Borchi v Kettle [2017] QCAT 200

CITATION: Borchi v Kettle [2017] QCAT 200 PARTIES: John Borchi and Tracey Borchi (Applicant) v Sharyn Kettle (Respondent) APPLICATION NUMBER: NDR145-15 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 5 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Sharon Kettle must install a root barrier along the boundary between 6 Possum Court, Capalaba and 46 Howlett Road, Capalaba (‘the root barrier’); 2. The root barrier must be: i) adequate to contain the roots from the trees identified as tree #1, tree #2 and tree #5 in the report of Andrew Stovell dated 26 June 2016 (‘the trees) within 46 Howlett Road, Capalaba and to prevent the spread of the roots of the trees to 6 Possum Court, Capalaba; ii) installed under the supervision of an appropriately qualified arborist of at least Australian Qualifications Framework Level 5. 3. Sharyn Kettle must pay for the costs of the installation of the root barrier; 4. John Borchi and Tracey Borchi must provide such reasonable access to their property as may be required by Sharyn Kettle, and any contractors -- 1 of 19 -- 2 engaged by her, to undertake the installation of the root barrier; 5. The root barrier must be installed within three (3) months of the date of this order. 6. If Sharyn Kettle fails to comply with orders 1, 2, 3 and 5: i) John Borchi and Tracey Borchi may install the root barrier; ii) John Borchi and Tracey Borchi and/or their servants and/or their agents are authorised to enter upon 46 Howlett Road, Capalaba in order to undertake the installation of the root barrier; iii) John Borchi and Tracey Borchi may recover from Sharyn Kettle the cost of the installation of the root barrier. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether evidence that land is affected by a tree – whether leaf litter and tree debris a substantial, ongoing and unreasonable interference with the use and enjoyment of land – whether trees are likely to cause serious damage to land or property on land – where tree roots likely to cause structural damage to property – considerations for making an order about a tree – where installation of root barrier ordered to prevent structural damage Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 41(1), s 42(1), s 42(3), s 42(3)(a), s 42(4), s 42(5), s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 52(2)(b), s 66(2)(a), s 66(2)(b)(i), s 66(3)(b)(ii), s 73(1), s 74(2) Dictionary Redland Shire (Protection of Vegetation) Local Law No. 6 s 4(1), s 26(1) Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] -- 2 of 19 -- 3 WASC 463 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Thomsen v White [2012] QCAT 381 Vecchio v Papavasiliou [2015] QCAT 70 APPEARANCES: 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] Mr and Mrs Borchi and Ms Kettle are neighbours. On Ms Kettle’s land there are eleven (11) trees. Mr and Mrs Borchi say that the trees are likely to cause serious injury to a person on, or serious damage to, their land within the next 12 months. Mr and Mrs Borchi also say that the trees substantially and unreasonably interfere with the use and enjoyment of their land. Mr and Mrs Borchi have filed an application for a tree dispute. They seek an order for the pruning of tree branches. [2] The issues for determination are: 1. Whether the trees on Ms Kettle’s land affect the Borchis’ land; and 2. If the Borchis’ land is affected by one or more of the trees, what is the appropriate order? The Statutory Framework - the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) [3] The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,1 to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the land,2 or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the land.3 1 NDA s 66(2)(a). 2 Ibid, s 66(2)(b)(i). 3 Ibid, s 66(3)(b)(ii). -- 3 of 19 -- 4 [4] A neighbour includes the registered owner of the freehold land affected by a tree.4 A tree keeper includes the registered owner of the freehold land where the tree is situated.5 [5] The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if the land is said to be affected by a tree.6 Land is affected by a tree if the branches from the tree overhang the land,7 or the tree has caused, is causing, or is likely within the next 12 months to cause, serious injury to a person on the land,8 serious damage to the land or any property on the land,9 or substantial, ongoing or unreasonable interference with the use and enjoyment of the land.10 The affected land must adjoin the land on which the tree is situated11 or would adjoin the land on which the tree is situated if it were not separated by a road.12 [6] Trees to which the NDA applies are identified.13 The NDA also identifies trees to which the Act does not apply.14 The NDA does not apply to trees situated on rural land.15 Rural land means rural land under the Land Valuation Act 2010 (‘LVA’).16 [7] When deciding an application for an order about a tree the Tribunal must have regard to the matters outlined in s 66 of the NDA.17 Is Mr and Mrs Borchi’s land affected by a tree? [8] I am satisfied that Mr and Mrs Borchi are neighbours, that Ms Kettle is a tree keeper and that the trees complained of by Mr and Mrs Borchi are trees within the meaning of s 45 of the NDA. I am also satisfied that Mr and Mrs Borchis’ land and Ms Kettle’s land adjoin. [9] The Tribunal appointed Mr Andrew Stovell, who is an arborist, to assess the trees complained of by Mr and Mrs Borchi, and prepare a report (‘the tree report’). [10] The tree report identifies five (5) trees as being relevant to the dispute between the parties (collectively referred to as “the trees”): a) Eucalyptus siderophloia (tree #1); 4 Ibid, s 49(1)(a)(i). 