Finlay v Miller [2021] QCAT 444

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Finlay v Miller [2021] QCAT 444 PARTIES: CAROL CHRISTINE FINLAY (applicant) V JULIE LORRAINE MILLER (respondent) APPLICATION NO/S: NDR136-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 22 October 2021 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: 1. The application for miscellaneous matters is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – application for interim orders – whether weeds pose biosecurity risk ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to make interim orders – whether trees pose biosecurity risk Biosecurity Act 2014 (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 57, s 58, s 63, s 66, s 72 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, s 112 Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill v Beach Plaza Pty Ltd [2015] QCAT 230 Gosbell v Linehurst Pty Ltd [2015] QCAT 74 Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and -- 1 of 5 -- 2 Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is the application about? Dr Finlay owns a property that she says is impacted by several species of trees that overhang her property from Ms Miller’s property. She says the overhanging trees and falling fronds are an eye-sore and obstruct her view, and that her ongoing efforts to cut them back have caused injury including lower back pain from excessive bending and squatting. She also says the tree are noxious and invasive weeds. By an application for a tree dispute filed 11 August 2021, Dr Finlay seeks orders that the trees be removed and/or their branches and roots pruned, and that Ms Miller pay her compensation of $5,000 towards funds she has spent on having contractors remove overhanging trees and as general compensation for medical and other impacts on Dr Finlay. Dr Finlay attached to her application her medical records, photographs of the offending trees and a summary of the species of trees she has identified on her neighbour’s property. On 17 September 2021, Dr Finlay filed an application for miscellaneous matters seeking orders that the trees be removed (essentially mirroring the orders sought in the initiating application) urgently to comply with: (a) Ergon safety guidelines; (b) the Biosecurity Act 2014 (Qld); (c) Department of Agriculture and Fisheries requirements; and (d) section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA”). The expressed reasons for Dr Finlay seeking the interim orders are that under the Biosecurity Act owners with invasive plants under their control are required to take reasonable and practical steps to minimise their spread. Dr Finlay says Ms Miller has failed in these obligations and that if the invasive plants are not removed, they will continue to grow, to seed prolifically and as a matter of proximity they therefore pose a World Heritage biosecurity threat to surrounding areas including national parks. No additional evidence was submitted to support the application for interim orders. On 22 October 2021 I made an on the papers decision to refuse the application for miscellaneous matters. On 29 November 2021 a request for reasons was filed and those reasons now follow. -- 2 of 5 -- 3 What laws apply? Jurisdiction over tree disputes Chapter 3 of 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 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. 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 - (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. Overhanging branches can be dealt with by a neighbour and a contribution of $300 sought from the tree keeper if the tree keeper fails to do so after receiving notice under section 57 of the NDA.3 Section 72 of the NDA provides that the removal of a tree should be an order of last resort. 1 Section 42(1)(a) of the NDA. 2 Section 52, ibid. 3 Section 58, ibid. -- 3 of 5 -- 4 Tree assessors who are qualified arborists frequently assist the tribunal by providing expert evidence.4 The assessor will inspect the tree/s and properties the subject of the dispute and provide a report that, among other things, identifies the species of trees and 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.5 The Biosecurity Act 2014 (Qld) (“the Biosecurity Act”) commenced on 1 July 2016, introducing comprehensive biosecurity measures to safeguard economy, agriculture, tourism and environment from: (a) pests (e.g. wild dogs and weeds) (b) diseases (e.g. foot-and-mouth disease) (c) contaminants (e.g. lead on grazing land). Biosecurity and weeds The Biosecurity Act identifies and make provision for prohibited6 and restricted7 plant species, but plants that fall outside of these categories that are considered “invasive” and left to local authorities to regulate. Bamboo, easter cassia and umbrella trees, for example are weed species which have been identified in the Townsville region but are not listed in the Biosecurity Act.8 Interim applications Justice is often achieved after a full hearing and tested evidence in a matter. However, 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. Interlocutory applications may be decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.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 I am satisfied that such an opportunity was given to the parties in this instance. Section 58 of the QCAT Act permits the tribunal to make an interim order to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding. In Gosbell v Linehurst Pty Ltd11 Senior Member Howard said that the issue is whether the applicant has a good arguable case, and if so, whether on the balance of 4 Section 112, QCAT Act. 5 Practice Direction 7 of 2013. 6 Schedule 1 of the Biosecurity Act. 7 Schedule 2 of the Biosecurity Act. 8 Townsville City Biosecurity Plan 2020-2024 - Appendix 3. 9 Section 32(2), ibid. 10 Section 95(1), ibid. -- 4 of 5 -- 5 convenience the order should be made. Further, that it is not for the tribunal “to reach any final conclusions about the issues raised, as that will be a matter for the final hearing, if the matter is not resolved before that time”. Findings and Decision I am not satisfied on an interim basis that Dr Finlay has established: (a) that Ms Miller’s trees are prohibited or restricted plants under the Biosecurity Act; (b) that there is an urgent or imminent need to make orders in relation to the trees to prevent serous injury to a person or property damage on an interim or even a final basis; (c) that Ms Millers trees are otherwise offending any local laws or Ergon guidelines. Dr Finlay has not produced evidence to support any of the claims made in the interim application. Nor is there any independent or expert evidence to support her application on a final basis – this usually follows in the due course of a tree dispute’s progression through the tribunal, including and most commonly by way of a tree assessment. The proper place to test Dr Finlay’s application is the final hearing. At this interim stage and on the evidence currently before the tribunal, there is no evidence to support any orders and particularly not an order to remove trees – being an order of last resort. For those reasons, I made an order dismissing the application for interim orders. 11 [2015] QCAT 74 at [9], cited by Member Allen in Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill v Beach Plaza Pty Ltd [2015] QCAT 230 at [9]. -- 5 of 5 --