Barnes & Anor v McKinley & Anor [2020] QCAT 185

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Barnes & Anor v McKinlay & Anor [2020] QCAT 185 PARTIES: ROBIN BARNES (first applicant) AVRIL FALLAT (second applicant) v IAN MCKINLAY (first respondent) MARY MCKINLAY (second respondent) APPLICATION NO/S: RWL002-19 MATTER TYPE: Other civil dispute matters DELIVERED ON: 19 May 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: 1. The application for renewal is granted. 2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Robin Barnes and Avril Fallat; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3: (a) To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees; -- 1 of 11 -- 2 (b) All works will be carried out at the cost of Robin Barnes and Avril Fallat paying 50% of total cost and the applicants in RWL 001-19, Rowan Carr and Felicity Carr, the other 50% of the total cost; (c) The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and (d) Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date. 3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Robin Barnes and Avril Fallat giving them 14 days written notice. 4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – renewal – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s 134, Schedule 3 Bielby v Beilby & McGrath [2010] QCAT 649 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 Wood v Kenyon [2020] QCAT 119 APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 2 of 11 -- 2 REASONS FOR DECISION Nature of Proceeding [1] This application for renewal proceeding is interconnected with several other proceedings (NDR 172-18, RWL 001-19, NDR 177-18, NDR 171-18 and NDR 173- 18). [2] Proceedings NDR 172-18, NDR 177-18, NDR171-18 NDR 173-18 were all the subject of the consent orders on 6 December 2018. [3] Only NDR 177-18 and NDR 172-18 are the subject of renewal applications, RWL 001-19 and RWL 002-19 respectively. [4] In this matter, RWL 002-19, the applicants are Robin Barnes and Avril Fallat (“the applicants”). The underlying dispute [5] The essence of this dispute is that the applicants reside in a block of townhouses located next door to a property owned by the respondents (McKinlays). In the language of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the applicants are the neighbours and the McKinlays are the tree keepers. [6] In their original application (NDR 172-18) the applicants in this case allege, amongst other things that as the tree keepers of a number of trees the McKinlays have failed to prevent those trees impacting on the views that the townhouse owners claim that they had previously enjoyed from their townhouse. [7] The applicants’ original application and this application form part of a group of applications that include the four (4) parties who brought the original applications. Two applications were made for a renewal of the consent order. Each of these proceedings were dealt with separately but travelled together. The consent orders [8] On 6 December 2018 after a directions hearing held by the Tribunal all parties agreed to consent orders to end their applications. It is the carrying into effect of those orders which has led to the present dispute. The other active application [9] Of relevance to the current proceedings is the other presently active application for renewal, RWL 001-19. These applications, RWL 001-19 and RWL 002-19 have a high degree of commonality. An example of this is that as part of the directions in the course of the progress of the renewal applications in Queensland Civil and Administrative Tribunal (QCAT) a common arborist’s report was ordered by Senior Member Brown. [10] In recognition of this commonality I will refer to predominately the same information in both sets of reasons; they turn on the same issues with the same expert report. [11] While the applicants in the renewal matters have indicated their views on why the parties in NDR 171 – 18 and NDR 173 – 18 have chosen to not ask for a renewal I do -- 3 of 11 -- 2 not take this into account. These gratuitous comments are not relevant to the current proceedings. Identification of the trees the subject of the dispute [12] It is submitted that the current consent orders cannot be understood, or carried into effect, as the trees the subject of the dispute cannot be identified. To consider this submission, it is necessary to consider the original application. The applicants commenced the dispute in QCAT and as part of that process they were required to complete a QCAT pro forma document. This form contained several questions set out in boxes. These request parties to indicate what their claim is against the other party. Question 35 of the pro forma asks amongst other things about further information relating to the dispute. The second last point in question 35 asks “what kind or species of trees?” In answer the applicants ticked the box and named the tree species as “waterhousia”. There is also an attachment to the form, and this sets out that the applicants have made this application as part of a group. There is further information including photographs and most relevantly the words “waterhousia are commonly known as Lily Pily (sic)”. The application has thus always included the lilli pillies in the relevant area, which impact on the applicants’ view, including as depicted in the