Body Corporate for No 96 Martyn Street v Merjan [2018] QCAT 78

CITATION: Body Corporate for No 96 Martyn Street v Merjan & Anor [2018] QCAT 78 PARTIES: The Body Corporate for No 96 Martyn Street CTS 18918 (Applicant) v Morgan Merjan and Susan Boisen (Respondents) APPLICATION NUMBER: NDR188-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 15 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a tree dispute is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether evidence that trees have caused serious damage to land or property on land – whether evidence that trees are likely to cause a substantial, ongoing and unreasonable interference with the use and enjoyment of land Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 49 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The Body Corporate for No 96 Martyn Street (the Body Corporate), as its name suggests, owns land at 96 Martyn Street, Parramatta Park. -- 1 of 7 -- 2 [2] Mr Merjan and Ms Boisen (the Respondents) are the owners of neighbouring property at 92 Martyn Street, Parramatta Park. [3] The Body Corporate is seeking to have trees on the Respondents’ property removed and/or pruned. The application [4] The Body Corporate filed an application for a tree dispute on 22 November 2016. The application indicates that the dispute is about overhanging branches extending more than 50 cm from the boundary and over 2.5 m above the ground. [5] The Body Corporate claims that the tree has caused serious damage to its land or property on its land, in that “[t]he root/trunk of a palm and another tree are pushing the boundary fence towards Unit 2. Currently at a 45 degree angle.” [6] The Body Corporate also claims that the trees are likely to cause substantial, ongoing and unreasonable interference with its use and enjoyment of its land within the next 12 months. It states that “[t]he overhanging branches are quickly growing over the roofs of Unit 2 carport and Unit 3 leaving a lot of leaf litter in gutters which are 3+ metres high and cutting out light”. The owner of unit 3 previously arranged for large limbs to be removed from the tree at her own cost. [7] The Body Corporate also claims that the interference is an obstruction of sunlight or a view, but provided no details of this. [8] The Body Corporate did not claim that the tree has caused serious injury to any person, or was likely to do so within the next 12 months. [9] The Body Corporate sought: a) an order that the Respondents remove or prune the branches of tree; and b) an order that the Respondents remove or prune the roots of the tree. [10] Attached to the application was a letter from the Body Corporate to the Respondents dated 29 August 2016, seeking a meeting on the issue. A notice for removal of particular overhanging branches dated 3 October 2013 was also attached. [11] I note that an affidavit of service was filed, indicating that the Respondents were served on 22 November 2016 by leaving the application with a person -- 2 of 7 -- 3 who was apparently an adult and apparently residing at their last known residential address.1 The directions [12] The most recent directions made by the Tribunal on 20 July 2017 were as follows: 1. The Body Corporate for No 96 Martyn Street CTS 18918 will file two (2) copies in the Tribunal and give to Morgan Merjan and Susan Boisen one (1) copy of: a. The Body Corporate for No 96 Martyn Street CTS 18918’s statement of evidence, which must be indexed and page numbered; b. any documents referred to in a statement of evidence, including quotes and expert reports, which must be identified, explained and attached to the appropriate witness statement by: 4:00pm on 4 August 2017. 2. Morgan Merjan and Susan Boisen will file in the Tribunal two (2) copies and give to The Body Corporate for No 96 Martyn Street CTS 18918 one (1) copy of: a. Morgan Merjan and Susan Boisen’s statement of evidence, which must be indexed and page numbered; b. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by: 4:00pm on 25 August 2017. 3. If Morgan Merjan and Susan Boisen fail to comply with paragraph 2 of these directions, then the matter will proceed to final hearing. 4. The application for a tree dispute will be determined on the papers, without an oral hearing, not before 25 August 2017. [13] The Body Corporate lodged evidence on 2 August 2017, which I discuss below. [14] The Respondents have not lodged any evidence, and I note they also previously failed to attend a compulsory conference on 20 March 2017. In accordance with paragraph 4 of the directions set out above, the application will be determined on the papers. 