboo before they took possession of their land and draw attention to Mr Lonsdale’s report and the fallen bamboo. Comment [26] The respondents, as appears from their statement of evidence, are prepared to allow the bamboo to be reduced in height to the height of the ridge line of the respondents’ home. No mention is made of other trees on the common boundary. The respondents submit the applicants should pay the cost of any work. Legislation [27] Trees are provided for in chapter 3 of the Act. A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree. The chapter applies to trees on land recorded in the freehold land register. [28] Tree is widely defined. It means: (a) any woody perennial plant; or (b) any plant resembling a tree in form and size; or (c) a vine; or (d) a plant prescribed under a regulation to be a tree for chapter 3 of the ND Act.5 [29] Bamboo is offered as an example of a plant resembling a tree in form and size. [30] Land is affected by a tree at a particular time if branches from the tree overhang the land and 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; or (c) substantial, ongoing, and unreasonable interference with the neighbour’s use and enjoyment of the land, 2 [2016] QCAT 57. 3 [2015] QCAT 70. 4 [2013] QCATA 247. 5 ND Act, s 45(1). -- 7 of 17 -- 8 and the land adjoins the land on which the tree is situated.6 [31] Tree-keeper is defined in section 48 of the Act. A person is a tree-keeper for a tree if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld) and the person is the registered owner of the lot under the Act. [32] A registered owner of a lot recorded in the freehold land register and an occupier of the land is a neighbour in relation to a particulate tree or the tree-keeper for a particulate tree if land affected by the tree is a lot recorded in the freehold land register.7 [33] The responsibilities of a tree-keeper are provided for in section 52 of the Act. The tree-keeper is responsible for: (a) cutting and removing any branches of the tree that overhang the neighbour’s land8; (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; or (iii) substantial, ongoing, and unreasonable interference with a person’s use and enjoyment of the person’s land9. [34] Section 61 of the ND Act gives the Tribunal jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, at the date of the application to the Tribunal, land is affected by the tree. [35] The Tribunal must be satisfied of several matters before making an order under section 66 of the Act. Those matters are: (a) the neighbour has made a 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 the 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.10 6 Ibid, s 46. 7 Ibid, s 49. 8 Ibid, s 52(1). 9 Ibid, s 52(2). 10 Ibid, s 65. -- 8 of 17 -- 9 [36] Division 4 of part 4 of the Act states the matters for the Tribunal’s consideration in deciding an application for an order under section 66. Those matters include safety11 and removal or destruction of a living tree is to be avoided.12 The general matters, spelt out in section 73, include, inter alia: (a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree; (b) … (c) whether the tree has any historical, cultural, social, or scientific value; (d) any contribution the tree makes to the local ecosystem and to biodiversity; (e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality; (f) any contribution the tree makes to public amenity; (g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour, or smoke; (h) … (i) … (j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width, or shape; (k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an act or a local law. [37] The Tribunal 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.13 [38] Importantly in the context of the application before the Tribunal, if interference that is an obstruction of a view is alleged, the Tribunal may only make an order under section 66(2)(b)(ii) if: 11 Ibid, s 71. 12 Ibid, s 72. 13 Ibid, s 66(2). -- 9 of 17 -- 10 (a) the tree rises at least 2.5m above the ground; and (b) the obstruction is severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.14 [39] An order made by the Tribunal under section 66(2) may do any of the following: (a) require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis; (b) … (c) … (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 out an order; (e) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under the section; (f) … (g) …15 Discussion Obstruction of view [40] An obstruction of a view is interference only if: (a) the tree rises at least 2.5 metres above the ground; and (b) the obstruction is a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. [41] I am satisfied the bamboo and trees on the common boundary between the applicants’ land and respondents’ land rise at least 2.5 metres above the ground. The conclusion reached is evidenced by the material filed in the Tribunal, the applicants’ statement of evidence and Mr Lonsdale’s report. [42] It is well settled that, in Australia, there is no general right to a view from a person’s land.16 Section 66 of the ND Act empowers the Tribunal to make an order to remedy, restrain or prevent obstruction of a view, but only if the obstruction is a severe obstruction of the view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. The remedy is a statutory remedy, and it is discretionary.17 [43] As was said by Wilson J, then the President of the Tribunal, in Laing & Anor v Kokkinos & Anor (No. 2), the determination of an application under section 66(3)(b)(ii) of the Act is a 14 Ibid, s 66(3). 