photographs. [13] As outlined above, in the course of the proceedings in the current case the Tribunal ordered an arborist’s report. The report by the tree assessor Mr Benjamin Inman was subsequently filed in the Tribunal on 11 October 2019. [14] Mr Inman attended at the tree keepers’ property on 26 September 2019. Essentially Mr Inman’s report described the trees in dispute by way of photograph number and description. For convenience and ease of understanding I will rely upon his description to identify the disputed trees as already included in the consent orders of 6 December 2018. [15] This is relevant to the allegation, made in this application for renewal, that exactly what trees are in dispute is contested (despite the previous agreement reflected in the consent orders). The Tribunal accepts Mr Inman’s report, as the only expert evidence before it in relation to the trees, indicating as it does that some of the trees are waterhousia floribunda, more commonly known as weeping Lilli Pilli. Mr Inman also refers to trees of the genus syzygium and that their common name (at least of some of their species) is Lilli Pilli as well. Both waterhousia and syzygium are, as I understand it, part of the family of trees. Clearly enough, in my conclusion, the dispute and consequent orders concerned the identified trees, which are lilli pillies, and Mr Inman has simply identified them with greater precision. [16] I am satisfied on reviewing the material which was within the knowledge of both parties at the time that the original consent orders were entered into by the parties on 6 December 2018, that the trees the subject of the dispute are identifiable, and identified, from the information in the application. It is only to explicitly clarify the exact trees that I refer to Mr Inman’s report as a means of precisely identifying them. I am satisfied that the trees were identifiable at the time the consent orders were agreed to. [17] Mr Inman offered opinions about the best way forward in this matter. He recommended that the respondents’ trees be reduced in height and that ten of the trees -- 4 of 11 -- 2 known as waterhousia floribunda be removed over a five-year period so that the respondent’s privacy is not greatly impacted upon. It was recommended by him that these trees be replaced by smaller native tree species that only grow to five to six metres in height (waterhousia can apparently grow much taller). [18] If this were a merits review of a tree dispute this may well be a solution that could be considered. However, this is not a solution that appears to be available in the circumstances of renewal, given the relatively confined nature of the remedy, discussed further below. [19] The arborist’s report, whilst helpful, is of course confined to his area of expertise. One does not expect nor should Mr Inman proffer legal opinions on appropriate solutions in renewal applications. [20] In the current renewal proceedings, the applicants allege that the consent order has not been complied with. They argue that there is a dispute about exactly what is meant by the order and that there is an internal tension between orders 1 and 3 of the consent orders. [21] They state that they have been advised by the respondents’ arborist that some of the trees cannot be pruned to five metres and still comply with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. [22] In summary the questions before me are: (a) Can this matter be renewed as requested; (b) Can the original consent orders be understood and complied with as they stand; and (c) What if any relief can this renewal provide to both parties. Legal principles concerning renewal of a decision [23] The jurisdiction for renewal arises under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)(the QCAT Act). It provides for a procedure to address the situation where final orders of the Tribunal either cannot be complied with, or there are problems in interpreting, implementing or enforcing them. Thus, it is distinct from either an appeal or a re-opening. As referred to by Member Hughes in Wood v Kenyon:1 a party to a proceeding may apply to the Tribunal to renew a decision if there are problems with interpreting, implementing or enforcing the Tribunal’s final decision.2 [24] In this case it is suggested by both the applicants and respondents that there is some internal tension between the order to prune the trees the subject of the dispute to five metres (Consent Order 1) and the order requiring this to be done to the relevant Australian standard (Consent Order 3), which does not prescribe this for some of the 1 [2020] QCAT 119. 