Buckley v Brown & Anor [2023] QCAT 468

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Buckley v Brown & Anor [2023] QCAT 468 DEANAH ELISE BUCKLEY (applicant) v ROBERT JOHN PATRICK BROWN CLARISSA MARIE BROWN (respondents) APPLICATION NO: NDR030-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 20 November 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Scott-Mackenzie ORDERS: 1. The respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land. 2. The work required by order 1 be carried out: (a) initially within 60 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. 3. The applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where land affected by trees – where branches from trees overhanging land – where interference to pool and staining of sandstone paving around pool by leaf litter – where obstruction of sunlight to the outdoor patio area – where damage to tiles in outdoor patio area -- 1 of 12 -- 2 APPEARANCES & REPRESENTATION: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 12, s 13, s 20, s 45, s 48, s 48, s 49, s 52, s 57, s 61, s 63, s 66, s 73, s 74, s 75 Barber v Kyriakides [2007] NSWLEC 292 Belcher v Sullivan [2013] QCATA 304 Finch v Grahle [2017] QCAT 80 Graham & Ors v Welch [2012] QCA 282 Thomson v White [2012] QCAT 381 Vecchio v Papavasiliou [2015] QCAT 70 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 Introduction [1] The applicant has made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) (application). The Tribunal has directed that the proceeding be decided on the papers. Application and accompanying documents [2] The trees the subject of the application are located on the respondents’ land at 127 Arnold Street, Holland Park (respondents’ land) on or near the common boundary between the respondents’ land and the applicant’s land at 131 Arnold Street, Holland Park (applicant’s land). A pool is located on the applicant’s land towards the rear on or near the boundary, adjacent to an outdoor patio area. [3] The applicant, in the application, asserts the dispute is about overhanging branches of the trees, more than 2.5m above the ground. The trees have caused serious damage to the applicant’s land, or property on the land, the applicant further asserts, described in the following terms: tree debris and rotting foliage cause damage to the pool area, staining the white sandstone paving. Requires heavy chemicals to counteract the damage in and out of the pool and surrounds. Outdoor living area has possible tree root damage causing tiling to lift and crack. Gutters closest to the common boundary are continually blocking from tree foliage overhanging, causing water to flood into the garage below when heavy rainfall occurs [4] The parties have attempted to resolve the dispute, it is said over five years, without success. [5] The trees are identified as Frangipani (also known as Plumeria), Mack Orange (Murraya Paniculata) and Lilly Pilly varieties. -- 2 of 12 -- 3 [6] The relief sought by the applicant is: (a) an order that the respondents carry out work on the trees: (i) to remove or prune the branches of the trees; (ii) to remove or prune the roots of the trees; and (b) an order that the respondents pay the costs of carrying out the orders; (c) an order that the respondents pay an unspecified amount of compensation to the applicant for damage to the applicant’s land or property. [7] The documents filed with the application include: (a) a letter dated 19 April 2015 apparently sent by the applicant to the respondents with a notice for removal of particular overhanging branches; (b) a letter first respondent to the applicant dated 19 January 2017 disputing a notice for removal of particular overhanging branches (form 3) given by the applicant to the respondents and dated 22 December 2016; (c) the notice; (d) a letter from the applicant to the respondents dated 20 January 2017 discussing the dispute and seeking resolution; (e) an email from the applicant to the respondents sent 5 January 2021 discussing the dispute and demanding resolution; (f) a quotation Bold Landscapes to the applicant dated 14 January 2021 in the sum of $17,127.00 for removing and disposing of pavers, repairing a concrete slab, supplying and installing a wet screed and supplying and installing tiles; (g) a quotation Acclaim Tree Care & Services to the applicant dated “23/1” for removing and trimming the trees; (h) a letter from the Department of Justice and Attorney-General to the applicant dated 5 February 2021 concerning mediation of the dispute; (i) what appears to be a quotation from Andrews Trees & Stumps in the sum of $395.00 (undated); (j) several photographs. One of the photographs, showing the trees on the common boundary adjacent to the pool, is reproduced below. Respondents’ response [8] The respondents filed a response to the application (response). In the response, they refer to an application to dismiss the proceeding filed the same day. They filed submissions in support of the application. It was dismissed by the Tribunal. [9] Subsequently, in accordance with directions given by the Tribunal, the respondents filed a statement of evidence. They assert the trees are more than 2.5m in height and leaf litter, including leaves, flowers, fruit, seeds, and dead wood, falls on the applicant’s land. [10] The trees, they continue, were on the common boundary, and of comparable size, when the pool was installed in 2009. Any damage to tiles, they assert, is as a result of heaving and slippage. -- 3 of 12 -- 4 [11] Filed with the response are several photographs, including photographs of the trees taken in 2008 and 2021, and photographs of damaged retaining walls. Applicant’s response [12] The applicant filed a statement of evidence responding to the respondents’ statement. She opens the response stating: My application is for the maintenance and trimming of trees residing on the neighbouring property at 127 Arnold St, Holland Park. [13] She then refers to section 11 of the ND Act (meaning of fence), section 12 (meaning of dividing fence), section 13 (meaning