Fairbank and Anderson v Cassar and Anor [2014] QCAT 608

CITATION: Fairbank and Anderson v Cassar and Anor [2014] QCAT 608 PARTIES: Michael Fairbank and Cveta Anderson (Applicants) v Anthony Cassar and Brooke Cassar (Respondents) APPLICATION NUMBER: NDR020-13 MATTER TYPE: Other civil dispute matters HEARING DATE: 7 November 2014 HEARD AT: Maroochydore DECISION OF: Member McLean Williams DELIVERED ON: 24 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Within 60 days of the date of these orders tree work is to be undertaken by the Respondent on the trees at the Respondent’s property that are identified in Mr Inman’s report as follows: a. Tree No. 1: is to have its canopy thinned, in order to enable improved passage of sunlight. b. Tree No. 8: the 2 elongated branches growing towards the available light shown in figure 13 of Mr Inman’s report are to be removed, and the canopy of the tree is then to be reduced to the maximum extent possible without adversely impacting on the future viability of the tree. c. Tree No. 10: is to have its canopy thinned to the maximum extent possible without impacting on the future viability of the tree in order to maximise sunlight. d. Tree No. 11: the canopy of tree No. 11 is to be thinned, in order to maximise sunlight. e. Trees No. 12: is to be removed in its -- 1 of 7 -- 2 entirety. f. Tree No. 13: is to be subjected to a reduction of its overall canopy in order to improve sunlight. CATCHWORDS: TREE DISPUTE – where some tree branches overhanging onto neighbouring property and Applicants’ otherwise complaining of obstruction of sunlight – whether trees affecting the land – whether trees causing damage or ‘substantial, ongoing and unreasonable’ interference – meaning of ‘severe obstruction’ in the specific case of sunlight obstruction Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 46, s 66 APPEARANCES and REPRESENTATION (If any): APPLICANT: The Applicants were self-represented. RESPONDENT: The Respondents were self-represented. REASONS FOR DECISION [1] I heard this matter at Maroochydore, on 7 November 2014. [2] The Applicant is Mr Michael Fairbank (together with Ms Cveta Anderson, although Ms Anderson is not named in the Application), who are the owners and occupiers of a residence at 16 Fremantle Place, at Kuluin, on the Sunshine Coast. [3] On 24 January 2013 the Applicant commenced this appliction (fully supported by Ms Anderson) in relation to a tree dispute, pursuant to the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) against Mr Anthony Cassar and Mrs Brooke Cassar. This matter is one of three seperate (yet very similar) applications, commenced by adjoining neighbours at numbers 16, 18, and 20 Fremantle Place, each against Mr and Mrs Cassar. The three matters (NDR217-12; NDR238-12; and NDR020-13) were heard concurrently, and the evidence in each matter was substantially similar. [4] The Applicant and Ms Anderson’s home at 16 Fremantle Place faces in a generally southerly direction. That is to say Fremantle Place is on the southern frontage of their property, and the backyard to the home is then on the northern side of the property. The Respondents’ property is also located further to the north, over what is the back boundary fence to the house at No. 16. The Applicant and Ms Anderson complain that a number of large (predominantly) eucalypt trees on the Respondents’ property -- 2 of 7 -- 3 impact upon their land, in terms recognised by s 46 of the Act. Section 46 of the Act provides: When is land affected by a tree 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. [5] According to evidence placed before the Tribunal, there is a stand of 13 trees along the mutual boundary between the homes owned by the three Applicants, and the Respondents. In a tree assessment report prepared by Mr Benjamin Inman (the QCAT-appointed tree assessor), the stand of trees are referenced as being trees Nos. 1 – 13. For convenience, throughout these reasons I will continue to refer to the trees by Mr Inman’s sequence of numbering. [6] Not all the trees impact equally on all of the Applicants. I take the view that the Tribunal’s jurisdiction may only be enlivened on a ‘tree by tree’ basis. That is to say that an Applicant must first show that a particular tree enlivens s 46 of the Act, before an order might be obtained from this Tribunal in relation to it. [7] In their materials filed before QCAT, the Applicant and Ms Anderson contends that ‘the trees’ behind their home (and here referring particularly to trees No.s 8, 10, 11, 12 and 13) adversely impact upon them in a manner that they say amounts to substantial, ongoing and unreasonable interference with their use and enjoyment of their home, because the trees are very large, and branches and large quantities of leaf litter falls from the trees, onto their property. Photographs produced into evidence do show appreciable quantities of leaf litter, branches, and limbs that have fallen onto their property. The Applicants complain that the tree detritus shown in the photographs is a daily event, and that they are concerned that falling limbs from these trees present a risk to human safety for occupants and for invitees to their property. [8] Although the Applicant and Ms Anderson are concerned about the adverse impact of falling branches and leaf litter, and it is at least arguable that their property is ‘affected by’ the trees for purposes of s 46(a)(ii)(C) of -- 3 of 7 -- 4 the Act by reason of this tree detritus, it