2 See Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133(1). -- 5 of 11 -- 2 trees; in other words, quintessentially a problem with implementing or enforcing the decision, as contemplated by the renewal procedure. [25] Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) sets out the definition of “decision”. The decision of Tasmanian Seafoods Proprietary limited v Chief Executive, Department of Primary Industries and Fisheries3 states that: The legislature’s desire for finality in Tribunal’s Orders that are difficult to implement or enforce is reflected by the term ‘renewal’ to distinguish it from ‘reopen’. The Tribunal therefore cannot conduct a fresh hearing on the merits as it can for a reopening. [26] Again, in the words of Member Hughes from Wood v Kenyon4: Rather, the Tribunal is limited to making the same final decision or any appropriate final decision that it could have made when the proceeding was originally decided (my emphasis).5 ‘Decision’ means an order made or direction given by the Tribunal.6 ‘Final decision’ means the Tribunal’s decision that finally decides the matters the subject of the proceeding.7 [27] In the current proceeding the application was decided by agreement and consent at a direction hearing of the tribunal on 6 December 2018. It was not decided on the merits and the final decision that was made at the directions hearing was a consent order. Therefore based on s 134(2) of the QCAT Act the Tribunal may only make the same decision it made when the proceeding was originally decided or any other appropriate final decision it could have made acting under this Act or an enabling Act when the proceeding was originally decided. Identification [28] As outlined above, on the material available to the parties at the time of the consent orders being agreed to, the trees the subject of the dispute were readily identifiable. However, to aid the ease of compliance and implementation and for the sake of absolute clarity it is desirable to describe the trees in the terms used in the arborist’s report. This is not introducing new untested evidence into the proceedings, rather simply a method of moving the matter forward towards achieving the resolution the parties agreed to on 6 December 2018; implementing the orders. I am satisfied that the arborist’s report, ordered by Senior Member Brown, can properly be regarded in these proceedings for this purpose. First Issue: Height as Compliant with Standards [29] The next issue is that there seems to be some difficulty in guaranteeing that some of the trees the subject of the orders can trimmed to exactly five metres. 3 [2010] QCAT 326, [22]. 4 [2020] QCAT 119 [15][16]. 5 See Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 134(1). 6 Ibid, Schedule 3 (definition of ‘decision’). 7 Ibid, Schedule 3 (definition of ‘final decision’). -- 6 of 11 -- 2 [30] This does not appear to be an insurmountable problem and may well be solved by an order that the trees be trimmed to five metres or the height that is closest to five metres and still in compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. Such an order is either in substance the same as the original order or is one which could have been made at that time; thus, it is within the jurisdiction for renewal. This deals with issue one of the applicants’ concerns relating to compliance with the original consent orders. Second Issue: Potential Conflict between Orders [31] The parties’ second issue with compliance with the orders is the potential conflict between Order 1 for pruning (described as trimming and maintenance) to five metres and compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees referred to in Consent Order 3. [32] The two issues raised do not obscure the essence of what parties agreed to on 6 December 2018. The parties agreed to pruning of the trees described in the dispute and although this pruning was given a specific height of five metres, they also agreed to this being done to the relevant Australian Standard. It follows that if the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees means that five metres cannot be guaranteed (for a particular tree or species) then a change of wording of the consent order to an approximation thereof that complies with the Standard does not in essence change what the parties have consented to. The kind of clarification outlined above would seem to answer any such difficulty. Costs of Implementation [33] It is also noted that in the consent order of 6 December 2018 the parties agreed that the applicants would be liable for the costs in this matter. This is not unusual in a tree dispute and particularly this may be so where one party – here, the applicants - are gaining a benefit under the relevant agreement that they have no pre-existing right to at common law. I am not, of course, bound by such examples; what is important here is this is what the parties themselves agreed to on 6 December 2018. Revisiting the Costs Issue? [34] It seems from the submissions that post the arborist’s report and the passage of time that the applicants in this matter are now seeking from the Tribunal a different payment arrangement to what they themselves agreed to. They submit that the respondents should pay the entire costs including the ongoing management of the trees and bushes to the heights indicated in the arborist’s report. They also requested that the work be carried out in 30 days and this was not a timeline that was either in the original consent order or in the arborist’s recommendations. There’s also some irrelevant material about where the respondents had located their house on a five-acre property. These matters do not, with respect, seem to fall within the renewal procedure as outlined. [35] In essence those submissions are not asking for a renewal in its true sense but rather that the Tribunal revisit the issues and make a completely different decision to the one that they agreed to and by consent was ordered by the Tribunal on 6 December 2018; as outlined above, this is not the nature of the