5 Ibid, s 49(1)(a). 6 NDA s 61. 7 Ibid, s 46(a)(i). 8 Ibid, s 46(a)(i)(A). 9 Ibid, s 46(a)(i)(B). 10 Ibid, s 46(a)(i)(C). 11 Ibid, 46(b)(i). 12 Ibid, s 46(b)(ii). 13 Ibid, s 42(1). 14 Ibid, s 42(3), s 42(4), s 42(5). 15 Ibid, s 42(3)(a). 16 Ibid, Schedule, Dictionary. 17 Ibid, s 73. -- 4 of 19 -- 5 b) Eucalyptus microcorys (tree #2); c) Pinus elliotti (tree #3); d) Pinus elliotti (tree #4); and e) Eucalyptus microcorys (tree #5). [11] It is useful to summarise what Mr and Mrs Borchi say about the trees and what Mr Stovell says in the tree report. Mr and Mrs Borchi The tree report Eucalyptus Ironbark. Visible stress fractures from the base to the canopy. Tree leans at an angle of 30 degrees toward the Borchis’ property. Tree branches extend 7 metres into the Borchis’ property. Dropping large branches in the Borchis’ property with a diameter of 8 to 10 centimetres and exceeding 1 metre in length Tree #1. 50% to 60% of the asymmetrical crown overhangs the Borchis’ land by up to 8 metres. General health of the tree good. Trunk noted to be in good condition. No visible weaknesses in limb unions. No visible historical limb drop. Recommended removal of large deadwood in upper crown. Recommended inspection of upper crown to identify issues not visible from ground assessment. Eucalyptus bloodwood. Branches overhang the Borchis’ property by up to 4 metres. Leaf litter and tree debris dropped onto the roof and into the gutters of the Borchis’ dwelling. The branches of 2 to 3 centimetres in diameter damage roof tiles. Tree #2. Branches overhang the Borchis’ property by up to 4 metres. Trunk in good condition. No visible weaknesses in limb unions. No visible historical limb drop. General health of the tree is good. Evidence of past limb removal to reduce overhang. Recommended removal of large deadwood in upper crown. Recommended inspection of upper crown to identify issues not visible from ground assessment. Eucalyptus bloodwood. Situated 15 to 20 metres from the Borchis’ dwelling. Large branch extends over the Borchis’ dwelling by 5 metres. Concerns that the branch may break off and fall on the dwelling. Tree #5. General health of the tree is good and its parts are good. No further inspections required. Fig tree. Approximately 10 metres high and situated within 3 metres of the dwelling on the Borchis’ land. Concerns about the potentially invasive root system. Not referred to in the tree report. Six pine trees. Situated within 3 to 10 metres of the Borchis’ dwelling. Trees #3 and #4. Only 2 pine trees referred to in the tree report. Both -- 5 of 19 -- 6 a. 2 trees situated within 3 metres of the Borchis’ dwelling. Trees drop pine needles over clothes line, onto roof, into gutters and into the pool; b. 1 tree within 4 metres of the Borchis’ dwelling and described as “very overgrown”. Concern that tree may fail and fall onto the Borchis’ land; c. 3 trees within 10 metres of the Borchis’ dwelling. All appear to be unhealthy and one may be dead. Concerns about serious damage to the Borchis’ land and property on the land should the trees fall. trees noted as having no branches overhanging the Borchis’ land. No requirement for any work to be done in relation to the trees. Umbrella tree. Situated within 3 metres of the Borchis’ dwelling. Concerns about the potentially invasive root system. Not referred to in the tree report. [12] The tree report attaches a number of photographs of the trees including photographs of the tree branches overhanging Mr and Mrs Borchis’ land. [13] The Borchis rely upon a report by an engineer, Mr Stephane Rebibou.18 Mr Rebibou’s report (the engineer’s report) focuses upon the dividing fence along the rear boundary between the Borchis’ land and Ms Kettle’s land. Mr Rebibou inspected the fence, finding that: 1. The fence was leaning severely in sections with trees and branches visibly leaning on the fence from the neighbouring property; 2. Significant sections of the fence were unstable when pushed or pulled on; 3. It is likely that the main fence posts are rotten around the bases and split in section; 4. The fence has failed and could collapse, causing damage or injury; 5. The fence requires replacing posts and the reinstatement of salvageable fence elements; 18 Report dated 22.01.16. -- 6 of 19 -- 7 6. Leaves and organic matters deposited onto the roof and into gutters of the dwelling on the Borchis’ land from overhanging tree branches will