15 Ibid, s 66(5). 16 Calvisi v Brisbane City Council (2008) 1 PDQR 374, at 381-382. See also Laing & Anor v Kokkinos & Anor (No. 2), at [31]. 17 Laing & Anor v Kokkinos & Anor (No. 2), at [32]. -- 10 of 17 -- 11 three-step process. First, the Tribunal must decide whether a view existed at the time the applicant took possession of the land. [44] Secondly, it must decide whether a tree on the respondent’s land is causing a severe obstruction of that view. [45] Thirdly, the Tribunal must balance the interests of the parties, taking into consideration the matters in sections 72, 73, and 75 of the Act. [46] The three-step process calls into consideration the meaning of the term ‘severe obstruction’. In Haindl v Daisch18, cited by Wilson J in Laing & Anor v Kokkinos & Anor (No. 2), the New South Wales Land and Environment Court held the assessment of severity involves both quantitative and qualitative elements, offering the following examples: To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view.19 [47] Wilson J, in Laing & Anor v Kokkinos & Anor (No. 2), adopted three steps of a four-step process for assessing the nature of the view interfered with by development identified by the New South Wales Land and Environment Court in Tenacity Consulting v Warringah20: [39] The first step is to identify and value the type of views affected: water views and iconic views are valued more than views not of those things; and whole views are valued more highly than partial views. [40] The second step identifies the part of the dwelling the views exist and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sittings views are more difficult to protect than standing views. [41] The third step assesses the impact of the interference to the views of the whole property, not just for the view that is affected: views from living areas are more significant than from bedrooms or service areas, except those from kitchens which are highly valued. As Roseth SC said: The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to 18 [2011] NSWLEC 1145. 19 Ibid, at [64]. 20 [2004] NSWLEC 140, at [26]-[28]. -- 11 of 17 -- 12 assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.21 [48] His Honour adopted the natural and ordinary meaning of the term ‘view’ given the context in which it is found in the ND Act, consistent with what was said by the New South Wales Land and Environment Court in Haindl v Daisch: 26. ... we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 27. We give a clear example in the present application, discussed in more detail later in our analysis concerning this location. When standing on the bedroom balcony looking outward, the panoramic single view able to be observed from this point: • commences, to the south, with the ridgeline of the kitchen/family room wing of the applicants' house; and • turning the eyes from south toward north, proceeds to encompass views towards the Harbour Bridge and those suburban elements in that foreground; then • the trees that are the subject of this application; and • finally, the entire panorama of the district topography and suburban built form of elements of North Sydney and Mosman from the northern end of the trees through more than 90 degrees to, effectively, the north through the northern open end of the balcony. 28. ... this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. Was there a view that existed when that the applicants took possession of their land? [49] The advertisement for the sale of the applicants’ land and home in 2015 remains on the internet and may be seen by following the link: https://www.realestate.com.au/sold/property-house-qld-tallai-117827320. It includes a description of the home, twenty-four photographs and a site plan. [50] The description and four photographs are annexure 1 to the applicants’ statement of evidence. [51] The photographs are taken from several locations on the ground and first floors of the applicants’ home. They show views over the respondents’ land and home to the east, towards the Gold Coast and beyond. They include a photograph taken at night. [52] I am satisfied, to the requisite standard, the views from the applicants’ home existed when the applicants took possession of their land, and so find. Consistent with what may be seen in the photographs included in the advertisement for the sale of the applicants’ land and home in 2015 and filed in the Tribunal, the views existed across the respondents’ land and home to the east towards the Gold Coast and beyond. 