of sufficient dividing fence) and section 20 (liability for fencing work). Legislation [14] 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. [15] 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. [16] 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 -- 4 of 12 -- 5 (d) a plant prescribed under a regulation to be a tree for chapter 3 of the ND Act.1 [17] 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, and the land adjoins the land on which the tree is situated.2 [18] 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. [19] 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.3 [20] 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 land4; (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 land5. [21] Section 57 of the Act provides for the giving of a notice for particular overhanging branches. The section only applies if the branches extend over the neighbour’s land at least 50cm from the common boundary and are 2.5m or less above the ground. [22] 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; 1 Section 45(1) of the ND Act. 2 Section 46 of the ND Act. 3 Section 49 of the ND Act. 4 Section 52(1) of the ND Act. 5 Section 52(2) of the ND Act. -- 5 of 12 -- 6 (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.6 [23] 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 safety7 and removal or destruction of a living tree is to be avoided8. 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; ... (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; ... (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. [24] The applicant alleges serious damage to the applicant’s land or property on the applicant’s land thereby engaging section 74 of the ND Act. In the circumstances, the Tribunal may consider: (a) 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; and 6 Section 65 of the ND Act. 7 Section 71 of the ND Act. 8 Section 72 of the ND Act. -- 6 of 12 -- 7 (b) any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.9 [25] It may also consider: (a) how long the neighbour has known of the injury or damage; and (b) any steps that have been taken by the tree-keeper or the neighbour to prevent further injury or damage; and (c) anything other than the tree that may have caused, or contributed to, some or all of the injury or damage; and (d) any other matter the Tribunal considers relevant.10 [26] Finally, because the applicant alleges the trees have caused, or are causing, substantial, ongoing, and unreasonable interference with the use and the enjoyment of the applicant’s land, the Tribunal may consider the matters in section 75 of the ND Act. They included: (a) anything other than the tree that has contributed, or is contributing, to the interference; and (b) any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and (c) the size of the neighbour’s land; and (d) whether the tree existed before the neighbour acquired the land; and (e) for interference that is an obstruction of sunlight or a view - any contribution the tree makes to the protection or revegetation of a waterway or foreshore. [27] 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.11 [28] If interference that is an obstruction of sunlight or a view is alleged, the Tribunal may only make an order under section 66(2)(b)(ii) if: (a) the tree rises at least 2.5m above the ground; and (b) the obstruction is: (i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or 9 Section 74(1) of the ND Act. 10 Section 74(2) of the ND Act. 11 Section 66(2) of the ND Act. -- 7 of 12 -- 8 (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.12 [29] 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) 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 out 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 [30] Window, defined in section 66(6) of the Act, includes a glass door, window forming part of a door, skylight, or other similar thing. Discussion Introduction [31] The applicant’s land, it is alleged, as at the date of the application, is affected by the trees. It follows the Tribunal has jurisdiction to hear and decide the dispute. [32] The trees are on land recorded in the freeholder land register. It is uncontroversial the trees are trees within the meaning of section 45 of the ND Act, the respondents are tree-keepers within the meaning of section 48 and the applicant is a neighbour in relation to the trees and the tree-keepers within the meaning of section 49. [33] The respondents are responsible for cutting and removing any branches of the trees that overhanging the applicant’s land. The material filed in the Tribunal, in particular the photographs, show they have not done so. [34] They are also responsible for ensuring the trees do not cause: (a) serious damage to the applicant’s land or any property on the applicant’s land; or (b) substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the applicant’s land. [35] The applicant asserts the applicant’s land is affected by branches from the trees 12 Section 66(3) of the ND Act. 13 Section 66(5) of the ND Act. -- 8 of 12 -- 9 overhanging the applicant’s land. Specifically, she alleges damage and interference by reason of the following: (a) leaf litter; (b) staining of the sandstone paving around the pool; (c) obstruction of sunlight to the outdoor patio area; and (d) damage to tiles in the outdoor patio area. [36] She is applying to the Tribunal for an order that the overhanging branches be removed. [37] Additionally, she is applying to the Tribunal for an order requiring the respondents to pay the costs associated with removing the overhanging branches and an order requiring the respondents to pay compensation to her for damage to the applicant’s land or property on the applicant’s land. Section 66 matters [38] I am satisfied the applicant has made a reasonable effort to reach agreement with the respondents. It is not suggested there is any relevant local law, local government scheme or local government administrative process to resolve the issues. [39] The issues relate to the applicant’s land being affected because