result in premature damage to roofing elements and blocked downpipes/gutters; 7. A large tree root was visible from the underside of the fence. The presence of large trees will cause a significant differential reactive clay movement over time or direct damage to plumbing services resulting in footing system movement to the rear of the dwelling and may eventually require underpinning; 8. It is likely that the numerous large trees close to the rear wall of the dwelling on the Borchis’ land will directly or indirectly (via plumbing leaks/damage) result in footing system damage and damage to the building over time; 9. A root barrier could be installed now to mitigate against the risk of damage to structures on the Borchis’ land; 10. Other factors contributing to the long term distress of the timber fence include: i) Actual depth of the post concrete foundation piers; ii) Condition of surface drainage behind the fence; and iii) Deterioration of the fence over time.19 [14] I pause here to note that there has been no conclave of the experts, Mr Stovell and Mr Rebibou. All experts engaged for a hearing must attend a conclave.20 There is no doubt that there are aspects of the expert evidence that might have benefited from a conclave. I note that Ms Kettle has been largely non compliant with directions made by the Tribunal relating to the filing and service of evidence. Ms Kettle was non compliant with directions made by the Tribunal in relation to providing access to her property for the inspection by Mr Stovell. A requirement for a conclave to be held and attended by Mr Stovell and Mr Rebibou would, in my view, have placed an unnecessarily onerous financial burden on Mr and Mrs Borchi. They would have been responsible for the costs of Mr Rebibou’s attendance at the conclave and, in light of Ms Kettle’s non compliance with Tribunal directions, it is likely that they would also have been required to meet the cost of Mr Stovell’s attendance at the conclave. Accordingly, I am satisfied that the application of Practice Direction No 4 of 2009 should be dispensed with insofar as it relates to the requirement for the convening of an experts’ conclave. [15] Section 46(a) of the NDA provides that land is affected by a tree at a particular time if any of the circumstances at s 46(a)(i) or (ii) apply. One of 19 Report of Stephane Rebibou dated 26.06.2017 at 2.0(ii). 20 QCAT Practice Direction No 4 of 2009, s 5. -- 7 of 19 -- 8 those circumstances is branches from a tree overhanging the neighbour’s land. I am satisfied that branches from trees #1, #2 and #5 overhang Mr and Mrs Borchis’ land. I have found that the Borchis’ land adjoins Ms Kettle’s land. I am satisfied that, for the purposes of s 46 of the NDA, Mr and Mrs Borchis’ land is affected by trees #1, #2 and #5.21 [16] The tree report states that trees #3 and #4 do not overhang Mr and Mrs Borchis’ land and the trees do not pose any risk to their land. If the branches do not overhang the Borchis’ property, the Tribunal can only make an order about the trees if satisfied that the trees have caused, are causing or are likely within the next 12 months to cause serious injury to a person on the land,22 serious damage to the land or any property on the land,23 or a substantial, ongoing, and unreasonable interference with the use and enjoyment of the land.24 [17] Turning firstly to the independent evidence, Mr Stovell does not find that trees #3 and #4 pose any risk to the Borchis’ land. Mr Rebibou, the engineer, does not identify with any specificity the trees said to be the cause of damage or potential damage to the Borchis’ land or property on their land. [18] There is included in the Borchis’ application for a tree dispute a diagram identifying the trees, the subject of the application, and where they are situated on Mrs Kettle’s land. Tree #1 is located furthest from the Borchis’ house and adjacent to the dividing fence. A eucalypt, which might be tree #2 or #3 is situated close to the fence line and toward the Borchis’ dwelling. The remaining eucalypt is situated behind six pine trees located on Ms Kettle’s land. [19] Mr Rebibou makes no reference to the species of the various trees identified in his report. The report refers to “large trees…with large portions of the tree canopies extruding well beyond the fence and boundary”.25 The report notes that “(n)umerous leaves and organic matter from the trees above were visible in the roof gutters and valleys directly under and adjacent to the tree canopies”.26 This suggests reference to trees #1, #2 and #5 rather than trees #3 and #4 given the large and spreading canopies of the eucalypts. Support for this conclusion can be found in the photograph of trees #3 and #4 which does not appear to show any branches from those trees overhanging the Borchis’ property. [20] Mr Rebibou refers to a large tree root toward the rear of the Borchis’ dwelling. There is no evidence of the species of tree, or which tree on Ms Kettle’s land, the root emanates from. The engineer’s report refers to the “large trees” which are “close to the building” as being likely to cause 21 NDA s 46(a)(i). 