1 See Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39(1)(f) and r 39(2), and QCAT Practice Direction No 8 of 2009 – Personal Service of Documents, [13]. -- 3 of 7 -- 4 The evidence [15] The only evidence filed by the Body Corporate was a “Tree Condition Report” dated 23 June 2013, prepared by John Madderom of Arbor Assessment Advice and Landscape Solutions. [16] The report is brief, and I reproduce the relevant portions in full: Synopsis: This is a tree inspection reporting on the group of trees along the fence line of 96 Martyn Street. General: This group of trees is made up of the following species, Ficus Benjamina, Alexander Palms, Glochidion and spindaceae. Location: These trees are located on the southern boundary fence lune of 96 Martyn Street, Parramatta Park. … Analysis: These trees have likely established via natural processes i.e. wind, bird droppings. Apart from the Ficus these trees have developed on the fence line causing damage to the fence and adjacent infrastructure i.e. pavers etc. The root structure of the trees will be impacting on underground services on either side of the trees. The Ficus at the rear is a healthy tree in a very strong growth (expansion) stage. The roots of this tree will exceed the drip line by x 2, this tree is typical for the species. The two natives affecting the fence are hard pruned and not typical in form for their species. One has a monster deliciosa vine with an Alexander palm intertwined. Recommendation/Conclusion: These two trees on the fence line should be removed to allow the fence to retain a correct line. The Ficus at the rear should be pruned and maintained to, with a 30% reduction of its present form, with root barrier installed along the fence line, being approximately 30m. [17] The report also attaches a number of photographs, which I discuss further below. -- 4 of 7 -- 5 Tribunal’s powers [18] The orders which the Tribunal can made are set out in s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act), which relevantly provides: (2) QCAT 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. (3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only 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 (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. Serious damage [19] The Body Corporate has claimed that the trees have caused serious damage to its land or property on its land for the purposes of s 66(2)(b)(i) of the Act. [20] The particulars of this claim are that the boundary fence has been pushed over at a 45-degree angle. [21] As noted above, the only evidence I have been provided with in support of the Body Corporate’s claims is the tree condition report. This report notes damage to the fence and pavers, but does not set out the nature of this damage. [22] I have reviewed the photographs attached to the tree condition report. I am unable to identify any photographs of a fence pushed over at a 45-degree angle. Some of the photographs show a small number of loose fence palings, which I consider to be minor damage. -- 5 of 7 -- 6 [23] The tree condition report also attaches a photograph of pavers. I am unable from this photograph to identify any obvious damage to the pavers caused by tree roots. [24] It may be the case that the fence is at a 45-degree angle, and it may be that the pavers have been damaged by tree roots, but there is insufficient evidence before me to enable me to be satisfied of this. The damage which I have been able to satisfy myself of, namely a small number of loose fence palings, does not in my view amount to serious damage. [25] In these circumstances, I am not satisfied that I have the power to make orders under s 66(2)(b)(i) of the Act. Substantial, ongoing and unreasonable interference with the use and enjoyment [26] The Body Corporate has claimed that the trees are likely to cause substantial, ongoing and unreasonable interference with its use and enjoyment of its land within the next 12 months for the purposes of s 66(2)(b)(ii) of the Act. [27] The particulars of this claim are that the overhanging branches are leaving a lot of leaf litter in gutters and cutting out light. [28] I have not been provided with any evidence in relation to how far the tree branches overhang the boundary, beyond the claims in the application that the overhang is more than 50cm and the branches are over 2.5m above the ground. Nor have I been provided with any evidence which would enable me to ascertain the quantity of leaves being deposited in the gutters or the frequency with which they are required to be cleaned. [29] I have also not been provided with any evidence dealing with the obstruction of sunlight, and I note that this claim was not particularised in the application. There is therefore no evidence which would enable me to be satisfied that the obstruction is “severe” for the purposes of s 66(3)(b)(i). [30] In these circumstances, I am not satisfied that I have the powers to make orders under s 66(2)(b)(ii) of the Act. Conclusion [31] The appropriate order is that the application for a tree dispute is dismissed. [32] The Body Corporate may commence a further application for a tree dispute, however they will require the leave of the President or the Deputy President to do so.2 Accordingly, the dismissal of its application does not deprive the Body Corporate of the opportunity to pursue an application for a tree dispute 2 QCAT Act, s 49. -- 6 of 7 -- 7 if and when it is in a position to provide sufficient evidence to support its claims. -- 7 of 7 --