limited jurisdiction of renewal. -- 7 of 11 -- 2 [36] The Tribunal understands the parties do not dispute the terms of the Consent Orders to which they agreed, they only allege that there is difficulty with its interpretation and implementation. Again, the Consent Order is clear on its face. The parties agreed to its wording. Clearly some latent conflict or tension between Consent Order 1 and Consent Order 3 has declared itself but may be addressed as outlined above. [37] As previously stated, I have found that there is no real difficulty in identifying the trees the subject of the dispute. On a plain reading of the application in NDR 172-18 the reference to weeping Lilli Pillies and waterhousia is wide enough to cover two types of trees that are subject to the arborist’s recommendation, arising as it does from his site inspection. [38] Thus, what the applicants in this aspect of the renewal application appear to be requesting is for the Tribunal to make a completely different decision to the one that they themselves consented to. If the Tribunal is to grant a renewal, the legislation and case law in this area clearly indicates that it is limited to issues relating to interpretation or the ability for an order to be complied with. It is not a wholesale changing of a consent order. [39] The arborist’s report that the applicants now seek to rely upon as a basis for apparently changing their agreement and enabling the removal of trees as opposed to pruning was not in existence at the time of that directions hearing. Therefore, a decision based on it was not one that could be made by the Tribunal on 6 December 2018. [40] The only ‘final decision’ that could have been made at the Directions Hearing attended by both parties is by agreement: Section 134 of the QCAT Act only enables a different order to be made if it could have been made when the matter was originally decided. As the order made was a consent order and there has been no hearing of the evidence, no other order could have been made at the compulsory conference than the one agreed to by both parties at the time.8 [41] The Tribunal therefore cannot set aside the original Consent Orders or make any final decision without the parties’ agreement. To make the orders sought – in this regard - by the applicants in this case would be to attempt to exercise a power that does not exist under s 134 of the QCAT Act. If the only outcome would be a completely different order then I would need to dismiss the application for renewal; however as set out above, an appropriate accommodation can be reached for the other aspects requiring only clarification for implementation. [42] This will hopefully conclude the Tribunal’s involvement in the matter and the parties’ dispute. Conclusion [43] Therefore, as previously mentioned I find that the trees in the dispute are clearly identified as Lilli Pillies and Waterhousia. Mr Inman’s identification of the trees recommends that three of the syzygium trees be reduced in height and he also mentions that ten waterhousia florabundia trees be removed over a five-year period. As outlined above this is not an outcome that can be achieved via a renewal. As this matter has 8 Bielby v Beilby & McGrath [2010] QCAT 649, [15]. -- 8 of 11 -- 2 already been concluded by a final decision no new application can be brought at this stage under the guise of a renewal. [44] For simplicity of understanding I refer to Mr Inman’s report and find that the relevant trees as discussed in the original application can be identified by the following numbers in his report: 3, 4,5,6, 8, 9, 10, 11, 13, 14, 15,17, 18 and 20. [45] For the reasons mentioned I cannot act outside the powers granted to me by legislation. It is therefore not practical or in fact legally possible for me to make orders on a renewal such as the orders requested by the applicants in this matter for such things as revisiting the issue of costs; the Tribunal must seek to grant a solution that is both lawful and fits within the parties’ original agreement. [46] As previously stated, this application for renewal travels with (i.e. involves the same issues as, for the same property) another application, RWL001-19, involving Rowan Carr and Felicity Carr. As these two cases are aligned, I will order that the costs of the trimming and maintaining of the trees be by way of a common order for both renewal applications. Each applicant will be liable for 50% of the total costs of these orders. [47] There is no need to change or renew Consent Order 2 of 6 December 2018 as it indicates that Mr and Ms McKinlay will need to allow the arborist reasonable access to their property to perform the works upon the applicants giving them 14 days written notice. It is now recorded as Order number 3 of my orders. [48] Consent Order 3 from the original Consent Orders of 6 December 2018 is in place to make sure all this work is carried out safely. The parties have agreed that all works are to comply with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. It is now reflected as Order number 4 of these orders. [49] To harmonise the relationship between what was agreed to in Consent Order 1 and what was agreed to in Consent Order 3 of the 6 December 2018 I have renewed Consent Order 1 to include that the trees will be trimmed and maintained to a maximum height of five