Embra v Anderson & Anor [2021] QCAT 387

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Embra v Anderson & Anor [2021] QCAT 387 PARTIES: JOANNE CAROLL EMBRA (applicant) V GLENDA JOY ANDERSON PERSONAL REPRESENTATIVE UNDER INSTRUCTION 712251424 (first respondent) AND ROSLYN RUTH PALMER (second respondent) APPLICATION NO/S: NDR010-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 2 November 2021 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for a tree dispute is dismissed. Each party is to bear its own costs. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether to award costs of application ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to award costs Land Title Act 1994 (Qld) Land Valuation Act 2010 (Qld), s 9, s 10, s 11 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42(1), s 42(2), s 42(3), s 42(4), s 45, s 46, s48(1), s 52, s 63, s 65, s 66, Schedule 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), 4(c),s 32(2), s 47, s 62(1), s 95(1), s 100, s 102 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332 -- 1 of 6 -- 2 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 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 What is the application about? Ms Embra owns a property that she says was impacted by two large sweetgum (liquidambar styraciflua) trees situated on and overgrowing from adjoining land owned by the respondents, Ms Anderson (as representative) and Ms Palmer. In an application she filed on 15 January 2020, Ms Embra noted that on 1 December 2020 a large branch had fallen from one of the trees causing damage to a vehicle parked in the driveway of her property, and that others were in danger of falling as well. She sought orders that the trees be removed or pruned, depending upon the opinion of an arborist, and that her costs of the application be paid by the respondents. The respondents did not file a response, but rather Ms Anderson wrote a letter to the tribunal dated 14 February 2020 indicating that the tree branches fell on account of storm damage and that an arborist had attended to significantly prune the trees on 20 January 2020. On 9 April 2020 the tribunal directed that the parties contribute $500.00 each towards the cost of a tree assessor to be appointed. On 10 October 2020 the tree assessment took place, at which time removal of the two sweetgums was recommended by the tree assessor and agreed by both parties. In November 2020 the first tree was removed and by 9 February 2021 the second tree had been removed, resolving the tree dispute. The only issue remaining to the determined by the tribunal is Ms Embra’s request that the respondents reimburse her filing fee and her contribution towards the tree assessors’ costs. What laws apply? Jurisdiction over tree disputes Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA”) applies to trees situated on land recorded in the freehold land register1 (subject to some exclusions) and tree keepers are responsible for their trees.2 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), the registered owner of the lot under that Act. Section 65 of the NDA prevents the tribunal from making an order in relation to trees unless the applicant neighbour: 1 Section 42(1)(a) of the NDA. 2 Section 52, ibid. -- 2 of 6 -- 3 (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; and (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. Section 46 of the NDA provides: Land is affected by a tree at a particular time if— (a) any of the following applies— (i) branches from the tree overhang the land; (ii) 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 (b) the land— (i) adjoins the land on which the tree is situated; or (ii) would adjoin the land on which the tree is situated if it were not separated by a road. It is not disputed that the tree caused serious damage to property on the applicant’s land. Section 66 of the NDA: (a) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; and (b) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land. Under section 66(2) of the NDA, the tribunal can make orders in relation to trees in order to: (a) prevent serious injury to any person; (b) remedy, restrain or prevent - -- 3 of 6 -- 4 (i) serious damage to the neighbour’s land or any property on it; and (ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. Section 72 of the NDA provides that the removal of a tree should be an order of last resort. Tree assessors assist the tribunal by providing expert evidence.3 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.4 The Tribunal’s role The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”)5 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;6 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.7 Procedural powers Section 62(1) of the QCAT Act permits the Tribunal to give a direction at any time in a proceeding and 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 without those parties or their representatives appearing at a hearing.8 These proceedings are known as decisions made “on the papers”. Section 47 of the QCAT Act allows the tribunal to strike out or dismiss a proceeding (47(2)) but the power should only be exercised “sparingly” and “to prevent an abuse of process when a claim is groundless or futile”.9 The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal.10 3 Section 112, QCAT Act. 4 Practice Direction 7 of 2013. 5 Section 3(b) of the QCAT Act. 6 Section 4(b), ibid. 7 Section 4(c), ibid. 8 Section 32(2) QCAT Act. 9 Yeo v Brisbane Polo Club Inc [2013] QCAT 261,[5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62. 10 Section 95(1) QCAT Act. -- 4 of 6 -- 5 I am satisfied that the remaining issue of costs is appropriate for an on-the-papers11 decision having regard to the tribunal’s mandate to conduct matters in a way that is quick and economical. The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the tribunal before making an on the papers decision.12 I am satisfied that such an opportunity was given to the parties in this instance. As to costs, the starting point in the tribunal is that each party to a proceeding must bear its own costs13. However, the tribunal can order costs if it considers it is in the interests of justice to do so.14 In deciding whether to award costs in a matter the tribunal may have regard to factors15 such as: (a) whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding; (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) the financial circumstances of the parties; and (e) anything else the tribunal considers relevant. Findings and Decision As the sweetgum trees were removed after the application was filed, and they did cause serious damage to the applicant’s property at that time, then, as at the date of the application the applicant’s claim that her property was affected by the trees triggers the tribunal’s prima facie jurisdiction over the dispute. The material attached to the application establishes a prima facie case that the applicant made a brief effort to resolve the matter with the respondents, but then progressed urgently to the tribunal given the serious damage caused and her concern regarding further risks. The respondents say the application to the tribunal was premature as they had acted swiftly from 2 December 2020 to remove the trees and the applicant’s focus was on payment for the damage rather than resolving the tree dispute. It is possible that, once evidence was tested at a final hearing, the respondents may have convinced the tribunal that Ms Embra did not make a reasonable effort to reach agreement with them as required until section 65 of the NDA. Notably, although the matter did not progress to a hearing and none of the evidence could be tested, the opinion of the tree assessor supported Ms Embra’s case and recommended tree removal. To the respondents’ credit, they accepted the recommendations and proceeded to have the trees removed. 11 Section 32(2), ibid. 12 Section 95(1), ibid. 13 Section 100, QCAT Act. 14 Section 102(1), ibid. 15 Section 102(3), ibid. -- 5 of 6 -- 6 Tree removal is an outcome of last resort and, in my view, the respondents were entitled to wait for the tree assessment before having the trees removed. Prior to the assessment, and shortly after the 1 December 2020 incident, they had branches pruned to address imminent safety concerns. As the tree dispute itself has resolved, the proceedings should be dismissed. On the issues of costs, I am not convinced that the factors favour an award for costs because: (a) I am not satisfied that the respondents acted in a way that disadvantaged the applicant in the proceeding. The respondents filed an (informal) response indicating a willingness to remove the trees if they were deemed unsafe and did remove the trees once the tree assessment determined that they ought to be removed; (b) The dispute is not overly complex in nature; and (c) There is little evidence about the parties’ financial positions, other than the respondents’ mention that Ms Anderson is a pensioner with “no form of income”.16 For those reasons, I make the following orders: (a) The application for a tree dispute is dismissed. (b) Each party is to bear its own costs. 16 Informal response dated 14 February 2020. -- 6 of 6 --