would seem that they are primarily concerned about the adverse impact caused by the trees in terms of these now obstructing sunlight onto their property. They complain that their home is very cold in the winter months because of the excessive shading, and that they are unable to install solar panels on their roof because of that shading. Accordingly, the Applicant and Ms Anderson seek orders from QCAT in relation to the trees on the respondents’ land primarily in order to remedy what they regard to be a substantial, ongoing, and unreasonable interference with their use and enjoyment of their land arising by reason of the obstruction of sunlight. In this latter regard, s 66 of the Act specifically provides: … (2) QCAT may make orders it considers appropriate in relation to a tree affecting the neighbours’ land – (a) … (b) to remedy, restrain or prevent— (i) … (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. [9] In light of s 66(3)(b), this Tribunal is empowered to make orders in relation to a tree obstructing sunlight only if satisfied that the obstruction of sunlight to either a window or a roof is a ‘severe obstruction’. [10] The Macquarie Dictionary variously defines the adjective “severe” so as to include ‘harsh’ or as ‘hard to endure’. It is on this basis that I must consider the obstruction of sunlight for purposes of s 66(2)(b)(ii) of the Act. [11] In their application to QCAT in response to Question 30 on the application form, the Applicants contend: Sunlight is significantly reduced during winter months. Our house is facing north reducing any sunlight to the roof, leaving the house very cold during these periods. We have had consultation from solar companies who have indicated that there is not enough sunlight to operate solar panels. [12] In their statement of evidence filed before the Tribunal on 28 August 2013 the Applicants have elaborated that the amount of shade to their property is increasing over time, because the offending trees have continued to -- 4 of 7 -- 5 grow. The Applicants have taken advice from Queensland Renewable Energy (a Sunshine Coast solar panel installation company) and have been told that it would not currently be viable for them to install a solar system because their roof is currently subject to too much shade. [13] The Respondents have put into evidence a contrary expert report prepared by Mr Trevor Berrill and Mr Dave Keenan from Sustainable Energy Systems Consultants (‘Sustainable Energy Systems’), that seeks to show that shade from the Respondents’ trees will not preclude the possibility of any of the Applicants now installing a solar array. Neither of the authors of the Sustainable Energy Systems report were made available for cross-examination before the Tribunal, although to be fully fair to the Respondents, none of the Applicants requested that the gentlemen from Sustainable Energy Systems be required at the hearing for cross-examination. Although that forensic oversight is completely understandable in the case of lay people who are self-representing, the result of it is that, in the absence of the authors of that report to provide an explanation of the several assumptions that have been used in the creation of it, it is very difficult for me to interpret the data contained therein; nor to draw the necessary distinctions between what appear to be generalised statements about the usual performance attributes of solar systems and the specific performance attributes likely to be achieved by any solar array that is installed on the roof of (in this instance) 16 Fremantle Place. [14] On the front cover of the Sustainable Energy Systems report is a 2013 photograph taken from Google Earth that does reveal the three Applicants’ homes to be very substantially shaded by the Respondents’ trees. No. 16, in particular, is shown to be virtually fully in the shade in that picture. Yet, in the body of that report it then seems to contend that solar panel arrays installed on the western face of the roof of the house at 16 Fremantle Place might still achieve ‘up to’ 72% of the performance efficiency of an array installed on the northern roof, and that the best location for solar panels on the roof of this house would be on the western roof. Although the overall effect of that report would seem to be to demonstrate that it would still be possible to ensure a solar installation on the roof of the applicant and Ms Anderson’s home, the report itself is so couched by assumptions that I do not feel I can repose much faith in it, at least not without some further elaboration of those assumptions. At the end of it, when I assess the two solar reports I much prefer the evidence obtained by the applicants from Queensland Renewable Energy wherein the applicants have been advised that it would not be economically viable to install a solar system on the roof at 16 Fremantle Place. [15] In relation to the test required by s 66(3) of the Act and in light of the evidence that has been placed before QCAT, I am satisfied that there is, in this instance, a “severe obstruction” of sunlight to the roof of the dwelling at 16 Fremantle Place Kuluin, at least in respect of certain trees. I am therefore satisfied that this Tribunal may make orders to remedy that -- 5 of 7 -- 6 sunlight obstruction at least in relation to those particular trees for which there is evidence of sufficiently adverse impact on the Applicants. The QCAT Tree Assessor’s Report and the Applicant’s Arboreal