branches from the trees overhang the land. The branches, I find, extend to a point over the applicant’s land that is at least 50cm from the common boundary, the applicant cannot properly resolve the issue using the process under part 4 of the ND Act and the applicant has given the copies of the application under section 63 of the Act. Sections 71 - 73 matters [40] Safety is not in issue between the parties. The applicant does not seek removal or destruction of the trees. [41] I have considered each of the matters in section 73 of the Act, to the extent relevant. Section 74 matters [42] The applicant alleges the trees have caused, are causing, or are likely to cause serious damage to the applicant’s land or property on the applicant’s land. In the circumstances, to the extent relevant, I have considered the matters in section 74. Section 75 matters [43] The applicant alleges the trees have caused, or are causing, substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant’s land. In the circumstances, I have considered the matters spelt out in section 75 of the Act. [44] I turn now to consider the alleged damage and interference. -- 9 of 12 -- 10 Leaf litter and staining of the sandstone [45] In Barber v Kyriakides14, a decision of the New South Wales Land and Environment Court, the Court formulated the principal 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.15 [46] The Queensland Court of Appeal, in Graham & Ors v Welch16, expressed similar views. Muir J said: ... Trees on suburban residential allotments contribute significantly to their amenity and that of the surrounding neighbourhood. Their value is not merely aesthetic in nature, although that is obviously important in itself. As well as providing shade and shelter, they can act as wind breaks, help retain soil, provide, or improve privacy and attract birds and other wildlife. Their manifold benefits do not come without disadvantages, as many neighbourhood disputes over trees will testify. A householder who may not object to the shade provided by a neighbour’s tree in summer may be less enamoured of its shade in winter, its leaves on lawns, pathways and in guttering and its roots in pipes and foundations. Nevertheless trees, often too large for, and otherwise unsuited to their position if measured by the standards of landscape architects, are part and parcel of Queensland suburbia. Residents of Queensland are generally aware of their benefits and disadvantages and of the hazards which they pose.17 [47] Atkinson J, in separate reasons for decision, said: ... 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 ...18 [48] More recently, the Tribunal, in Finch v Grahle19, citing Vecchio v Papavasiliou20 and Thomson v White21, said: 14 [2007] NSWLEC 292. 15 Ibid, at [20]. 16 [2012] QCA 282. 17 Ibid, at [1] – [2]. 18 Ibid, at [24]. 19 [2017] QCAT 80. 20 [2015] QCAT 70. 21 [2012] QCAT 381. -- 10 of 12 -- 11 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.22 [49] What constitutes a serious injury or damage, and substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan23, 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. [50] I accept leaf litter is falling on the applicant’s land, in the pool, and blocking the gutters. I also accept the leaf litter is staining the sandstone paving around the pool but can be removed. Whilst no doubt inconvenient, leaf litter is a natural incident of suburban living. I am not satisfied the leaf litter is causing serious damage to the applicant’s land or any property on the applicant’s land, or substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the applicant’s land. Obstruction of sunlight [51] An obstruction of sunlight is interference only if: (a) the tree rises at least 2.5m above the ground; and (b) the obstruction is a severe obstruction of sunlight to a window or roof of the dwelling on the neighbour’s land. [52] I am satisfied the trees rise at least 2.5m above the ground. However, the obstruction alleged is of sunlight to the outdoor patio area, not to a window or roof of a dwelling on the applicant’s land. Further, and in any case, there is no satisfactory evidence the obstruction is severe. Damage to tiles in outdoor patio area [53] The applicant, in the application, alleges, “… possible tree root damage causing tiling to lift and crack…” The photographs filed in the Tribunal depict tiles that have lifted and cracked. [54] The respondents assert any damage is as is as a result of heaving and slippage. [55] The scant material filed by the parties does not enable the Tribunal to reach a 22 Ibid, at [24]. 23 [2013] QCATA 304. -- 11 of 12 -- 12 concluded view on the cause of any damage. There is evidence of tiles having lifted and cracked. However, there is no evidence of the cause of the damage, whether by the roots of the trees or otherwise. Decision [56] I am satisfied, to the requisite standard, the respondents are not cutting and removing branches of the trees that overhang the applicant’s land. I am not satisfied the leaf litter is causing serious damage to the applicant’s land or any property on the applicant’s land, or substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the applicant’s land. [57] The obstruction of sunlight alleged is to the outdoor patio area, not to a window or roof of a dwelling on the applicant’s land. Further, and in any case, there is no satisfactory evidence the obstruction is severe. [58] There is no evidence of the cause of the damage to the tiles in the outdoor patio area, whether by the roots of the trees or otherwise. [59] The decision of the Tribunal is as follows: (a) the respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land; (b) the work required by order (a) be carried out: (i) initially within 60 days of this order and thereafter not less than annually; (ii) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and (iii) at the respondents’ cost; and (c) the applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders (a) and (b) with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant. -- 12 of 12 --