21 Ibid, at [28]. -- 12 of 17 -- 13 The locations from which the views were seen [53] The views are seen from the dining room, formal living room, and outdoor terrace and deck on the ground floor of the applicants’ home. On the first floor, they are seen from the master bedroom and balcony. [54] Given the locations from which the views are seen, and applying the principles spelt out by the New South Wales Land and Environment Court in Tenacity Consulting v Warringah, I am of the opinion it is reasonable to take steps to preserve the views. What is the extent of the views lost by the bamboo and trees? [55] Mr Lonsdale’s report summarises his observations on the extent to which the bamboo and trees obstruct the views in the data summary reproduced in annexure A to these reasons for decision. The photographs filed in the Tribunal show the progression of the obstruction over several years. [56] Taking the totality of what can be seen from the identified viewing locations in the applicants’ home, I assess the obstruction to the views as severe. Even if the obstruction is less than severe, I am satisfied the bamboo and trees, within the next 12 months, are likely to cause severe obstruction to the views. Serious injury [57] The applicants, in their statement of evidence, assert that in February 2022: ...the dense growth of bamboo shoots taller than 30 – 35m collapsed over the fence in the rain and storm, and landed in our property. This obviously is an extreme safety concern for our boys and our pet dog. Annexed to the statement as annexure 6 is a photograph. It shows a single culm resting on what appears to be the fence on the common boundary between the applicants’ land and the respondents’ land. [58] The Tribunal, by virtue of section 66 of the ND Act, has power to make the orders it considers appropriate in relation to a tree affecting the neighbours land to prevent serious injury. Land is affected by a tree at a particular time if, inter alia, the tree has caused, is causing, or is likely within the next 12 months to cause serious injury to a person on the land.22 [59] If a neighbour alleges a tree has caused, is causing, or is likely to cause serious injury to any person, the Tribunal may consider anything other than the tree that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land. It may also consider any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or the likelihood of injury.23 22 ND Act, s 46(a)(ii)(a). 23 Ibid, ss 74(1)(a), 74(1)(b). -- 13 of 17 -- 14 [60] The meaning of the term ‘serious injury’ is not defined in the ND Act. In Humphries & Anor v Poljak24, cited by the Appeal Tribunal in Leonardi v Watson & Harloe25, the Supreme Court of Victoria Appeal Division considered the meaning of the term in the Transport Accident Act 1986 (Vic). The majority, Crockett and Southwell JJ, observed that for an injury to be a serious injury it must be at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’. The majority later continued: ... To be “serious” the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.26 [61] The applicants allege a single incident of a culm falling across a fence during a storm; it did not fall all the way to the ground. A person on the applicants’ land was not injured and I am not satisfied a falling culm is likely, within the next twelve months, to cause serious injury to a person. The conclusion reached is supported by what is said by Mr Lonsdale on page 4 of his report. [62] The orders I propose making for the reduction in height of the bamboo are likely to reduce the risk of injury, if there be a risk. Leaf litter [63] In Barber v Kyriakides27, a decision of the New South Wales Land and Environment Court, the Court formulated the principle to be applied in considering urban trees and the ordinary maintenance issues arising from them in the following terms: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, 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.28 24 [1992] VicRp 58; [1992] VR 129. 25 [2015] QCATA 192, at [18]. 26 Ibid, at 140. 27 [2007] NSWLEC 292. 28 Ibid, at [20]. See also Graham & Ors v Welch [2012] QCA 282. -- 14 of 17 -- 15 [64] The Tribunal, in Finch v Grahle29, citing Vecchio v Papavasiliou30 and Thomson v White31, said: 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.32 [65] What constitutes serious injury or damage, and substantial, ongoing, and unreasonable interference, has been considered by the Tribunal on many occasions. In Belcher v Sullivan33, Judicial Member Dodd said: [22] ‘Serious’ is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible”. [23] ‘Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance. [24] Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided. [66] The applicants assert “... extreme levels of leaf littering ...” The photographs filed in the Tribunal show leaf