Evidence [16] The QCAT-appointed tree assessor in this instance was Mr Benjamin Inman. Mr Inman attended at the Respondents’ and the Applicant’s property on 2 March 2013 and has since provided a report of that inspection. According to that report, not all of the 13 trees impact adversely on the Applicant’s home. Only those trees that fit within s 46 of the Act insofar as it pertains to the Applicant’s home at (in this instance) number 16 Fremantle Place are now referred to in these reasons for decision. [17] The three Applicants have also retained an arboriculture expert, Mr Brendan Martin. I have also considered Mr Martin’s report as part of the formulation of my reasons for this decision. [18] Tree No. 1 is a mature eucalyptus Propinqua located approximately 7 metres north of the fence line and behind the Applicant and Ms Anderson’s home. Mr Inman notes that this tree to be 12 metres in height and that the extremity of the canopy of the tree just reaches the edge of the fence line. Although Mr Inman specifies that no tree work is required at this stage, I am of the view that this recommendation does not go far enough, and takes insufficient account of the phototropic propensities of this tree, which have not been adequately considered by Mr Inman’s recommendation. Because of its adverse impact on sunlight onto the Applicant’s property it should now have its canopy judiciously thinned, in order to enable improved passage of sunlight. [19] Tree No. 8 in Mr Inman’s report is another mature eucalyptus Propinqua located approximately 1.5 metres to the east of tree No. 7. Mr Inman reports that this tree appears to be growing under tree No. 7, yet that two branches of tree No. 8 are growing towards the available light towards the south and hence over the property of 16 Fremantle Place. In my view, the evidence reveals that tree No. 8 is contributing to the obstruction of sunlight and it should now become subject to pruning. The 2 elongated branches growing towards the available light shown in figure 13 of Mr Inman’s report should now be removed, and the canopy of the tree should then be reduced to the maximum extent possible without adversely impacting on the future viability of the tree. [20] Tree No. 10 in Mr Inman’s report is a mature eucalyptus Propinqua located approximately 10 metres to the north of 16 Fremantle Place. Although Mr Inman reports that no part of this tree overhangs the Applicant’s property at 16 Fremantle Place, the available evidence reveals that the height of the tree is such that it does impact on the applicants’ access to sunlight, such that tree No. 10 should be subject to tree work, with the intent of reducing the bulk of its canopy. Accordingly, tree No. 10 should have its canopy thinned to the maximum extent possible without impacting on the future viability of the tree, in order to maximise sunlight. -- 6 of 7 -- 7 [21] Tree No. 11 in Mr Inman’s report is a mature eucalyptus Propinqua located approximately 5 metres to the north of the fence and opposite the north-western corner of 16 Fremantle Place. This tree does not appear to immediately impact on the Applicant’s home, however it is part of the series of trees that are impacting upon sunlight. Mr Inman has recommended that there be some pruning of deadwood in the tree and I tend to agree with that. At the same time, the canopy of tree No. 11 should also be thinned at the tree lopper’s discretion, in order to maximise sunlight. [22] Trees Nos. 12 & 13 are both mature eucalypts. Although Mr Inman has recommended that tree No. 12 only be subject to tree work to the extent of the removal of deadwood from the tree, I take the view, on the basis of the evidence before me, that tree No. 12 is a very substantial cause of the problems of shading of the house at No. 16 Fremantle Place, as well of their adjoining neighbours at No. 18. The tree is 22 metres in height and has a canopy width of 23 metres. I further note that it extends into the property at 16 Fremantle Place by approximately 5 metres. Tree No. 12 should be removed in its entirety. Tree No. 13 would also appear to contribute to the shading difficulties experienced by the applicants’ home. In my view, it would be appropriate if this tree were to be subject to thinning, and a reduction of its overall canopy in order to improve sunlight. [23] In summary, and within 60 days of the date of these orders this Tribunal orders that tree work be undertaken by the Respondents on the trees at the Respondents’ property that are identified in Mr Inman’s report in response to application NDR020-13 in accordance with the following: (a) Tree No. 1: should now have its canopy thinned, in order to enable improved passage of sunlight. (b) Tree No. 8: The 2 elongated branches growing towards the available light shown in figure 13 of Mr Inman’s report should now be removed, and the canopy of the tree should then be reduced to the maximum extent possible without adversely impacting on the future viability of the tree. (c) Tree No. 10: Tree No. 10 should have its canopy thinned to the maximum extent possible without impacting on the future viability of the tree in order to maximise sunlight. (d) Tree No. 11: The canopy of tree No. 11 should also be thinned at the tree lopper’s discretion, in order to maximise sunlight. (e) Trees No. 12: should be removed in its entirety. (f) Tree No. 13: should be subjected to a reduction of its overall canopy in order to improve sunlight. -- 7 of 7 --