metres or to the height closest to five metres that complies with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees. It is now Order number 2 of the current orders. [50] What underpins the original consent orders is the parties’ agreement that the trees be trimmed and maintained. If this cannot be completed on one occasion, I have covered this contingency by including a subsection in order 2 for the selected arborist to indicate the number of occasions that this trimming and maintenance will be required up to a period of 12 months from the date of this decision. This is merely making explicit the parties’ agreement that the trees be trimmed and maintained and that this be done to the Australian Standards. [51] As mentioned, this is not changing the essence of the agreement which was that the trees be trimmed and maintained and that this be paid for by the applicants and that the work be carried out to the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. The solution to achieve both aims is to modify the wording to achieve what is predominately the same outcome. [52] The consent orders show that what they agreed was that the trees be trimmed to a height of five metres and that this trimming and maintenance was to meet the -- 9 of 11 -- 2 Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. It would be nonsense to interpret the orders such that trees would have to be trimmed to exactly five metres without any regard to the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. This Standard is in in place to provide safety for all in the pruning, trimming and maintenance of these trees. Safety should never be sacrificed in order to strictly comply with an arbitrary number. [53] This is the agreement that underlies the Consent Orders made at the directions hearing on 6 December 2018. [54] It is abundantly apparent that this dispute has already taken an enormous toll timewise, financially and emotionally on all parties. As is often the case in disputes of this nature people become extremely upset and adopt defensive positions and seek to prosecute what they perceived to be other wrongs or harms that have been done to them. A tree dispute at QCAT is not a vehicle for such collateral goals. The Tribunal cannot consider these irrelevancies but does recognise the personal impact of these disputes on individual parties. It is to this end that I have attempted to uncover what the parties agreed to and attempted to assist them via the way of renewal to carry out their original consent agreement. To do otherwise or to make the orders requested would amount to a refusal of the application for renewal and would essentially leave the parties without a resolution in this dispute. [55] The parties should reflect upon the difficulties of their litigation and recognise that they are to be congratulated for their efforts in cooperation at the directions hearing. They reached an agreement that resulted in consent orders and that of itself is a commendable feat. [56] Sections 133 and 134 of the QCAT Act exist to honour and respect decisions that have been made. They exist only to aid in implementation of orders in the real world and only where there is an issue with compliance or any conflict between any of the orders. A renewal is not a vehicle for a wholesale merits hearing without any evidence being supplied by the parties other than their own allegations. [57] It is in this spirit of respecting and honouring the consent orders that have already been made the parties should remember that they were the orders that they did consent to and that this renewal is to enable them to comply with the agreement that they themselves made. [58] This means they have been in control of the process; they have reached the agreement themselves and therefore they are best placed to move forward with the implementation of the original consent orders with the amendments made on the basis of a renewal order. This renewal is to allow the circumstances of compliance and implementation to be clarified for all parties. [59] Thus the application for renewal is granted. The orders will be as follows: 1. The application for renewal is granted. 2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Robin Barnes and Avril Fallat; and such -- 10 of 11 -- 2 arborist to have the minimum qualifications of Australian Qualifications Framework Level 3: (a) to trim and maintain the trees subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3,4,5,6,8,9,10,11,13,14,15,17,18 and 20) to a maximum height of five (5) metres or to the height numerically closest to five (5) metres that complies with the requirements of Australian standard 4373 – 2007 Pruning of Amenity Trees; (b) All works will be carried out at the cost of Robin Barnes and Avril Fallat paying 50% of total cost and the applicants in RWL 001-19, Rowan Carr and Felicity Carr, the other 50% of the total cost; (c) The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and (d) Any further trimming and maintenance required to achieve the a maximum tree height of 5 metres or the height numerically closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date. 3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Robin Barnes and Avril Fallat giving them 14 days written notice. 4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees. -- 11 of 11 --