Boater & Anor v Kwok & Anor [2023] QCAT 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boater & Anor v Kwok & Anor [2023] QCAT 144 PARTIES: IAN BOATER & BRIONHY MELISSA BOATER (applicants) V ROBERT CHING HANG KWOK AND JENNY KWOK (respondents) APPLICATION NO/S: NDR216-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 17 April 2023 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: 1. The application for strike out/dismissal filed 27 January 2022 is refused. 2. The application for a tree dispute is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether leaf litter amounts to substantial, ongoing and unreasonable interference – where strike out refused ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where interference to pool by leaf and flower litter Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 18, s 42, s 45, s 46, s 48, s 49, s 52, s 63, s 65, s 66, s 75, Schedule 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, 4, s 23, s 32, s 47, s 62 Agar v Hyde (2000) 201 CLR 552 Briginshaw v Briginshaw (1938) 60 CLR 336 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Finch v Grahle [2017] QCAT 80 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Graham & Ors v Welsh [2012] QCA 282 -- 1 of 10 -- 2 Markan v Bar Association of Queensland [2013] QSC 146 Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162 Spencer v Commonwealth (2010) 241 CLR 118 Thomsen v White [2012] QCAT 381 Vecchio v Papavasiliou [2015] QCAT 70 Yeo v Brisbane Polo Club Inc [2013] QCAT 26 APPEARANCES & REPRESENTATION: At the parties’ request, 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 What is the application about? The Boaters say that use and enjoyment of their urban property is impacted by substantial, ongoing, and unreasonable interference by leaf and flower litter from a Tipuana tree1 (the Tree) situated on the adjoining land owned by their neighbours, the Kwoks. On 18 December 2020, the Boaters applied for orders requiring that branches of the tree be removed or pruned at the Kwoks’ cost.2 In a response filed 12 January 2021, and in an application for miscellaneous matters seeking strike out filed 27 January 2022, the Kwoks say the Tree is safe, contained wholly within their land, that no works or orders are necessary, and that the Boaters’ application should be dismissed. The parties consented to a decision ‘on the papers’ on the application for strike out, and, if strike out is refused, on the application for a tree dispute. I have dismissed both the strike out application and the application for a tree dispute for the following reasons. What laws apply? Jurisdiction over tree disputes Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) applies to trees situated on land recorded in the freehold land register3 with some exception.4 A “tree” is defined in section 45 of the NDA and includes any woody perennial plant and any plant resembling a tree in form or size, which would include a plant classified as a ‘weed’. Tree keepers are responsible for their trees.5 1 Also known as the rosewood, tipu tree or ‘yellow jacaranda’. 2 Application for a tree dispute filed 19 December 2020, Part F, Question 39. 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA), s 42(1)(a). 4 Ibid, s 42(3)&(4). 5 Ibid, s 52. -- 2 of 10 -- 3 Under section 48(1)(a) of the NDA a “tree keeper” is, 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) (LTA) the registered owner of the lot under that Act, and under section 49 a “neighbour” is, if the land affected by the tree is a lot recorded in the freehold land register under the LTA, the registered owner of the lot under that Act. I am satisfied from filed title searches that the Kwoks are “tree-keepers” for the purpose of this application and that the Boaters have standing to bring the application as their “neighbours”. Section 65 of the NDA prevents the Tribunal from making an order in relation to trees unless the applicant neighbour: (a) has made a reasonable effort to reach agreement with the tree-keeper; (b) 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, cannot engage their common law right of abatement and the process in part 4 to resolve the dispute; and (d) has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived. I am satisfied that the parties attempted to informally mediate the tree dispute (by having discussions and getting works on tree works that might be required) prior to the filing of the application, that these were a reasonable effort to resolve the dispute and that the requirements of section 65 have otherwise been met. Relevant to the Boaters’ application: (a) Under section 46 of the NDA: Land is affected by a tree at a particular time if— (a) any of the following applies— …(ii) the tree has caused, is causing, or is likely within the next 12 months to cause— …(C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land. (b) Under section 66(2) of the NDA, the Tribunal can make orders in relation to trees to remedy, restrain or prevent substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land. When assessing unreasonable interference, the Tribunal may have regard to:6 (a) anything other than the tree that has contributed to the interference; (b) steps taken by the parties to rectify or reduce the interference; (c) the size of the neighbours’ land; and (d) whether the tree existed before the neighbours purchased the land. 6 Section 75, ibid. -- 3 of 10 -- 4 Strike out applications The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)7 include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick, and, to that end, section 4 of the Act requires the Tribunal, among other things, to: (a) encourage the early and economical resolution of disputes before the Tribunal;8 and (b) ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.9 Section 62(1) of the QCAT Act permits the Tribunal to give a direction at any time in a proceeding and to do whatever is necessary for the speedy and fair conduct of the proceeding. Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties ‘on the papers’, without those parties or their representatives appearing at a hearing.10 Under section 47 of the QCAT Act, the Tribunal can dismiss a proceeding if, among other things, it considers the proceeding to be frivolous, vexatious, misconceived or lacking in substance. However: (a) The power to strike out ought only to be exercised “sparingly” and “when a claim is groundless or futile”.11 (b) In considering a strike out application, the evidence should be weighed to reach a conclusion about whether the applicant has an arguable case.12 (c) A lack of any cause of action must be very clear,13 and the Tribunal ought to be satisfied to a “high degree of certainty about the outcome” to strike the proceeding out.14 (d) Summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.15 The applicants’ case The Boaters rely on the following evidence: (a) Extract from the Brisbane City Council website on weed identification dated 7 December 2020 indicating that the Tree is considered a class ‘R’ weed which is 7 QCAT Act, s 3(b). 8 Ibid, s 4(b). 9 Ibid, s 4(c). 10 Ibid, s 32(2). 11 Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62. 12 Dey v Victorian Railways Commissioners [1949] 78 CLR 62. 13 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 14 Yeo, ibid at [6], citing Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146. 15 Spencer v Commonwealth (2010) 241 CLR 118. -- 4 of 10 -- 5 not notifiable, but the intention is to reduce populations of the weed in the urban environment. (b) A quote from Brisbane Treeworks dated 27 November 2020 that refers to having the left-hand leader removed and cut back to the main growth point at a cost of $1,870 including GST. (c) Various colour photographs evidencing leaf litter to the pool at 8:31am, 8:41am, 12:56pm, 1:23pm and 5:30pm on 15 November 2020 before and after cleaning. Leaf litter largely comprises yellow flowers typical of the Tree. (d) Colour photographs taken on 16 November 2020 at 8:44am, 9:01am, 5:13pm, and further photographs taken on 17 November 2020 showing an example of the accumulation of flower litter if daily cleaning and multiple cleans are not done throughout the day to keep the pool clean. (e) Photographs showing examples of the flower litter covering the decks as well as the pool. (f) Colour photographs indicating that if daily cleaning is not maintained the flowers stick to the bottom of the pool, causing staining on the pool floor. (g) Colour photographs that indicate that if the deck is not maintained the flowers can dry and stick to the deck when mixed with pool water. (h) Colour photographs showing context/position of the Tree from the street front and its proximity to the neighbouring pool. The Boaters say that: (a) Prior to the filing of the application the Kwoks sought three quotes and arborists’ advice following a discussion had between the parties regarding the Tree. (b) The Boaters didn't see the quotes or speak with the first two arborists but met with the third as the Kwoks invited them onto the property while the arborist was there to discuss their advice. (c) The third arborist advised the Kwoks that the two top branches leading towards the Boaters’ property, which were approximately two to three metres in length each could be pruned and suggested that the Boaters install a shade sail across the pool and leaf blow the collected leaves back onto the Kwoks’ property to manage the leaf and flower litter from the Tree. (d) The Kwoks suggested that they would share in the cost of the installation of the shade sail, however the Boaters were not comfortable having anchoring points installed to support the sail and did not wish to incur any cost to install the shade sail, irrespective of whether it was shared or not. After that, the Boaters engaged Treeworks to give their opinion, and say that opinion was that removing the top two branches would have no benefit in reducing the leaf or flower litter. They said the left-hand leader growing towards the Boaters’ property should be cut back to the main growth point and that this would leave 50% of the Tree remaining which would still provide shade, with a 50% reduction of litter to the pool. This was not accepted by the Kwoks. The Boaters say that the Tree is fast growing and deciduous, dropping leaves for 2 months and flowers for another 2 months of the year. -- 5 of 10 -- 6 Additional submissions from the Boaters include: (a) Text message exchange between the parties regarding the various arborist visits new line Additional photographs of the tree taken on one December 2020 and two January 2022 showing comparison images depicting the growth of the tree over one year. (b) That the Tree will surpass their boundary within the next year because it exceeds 2.5 metres and therefore, they cannot exercise their right of abatement with respect to overhanging branches when it happens. (c) Photographs from 28 October 2021 showing the use of a pool cover and flowers falling onto the pool cover, 26 October 2021 and 23 August 2021 showing flowers falling to the bottom of the pool in respect of which the applicant say they need to use their pool cleaner and then scrub by hand to remove the staining from the pool. (d) A web extract from O’Brien’s Tree Care & Landscaping indicating that the Tree is a declared weed previously planted as an ornamental and shade tree however now posing an environmental threat to woodlands, riverbank