22 Ibid, s 46(a)(ii)(A). 23 Ibid, s 46(a)(ii)(B). 24 Ibid, s 46(a)(ii)(C). 25 Report of Stephane Rebibou dated 26.06.2017 at 2.0(iii). 26 Ibid, at 2.0(iv). -- 8 of 19 -- 9 “significant differential reactive clay movement over time or even result in direct damage to plumbing services”.27 Again, the report fails to identify with any precision what the “large trees” being referred to are. [21] I am not satisfied, on the balance of probabilities, that the engineer’s report discloses any risk of damage or injury caused by trees #3 and #4. [22] I must also consider the evidence of Mr and Mrs Borchi. Mr and Mrs Borchi filed a statement of evidence in the Tribunal on 28 January 2016, prior to the inspection by Mr Stovell. In their statement Mr and Mrs Borchi identify 11 relevant trees28: 1. Eucalyptus ironbark (tree 1 in the tree report); 2. Eucalyptus bloodwood; 3. Eucalyptus bloodwood; 4. Fig tree (not identified in the tree report); 5. Umbrella tree (not identified in the tree report); and 6. 6 x pine trees (trees 3 and 4 in the tree report; further pine trees are not identified in the tree report). [23] The eucalyptus bloodwoods (b) and (c) appear to be tree #2 and tree #5 in the tree report. The fig tree and the umbrella tree are not referred to in the tree report. [24] The Borchis refer to six (6) pine trees. The tree report refers to only two (2) pine trees. The tree report refers to the possibility of the failure of these two trees, trees #3 and #4, “as the Pine tree in close proximity have (sic) done…”.29 [25] The Borchis filed a further statement of evidence in the Tribunal on 19 December 2016. Unfortunately they do not clarify whether all of the six pine trees remain in situ, whether some have been removed or are no longer of concern and whether only two pine trees remain, identified as tree #3 and #4 in the tree report. [26] Based on the tree report and on the somewhat confusing evidence I find that only two pine trees remain, being trees #3 and #4. If I am wrong about this, and some or all of the other six pine trees remain, I find that trees #3 and #4 are the only pine trees with the potential to impact upon the Borchis’ land and which fall for consideration in this application. 27 Report of Stephane Rebibou dated 26.06.2017 at 2.0(iii) at 2.0(v). 28 Statement of John Borchi and Tracey Borchi filed 28.01.16. 29 Andrew Stovell report at page 7. -- 9 of 19 -- 10 [27] Mr and Mrs Borchi say that all of the pine trees appear unhealthy and two appear to be dead. The tree report makes no mention of unhealthy or dead trees. I find that trees #3 or #4 are neither unhealthy nor dead. The Borchis say that four of the pine trees may fail and fall onto their land. There is no evidence to support a finding that trees #3 or #4 may fail and fall onto the Borchis’ land. [28] The Borchis say that two of the pine trees are located very close to the boundary fence and that the overhanging branches drop pine needles onto the roof of their dwelling and into the gutters of the dwelling. They say that the excessive amount of leaf litter deposited into their pool, including pine needles, has resulted in their incurring $2,000.00 in pool maintenance costs. The Borchis also say that they have had to engage contractors to clean out their gutters every 2 to 3 months and that they have been required to clear unreasonably large amounts of leaf litter, gum nuts and tree debris from their yard. [29] What is not clear from the Borchis’ evidence is whether the two pine trees with branches overhanging their land are trees #3 and #4. Mr Stovell says that the branches of trees #3 and #4 do not overhang the Borchis’ land. Mr Stovell attaches a number of photographs including a photograph of trees #3 and #4. It is not readily apparent from the photograph that any branches of trees #3 and #4 overhang the Borchis’ property. [30] There is a conflict between the evidence of Mr Stovell and the Borchis’ as to whether the branches of trees #3 and #4 overhang the Borchis’ land. I prefer the evidence of Mr Stovell that the branches of trees #3 and #4 do not overhang the Borchis’ land. Even if I am wrong about whether branches from trees #3 and #4 overhang the Borchis’ land (and thus affect their land), for reasons that follow, I am not satisfied that it is appropriate for an order to be made in relation to trees #3 and #4 pursuant to s 66(2) of the NDA. [31] The principal complaint by the Borchis in relation to trees #3 and #4 relates to leaf litter. The tree report makes no mention of leaf litter. The depositing of leaf litter by a tree or trees will not, without more, be sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of land.30 The presence of leaf litter is generally not a basis for a finding that a tree unreasonably interferes with the use of and enjoyment of a neighbour’s land in a substantial and ongoing way. Of course, every tree dispute must be considered and determined on its facts and there may be instances where the presence of leaf