litter, but not at extreme levels. I accept leaf litter is falling on the applicants’ land. However, the level shown is not enough to constitute a nuisance, let alone a substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicants’ land. [67] There will be no order to provide for leaf litter. Appropriate orders [68] The Tribunal is required to consider the matters in sections 72, 73, and 75 of the ND Act in deciding what orders are appropriate. As was said by Wilson J in Laing & Anor v Kokkinos & Anor (No. 2): In light of those sections the question for the Tribunal involves, on the one hand, balancing the interests of maintaining a tree at its current height, width or shape against fairness to neighbours whose views have been severely obstructed … [69] The bamboo, as was intended when planted, provides privacy to the respondents’ land and home. It also provides privacy to the applicants’ land and home. The privacy will not be lost by reducing the height of the bamboo to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home. Additionally, the bamboo and trees no doubt provide shade, act as a wind break and attract birds and other wildlife. They will continue to do so if reduced in height. 29 [2017] QCAT 80. 30 [2015] QCAT 70. 31 [2012] QCAT 381. 32 Ibid, at [24]. 33 [2013] QCATA 304. -- 15 of 17 -- 16 [70] The bamboo, the respondents concede, has been reduced in height on two occasions. It is not suggested doing so affected the bamboo. Mr Lonsdale, in his report, states the bamboo and trees are in “good health and vigour” despite the reduction in height. He further states the continued reduction and maintenance of the bamboo and trees at a determined height “... can be achieved without immediate or ongoing implications to plant health or stability.”34 Taking into consideration the whole of the evidence and weighing the matters in sections 72, 73, and 75 of the ND Act, I am persuaded orders for the reduction in height of the bamboo and trees identified in the data summary on page 5 of Mr Lonsdale’s report to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home and, thereafter, maintained at that height, and the cutting and removal of culms and branches overhanging the applicants’ land, achieves an appropriate balance between the relevant interests of the parties. Decision [71] The Tribunal orders as follows: 1. The respondents reduce the height of the bamboo and trees on the respondents’ land on or near the common boundary between the applicants’ land and the respondents’ land identified in the data summary on page 5 of the vegetation impact assessment report by Mr Lonsdale of Frontier Tree Services filed in the Tribunal on 13 September 2022 to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home. 2. The respondents cut and remove any culms of bamboo and branches of trees on or near the common boundary that overhang the applicants’ land. 3. The work required by orders 1 and 2 be carried out: (a) initially within 90 days of this order and thereafter not less than annually; (b) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and (c) at the respondents’ cost. 4. The applicants provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicants’ land to carry out the work on not less than ten days’ notice by email from the respondents to the applicants. 34 Page 4 of Mr Lonsdale’s report. -- 16 of 17 -- Annexure A ID Species Height Spread Structure Vigour Age Observations Recommendations Risk Rating 1 Eucalyptus sieroxlyon (Iron Bark) 30 12 Good Good M Healthy tree with no visible defects noted at time of inspection. Canopy encroachment over boundary with minor deadwood located throughout. Tree partially blocks eastern views. Reduce back any encroachment over the shared boundary. L 2 Bamboo sp 23 12 Good Good M Tall extensions of growth now partially block eastern views. Bamboo has been previously pruned to reduce height. Reduce in height to re- instate views allowing for privacy and screening to be maintained. L 3 Melaleuca bracteata (Tea Tree) 6 12 Good Good M Tall extensions of growth now partially block eastern views. Trees have been previously pruned to reduce height. Reduce in height to re- instate views allowing for privacy and screening to be maintained. L 4 Lagerstoemia sp (Crepe Myrtle) 6 6 Good Good M Mixed group of trees all display previous actions to reduce height. Trees have now grown and partially obstructs eastern views. Reduce in height to re- instate views allowing for privacy and screening to be maintained. L 5 Bamboo spp 16 10 Good Good M Tall extensions of growth now partially obstruct views to the east. Plant has previously been reduced in height. Reduce in height to re- instate views allowing for privacy and screening to be maintained. L 6 Acacia decurens (Wattle) 5 2 Good Good M Tree partially obstructs views to the east. Tree has previously been reduced in height. Reduce in height to re- instate views allowing for privacy and screening to be maintained. L -- 17 of 17 --