vegetation communities and urban bushland. It also says that council’s policy is to reduce the number of these past trees, so tree removal should be considered. (e) Extract from Brisbane Treeworks identifying the Tree was one of the “worst trees to plant in your home” as they grow to approximately thirty metres wide and twenty metres high, making them a great shade tree but in a yard rendering it likely too big to handle. (f) Extract from Aussie Tree Solutions website indicating similarly that the trees can grow to twenty metres high and aren't suitable for a backyard garden, again saying its best to have these trees removed. (g) Extract from Trees, Palms & Stumps website that identifies the Tree as one of the five worst trees to plant near a house. The Boaters acknowledge that ‘normal tree litter’ is not typically classed as substantial and has not in other cases amounted to the requisite level of interference to warrant tree orders being made. However they say that their photographic evidence supports their submission that the leaf and flower litter dropped in their yard for four months of the year is not normal tree letter because it requires them to clean the pool three times a day during this four-month shedding, which is an unreasonable amount of daily cleaning impact negatively their enjoyment of their land and prevents them from spontaneously using the pool without having to factor in cleaning time prior to using it. The Boaters say they have taken various steps to try and rectify the problem themselves including cleaning frequently and using a pool cover. However, if they do not remove the leaf litter, this results in mould on the pool cover. They say the Kwoks have other trees providing shade in their backyard and the reduction of the left-hand leader from the Tree will significantly reduce the leaf and flower litter in their pool while still allowing the Kwoks to keep most of their tree and shade from other trees in their yards. The Boaters also say that Brisbane Treeworks indicated that the removal of the left leader would not impact the health or safety/ stability of the tree because it is a well-established tree. -- 6 of 10 -- 7 The Boaters say that usual work from “expected inference” by the Tree should amount to weekly maintenance including leaf skimming, weekly maintenance cleaning the bottom of the pool, daily running of the pool filter and weekly cleaning of the skimmer box, at an average of one hour per day. However, four months of the year they say they experience “substantial and unreasonable interference” as they are required to undertake three times daily leaf skimming, two to three times daily maintenance clearing leaf and flower litter from the top and bottom of the pool, daily running of the pool filter with two daily cleanings of the skimmer box so that it does not block the flow of water in the pool pump, amounting to approximately five and a quarter hours per week. The respondents’ case In response submissions the Kwoks say: (a) The Tree does not pose a safety issue, overhang the common boundary, or interfere with the applicants’ property. (b) The Tree existed before the pool was constructed and before the Boaters acquired the land. (c) The Kwoks experience enjoyment from the garden shade for playing, rest, privacy from their rear neighbour and native wildlife on account of the Tree. (d) The Kwoks purchased their property because of the aesthetic beauty of the established Tree. (e) Excessive pruning of the Tree would impact their enjoyment of their land, diminish their property value, affect the aesthetics of the Tree and remove wildlife habitat. The Kwoks attached photographs of their rear yard upon which they indicated what the impact would be if the left leader of the tree was removed. They also attached an Energetic Tree Lopping quotation dated 19 November 2020 which provided a quote to cut the major right-hand limb going towards the Boaters’ house down to the fork, same with the smaller left hand limb, to reduce growth towards house, reduce overhang into back neighbours, at a cost of $1,210. No tree assessment Tree assessors typically assist the Tribunal by providing expert evidence.16 The assessor will inspect the tree/s and properties the subject of the dispute and provide a report that outlines solutions to the issues raised in the application from which the parties will be invited to reach agreement, or the matter will proceed to a hearing on the basis that the tree assessor’s evidence will be the only expert evidence permitted at the hearing.17 At a directions hearing the parties were given an opportunity for the Tribunal to appoint a tree assessor to assess the tree and the impact it was having on the Boaters’ property but both parties declined, preferring a decision to be made on the papers based upon evidence and written submissions of the parties themselves. 