litter satisfies the requirements of s 66(2) of the NDA. [32] The Appeal Tribunal has held: The use of the conjunctive in s 66(2)(b)(ii) requires all three requirements to be present for interference to be established. The words “substantial”, 30 See Vecchio v Papavasiliou [2015] QCAT 70; Thomsen v White [2012] QCAT 381. -- 10 of 19 -- 11 “ongoing” and “unreasonable” are not defined in the NDA and therefore carry their ordinary meaning.31 Substantial means “of considerable importance, size, or worth”. Ongoing means “continuing; still in progress”. Unreasonable means “beyond the limits of acceptability or fairness”.32 Interference, in order to satisfy s 66(2)(b)(ii), must therefore be considerable and beyond the limits of acceptability.33 [33] What is complained of by the Borchis is the leaf litter to be expected from a pine tree. What the Borchis describe and complain of in terms of maintenance is, in my view, no more than the usual maintenance required of a home owner living in a residential environment with mature trees. [34] I am not satisfied that trees #3 and #4 have caused, are causing, or are likely within the next 12 months to cause serious injury to a person on the Borchis’ land, serious damage to the Borchis’ land or property on the land or a substantial, ongoing and unreasonable interference with the Borchis’ use and enjoyment their land. [35] I am not satisfied that the Borchis’ land is affected by trees #3 and #4. [36] Mr and Mrs Borchi refer to a fig tree and an umbrella tree located on Ms Kettle’s property. Neither tree is referred to in the tree report. There is no evidence that branches of either tree overhang Mr and Mrs Borchi’s land. Mr and Mrs Borchi say that the impact of the fig tree and umbrella tree is the potential for the ‘invasive root system’ to cause damage to plumbing, sewerage and structural footings.34 There is no evidence, other than the assertions by the Borchis, about the root systems of the fig tree or the umbrella tree. There is no evidence that the fig tree or umbrella tree have caused, are causing or are likely within the next 12 months to cause serious injury to a person or serious damage to Mr and Mrs Borchi’s land or property on their land. There is no evidence that the fig tree or umbrella tree interfere with the use and enjoyment by Mr and Mrs Borchi of their land. [37] I am not satisfied that Mr and Mrs Borchi’s land is affected by the fig tree or the umbrella tree. Is it appropriate for an order to be made in relation to trees #1, #2, and #5 pursuant to s 66 of the NDA? [38] An order about the trees can only be made if I am satisfied of the following: 31 Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463. 32 Oxford Dictionary. 33 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, 23 [81]. 34 Applicant’s submissions filed 28 January 2017, pages 4, 6. -- 11 of 19 -- 12 1. Mr and Mrs Borchis’ land is affected by the tree or trees;35 2. The process cannot be resolved using the process under Chapter 3, Part 4 of the NDA;36 3. Mr and Mrs Borchi have made a reasonable effort to resolve the dispute with Ms Kettle;37 4. Mr and Mrs Borchi have taken all relevant steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;38 5. The branches overhand Mr and Mrs Borchi’s land by at least 50 centimetres;39 6. Mr and Mrs Borchi have given Ms Kettle a copy of the application for a tree dispute;40 7. An order is appropriate: i) To prevent serious injury to any person; or ii) To remedy, restrain or prevent: (1) Serious damage to Mr and Mrs Borchis’ land or property on their land; or (2) Substantial, ongoing and unreasonable interference with the use and enjoyment of Mr and Mrs Borchis’ land.41 [39] I have found that Mr and Mrs Borchis’ land is affected by trees #1, #2 and #5. [40] The process under Chapter 3, Part 4 of the NDA applies where a branch is 2.5 metres or less above the ground and the branch extends over the neighbour’s land by at least 50 centimetres. The process does not apply to trees #1, #2 and #5 as the branches of the trees are more than 2.5 metres above the ground. [41] I am satisfied that Mr and Mrs Borchi have made a reasonable attempt to resolve the dispute with Ms Kettle. There is no evidence before me of any relevant local law, or local government scheme or administrative process relevant to the resolution of the issues in dispute. Finally, I am satisfied 35 NDA s 59(a). 36 Ibid, s 59(b). 37 NDA s 65(a). 38 Ibid, s 65(b). 39 Ibid, s 65(c)(i). 40 Ibid, s 65(d). 