16 Section 112, QCAT Act. 17 Practice Direction 7 of 2013. -- 7 of 10 -- 8 Consequently, there is no expert arborists’ evidence before the Tribunal. Each party provided quotes for pruning but the quotes do not offer an opinion as to: (a) whether the pruning is necessary, (b) whether and how pruning would impact the health and structural stability of the Tree, or (c) whether and how pruning would reduce the leaf and flower litter experienced and complained of by the Boaters. Findings and Decision The strike out application It is a dispute of fact as to whether the impact of the leaf litter upon the Boaters’ use and enjoyment of their land amounts to substantial, ongoing, and unreasonable interference. As mentioned, this requires an assessment of the circumstances including factors other than the tree contributing to the interference, steps taken to reduce the interference, the size of the land and whether the tree existed before the neighbours purchased the land. The applicants face a daunting prospect of establishing substantial, ongoing, and unreasonable interference by leaf litter alone. As Senior Member Brown observed in Finch v Grahle [2017] QCAT 80:18 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. However, it is impossible to say, with the required high degree of certainty19 that their claim is “groundless or futile”20 before their evidence of interference and the surrounding circumstances regarding the Tree and the property impacted by it are assessed and findings of fact made. There are factual issues in dispute and capable of dispute and in those circumstances summary dismissal is not warranted.21 The application to strike out is dismissed on that basis. The application for a tree dispute As mentioned, land is affected by a tree at a particular time if the tree has caused, is causing, or is likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.22 18 See also Vecchio v Papavasiliou [2015] QCAT 70. 19 Yeo, ibid at [6], citing Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146. 20 Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62. 21 Spencer v Commonwealth (2010) 241 CLR 118. 22 Section 46, NDA. -- 8 of 10 -- 9 The Tribunal can make orders in relation to trees to remedy, restrain or prevent that substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.23 I accept the photographic evidence that leaf and flower litter from the Tree inconveniences the Boaters and interferes with their use and enjoyment of their land. Four months in each year they are required to clean their pool and deck of leaf and flower litter more frequently that would otherwise by the case so that they can swim in their pool and to avoid staining of the pool and deck and damage to their pool pump from litter build-up. But is this interference substantial, ongoing, and unreasonable? Turning to the section 75 factors: (a) It does not appear that anything other than the Tree that has contributed to the interference, other than the decision (made prior to Boaters’ ownership of the land) to construct the pool at the adjoining boundary of land that featured a large, established tree. (b) The Boaters have taken some steps to reduce the interference using a pool cover but have not undertaken further steps such as using a shade-sail, even with the offered contribution to the cost from the Kwoks. (c) The Boaters’ land is approximately 405m2, so quite small. (d) The Tree existed before the Boaters purchased the land. 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.24 In Graham & Ors v Welch,25 Atkinson J of the Court of Appeal said: Trees and bushes are commonplace 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. Muir J, agreeing with Atkinson J observed that: [1] …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. [2] 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 23 Section 66, ibid. 24 Thomsen v White [2012] QCAT 381. 25 [2012] QCA 282 at [24]. -- 9 of 10 -- 10 Queensland are generally aware of their benefits and disadvantages and of the hazards which they pose. The evidence before the Tribunal is that: (a) The interference occurs four months out of the year – whilst it is ongoing in the sense that it repeats, annually, it is not a continuous interference nor is it for most of the year. The interference to the Boaters is the requirement that they clean and maintain their pool and deck more often than they would otherwise need to during those four months. This is inconvenient but does not go beyond that. (b) The staining and impact on the deck, pool and pool cover does not amount to serious damage to property. Nor is there a report or evidence with respect to any likelihood that the leaf and flower litter will cause functional damage to the pool pump or filter. Whilst there are remedies in the NDA for the likelihood of serious damage, that standard is not met on the evidence before the Tribunal. (c) The Tree is a weed and not ideal for urban lots, however, it was present and well-established when the Boaters purchased their home. They say “no one could ever foresee the amount of leaf litter that would blow into our year every year, four months of the year” but I would have expected that a pre-purchase inspection and identification of the tree might have foreseen exactly that. (d) According to the Kwoks, the Tree was a drawcard when they purchased their home, and they enjoy the privacy and shading the Tree provides them, although the Boaters point out that there are other trees in their yard that offer shade. There are no arborists reports that identify the age or size of the Tree and the pruning quotes do not comment on whether the different methods of pruning quoted will resolve the leaf litter issue, nor do they outline the impact the pruning will have on the Tree. Even if I was inclined to make tree orders, I could not confidently do so given that dearth of evidence. In any event, to make tree orders, I am required to be satisfied, on the balance of probabilities, that the leaf litter deposited by the Tree creates an interference to the Boaters that is substantial, ongoing, and unreasonable. The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. According to Justice Dixon in Briginshaw v Briginshaw26 “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. I am not satisfied on the evidence before the Tribunal that the Tree is causing an interference to the Boaters that is substantial, ongoing, and unreasonable to justify the making of tree orders. The application for a tree dispute is dismissed on that basis. 26 (1938) 60 CLR 336 at 362. -- 10 of 10 --