41 Ibid, s 66(2). -- 12 of 19 -- 13 that Ms Kettle has been given a copy of the application for a tree dispute by Mr and Mrs Borchi. [42] I accept the expert evidence of Mr Stovell in relation to the appearance and health of trees #1, #2 and #5. Mr Stovell finds trees #1 and #2 to be in good health with both trunks in good condition and the limbs having no visible weaknesses. The branches of tree #1 overhang the Borchis’ land by up to 8 metres and the branches of tree #2 overhang the Borchis’ land by 4 metres. Mr Stovell identifies trees #1 and #2 as each having a large amount of deadwood in the upper crown that should be removed. It is recommended by Mr Stovell that the upper crown be inspected further to ensure that no structural problems exist. The report is unclear about what these structural problems might be or what the impact might be upon the trees. Mr Stovell does not identify any specific impact of the trees on Mr and Mrs Borchis’ land. [43] Tree #5 is noted by Mr Stovell to be in good health and overhanging the Borchis’ land by 5 metres. The tree report contains no recommendations for work to be carried out on tree #5. Mr Stovell does not identify any impact that tree #5 has on Mr and Mrs Borchis’ land. [44] The engineer’s report refers to the existence of numerous large trees situated on Ms Kettle’s land. Mr Rebibou refers to the trees being visible in aerial photographs attached to his report which show the growth of the trees over the period from November 2009 to January 2016. The location of the tree canopies in the aerial photographs is consistent with the diagram of the location of trees #1, #2 and #5 attached to the Borchis’ application. I am satisfied that the ‘large trees’ identified and referred to by Mr Rebibou are trees #1, #2 and #5. [45] Mr Rebibou identifies a number of issues relating to the ‘large trees’ which impact upon the Borchis’ land: 1. The dividing fence between the Borchis’ property and Ms Kettle’s property was noted to be leaning severely with trees and branches visibly leaning on the fence; 2. Leaves and organic matter from the trees was visible in roof gutters and valleys and will result in premature damage to roofing elements as well as likely blocked downpipes and gutters; 3. The large trees will likely be the cause of significant differential reactive clay movement over time or result in direct damage to plumbing services. This would in turn result in footing system movement to the rear of the dwelling and may eventually require underpinning; 4. It is likely that the trees will, directly or indirectly, result in footing system movement and damage to the building over time. -- 13 of 19 -- 14 [46] I accept the evidence of Mr Rebibou in relation to the potential impact of trees #1, #2 and #5 upon the Borchis’ land and property on their land. I am satisfied that the ‘building’ referred to by Mr Rebibou is the Borchis’ dwelling. I am satisfied it is likely that, in time, the trees will cause damage to the Borchis’ land and property on their land in the manner described by Mr Rebibou. [47] In relation to the impact of the trees on the roof and rear of the Borchis’ land caused by the depositing of leaf litter, I am not satisfied that this impact is either serious damage for the purposes of s 66(2)(b)(i) of the NDA or a substantial, ongoing and unreasonable interference with the use and enjoyment of the Borchis’ land for the purposes of s 66(2)(b)(ii) of the NDA. An occupier is expected to maintain their property. This includes cleaning roofs, gutters, pools and yards on a regular basis. The failure to carry out such maintenance may lead to more significant issues as referred to in Mr Rebibou’s report and as alleged by the Borchis. Any such damage is however likely to be the result of the failure to maintain the property. [48] The Borchis say that the trees drop “small brittle branches” onto the roof of their dwelling which cause damage in the form of cracking to roof tiles. There is no evidence before the Tribunal of such damage. I am not satisfied that branches falling from the tree have cracked the roof tiles of the Borchis’ dwelling. The Borchis’ say that the gutters and roofs of their dwelling and garden sheds are covered with leaf debris and that the debris also fall into their pool. The Borchis are expected to maintain their property which includes cleaning leaf litter and debris from roofs, gutters, pools and yards. The use of such devices as gutter guards and pool covers serve to ameliorate the effects of leaf litter and tree debris. Whilst leaf litter and debris might, in some limited circumstances, constitute a substantial and unreasonable interference with the use and enjoyment of land, I am not satisfied that there is such an interference on the facts before me. [49] In relation to the dividing fence, Mr Rebibou attributes the present distressed condition of the fence to a number of factors including: 1. Trees/branches leaning on the fence; 2. Timber rot at the base of the fence posts caused by an accumulation of debris and organic matter; 3. The depth of the post concrete foundation piers; 4. The condition of surface drainage behind the fence; and 5. Deterioration of the fence over time including failed repairs. [50] There is no evidence before me as to which tree or trees, or branches from a particular tree or trees, are leaning on the fence. Relevantly, Mr Rebibou identifies four (4) significant factors which have caused or -- 14 of 19 -- 15 contributed to the present state of the fence. None of these factors are identified as being related to a tree or trees. I am not satisfied, on the balance of probabilities, that the present damaged state of the fence has been caused by trees #1, #2 and #5. [51] I am however satisfied that the impacts described by Mr Rebibou relating to the potential for structural damage to property on the Borchis’ land constitutes serious damage for the purposes of s 66(2)(b)(i) of the NDA. I am referring here to Mr Rebibou’s findings that the trees will be likely to cause damage to the footings of the dwelling on the Borchis’ land. I am satisfied that trees #1, #2 and #5 are likely to cause serious damage to the Borchis’ land or property on their land. What order should be made in relation to trees #1, #2 and #5? [52] What is the appropriate order to make in relation to the trees? I will deal with each of the matters the Tribunal must consider in deciding an application under s 66 of the NDA.42 Section 73(1)(a) [53] The trees are located in relatively close proximity to the boundary between the parties properties. As I have found, the trees are likely to affect the Borchis’ dwelling. Section 73(1)(b) [54] There is no evidence before me that any work on the trees would require any consent or authorisation under another Act. In her Response, Ms Kettle refers to all of the trees located on her land being the subject of a Vegetation Protection Order. Ms Kettle has not placed before the Tribunal any evidence of such an order. The trees are within Redland Shire. Redland Shire Council Local Law No. 6 relates to “Protection of Vegetation” (“the Local Law”). By s 4(1) of the Local Law, the Redland Shire may make a vegetation protection order. Vegetation, the subject of a vegetation protection order, is protected vegetation.43 By s 26(1) of the Local Law, a person must not damage protected vegetation. If the Tribunal is satisfied an application is made under the NDA because of a genuine dispute, an order may be made for work to be carried out on a tree notwithstanding the presence of a vegetation protection order.44 I am satisfied that the application has been made by the Borchis because of a genuine dispute. I am therefore satisfied that even if there is a vegetation protection order in respect of the trees, an order may be made in relation to the trees. Section 73(1)(c) 42 The matters the Tribunal must consider in making an order under s 66 of the NDA are set out at s 73, s 74 and s 75 of the NDA. 43 Redland Shire (Protection of Vegetation) Local Law No 6, s 3. 44 NDA s 67(1). -- 15 of 19 -- 16 [55] There is no evidence before me that the trees have any historical, cultural, social or scientific value. Section 73(1)(d) [56] There is no evidence before me that the trees make any specific contribution to the local ecosystem and to biodiversity. As large, mature eucalypts the trees no doubt form part of the local ecosystem. Ms Kettle says in her Response that the trees are of significant age and are of vital importance to water quality and wildlife being situated in the catchment area of the Leslie Harrison Dam and a wildlife refuge release area. Section 73(1)(e) [57] I accept that the trees, as mature and healthy eucalypts, are an attractive part of the local landscape and contribute to the scenic value of Ms Kettle’s land and the locality generally. Section 73(1)(f) [58] There is no evidence that the trees contribute to public amenity. Section 73(1)(g) [59] There is no evidence that the trees contribute to privacy in respect of Ms Kettle’s property, to the garden design of the property, or as protection from sun, wind, noise, odour or smoke. Section 73(1)(h) [60] There is no evidence that the trees contribute to soil stability, the water table or other natural features of Ms Kettle’s land or the general locality other than as addressed under s 73(1)(d) considerations. Section 73(1)(i) [61] There is no evidence of any specific risk associated with the trees in the event of an extreme weather event. Section 73(1)(j) [62] The arborist, Mr Stovell, makes specific recommendations in relation to the removal of deadwood from the upper crowns of the trees. Other than these recommendations, there is no suggestion that pruning of the trees is required. Section 73(1)(k) [63] The trees are various species of eucalypts and are neither pests nor weeds. Section 74 -- 16 of 19 -- 17 [64] I have dealt earlier in these reasons with the other factors contributing to the issues with the dividing fence, and have concluded that the trees have not caused the damage to the fence or deterioration in the condition of the fence. [65] Pursuant to s 74(2) of the NDA I may consider a number of matters in deciding whether to make an order that involves destroying a tree. In their application the Borchis make no mention of the type of damage identified by Mr Rebibou in his report relating to the impact of the roots of the trees. While there is no specific evidence before me on this question, I am prepared to accept that the Borchis were not aware of the potential for the trees to cause damage to the dwelling on their land as identified by Mr Rebibou until receipt by them of the engineer’s report.45 I find that there has been no delay by the Borchis in seeking to address the issues identified in the engineer’s report. [66] There is no evidence before me that anything other than the trees is, or may be, contributing to the likelihood of damage to the Borchis dwelling as identified in the report of Mr Rebibou. Orders [67] A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.46 In his report Mr Rebibou recommends that: 1. A root barrier be installed along the rear of the Borchis’ property in order to properly protect the footings and plumbing of the Borchis’ dwelling against long term tree activity and the influences of reactive clay movement from Ms Kettle’s property; and 2. The tree canopies extending over the boundary be removed or trimmed on a regular basis. [68] Dealing with the second recommendation, I am not satisfied that Mr Rebibou has the required expertise or qualifications to make recommendations about the proposed tree works. More fundamentally, the report of Mr Rebibou does not establish any link between the proposed tree canopy works and the issues relating to the damage to the Borchis’ dwelling. Specifically, there is nothing in Mr Rebibou’s report that identifies how the proposed tree canopy works will in any way address or ameliorate the potential for damage to the Borchis’ land or property on their land. [69] Mr Stovell recommends the removal of large deadwood from the canopies of trees #1, #2 and #5. I am not satisfied on the balance of probabilities that such an order is required in order to remedy, restrain or prevent 45 The report is dated 22 January 2016 and was presumably not received by the Borchis until on or after this date. 46 NDA, s 72. -- 17 of 19 -- 18 serious damage to the Borchis’ land or property on their land or serious injury to a person. Similarly, I am not satisfied that such an order is required to remedy restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the Borchis’ land. [70] I am however satisfied that an order about the installation of a root barrier is appropriate to prevent the serious damage identified by Mr Rebibou in his report. Mr Rebibou states that the installation of an appropriate root barrier will protect the Borchis’ dwelling from the potential for damage caused by the roots of the trees. [71] Who should pay for the installation of the root barrier? A tree keeper is responsible for the proper care and maintenance of trees on their land.47 A tree keeper is responsible for ensuring that the tree does not cause, among other things, serious damage to a person’s land or property on the land.48 The Borchis’ have unsuccessfully sought to resolve the issues relating to the trees with Ms Kettle. I am satisfied that Ms Kettle has not meaningfully engaged with the Borchis’ in an attempt to resolve the dispute. One need look no further than Ms Kettle’s failure to comply with numerous Tribunal directions to support this conclusion. The Borchis have been left with no option other than to pursue this application. Ms Kettle should pay for the installation of the root barrier. [72] The appropriate orders are that Ms Kettle install a root barrier along the boundary between her land and the Borchis’ land adequate to address the root incursion identified in the report of Mr Rebibou. There is no evidence before me as to the cost of the work. If the cost of the installation of the root barrier is more than the cost of the removal of trees #1, #2 and #5, Ms Kettle may choose to have the trees removed. This will be a matter for Ms Kettle to address. [73] I make the following orders: 1. Sharon Kettle must install a root barrier along the boundary between 6 Possum Court, Capalaba and 46 Howlett Road, Capalaba (‘the root barrier’); 2. The root barrier must be: i) adequate to contain the roots from the trees identified as tree #1, tree #2 and tree #5 in the report of Andrew Stovell dated 26 June 2016 (‘the trees) within 46 Howlett Road, Capalaba and to prevent the spread of the roots of the trees to 6 Possum Court, Capalaba; ii) installed under the supervision of an appropriately qualified arborist of at least Australian Qualifications Framework Level 5. 47 NDA s 41(1). 48 Ibid, s 52(2)(b). -- 18 of 19 -- 19 3. Sharyn Kettle must pay for the costs of the installation of the root barrier; 4. John Borchi and Tracey Borchi must provide such reasonable access to their property as may be required by Sharyn Kettle, and any contractors engaged by her, to undertake the installation of the root barrier; 5. The root barrier must be installed within three (3) months of the date of this order 6. If Sharyn Kettle fails to comply with orders 1, 2, 3 and 5: i) John Borchi and Tracey Borchi may install the root barrier; ii) John Borchi and Tracey Borchi and/or their servants and/or their agents are authorised to enter upon 46 Howlett Road, Capalaba in order to undertake the installation of the root barrier; iii) John Borchi and Tracey Borchi may recover from Sharyn Kettle the cost of the installation of the root barrier. -- 19 of 19 --