Durrington and Kruger v Cassar and Anor [2014] QCAT 609

CITATION: Durrington and Kruger v Cassar and Anor [2014] QCAT 609 PARTIES: John Durrington and Shane Kruger (Applicants) v Anthony Cassar and Brooke Cassar (Respondents) APPLICATION NUMBER: NDR217-12 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. 3 is to be removed. b. Those portions of tree No. 5 that overhang the applicants’ property at 18 Fremantle Place is to be wholly removed, and the overall mass of the canopy of tree No. 5 is to be further reduced by the maximum extent possible, without thereby adversely impacting on the future viability of the tree. c. The southern leader of tree No. 6 should be removed. d. In respect of Tree No. 8, the 2 elongated branches growing towards the available light (as shown in figure 13 of Mr Inman’s report) is to be removed, and the canopy of the tree is to be reduced to the maximum extent possible without thereby adversely impacting on the future viability of the -- 1 of 9 -- 2 tree. e. Tree No. 10 is to have its canopy thinned to the maximum extent possible without thereby impacting on the future viability of the tree. f. The canopy of tree No. 11 is to be thinned to the maximum extent possible without thereby impacting on the future viability of the tree. g. Tree No. 12 is to be removed. h. Tree No. 13 is to be subject to thinning and 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 Applicants are Mr John Durrington and Mr Shane Kruger, who are the joint owners and occupiers of a residence at 18 Fremantle Place at Kuluin on the Sunshine Coast. [3] On 21 November 2012 the Applicants commenced this appliction in relation to a tree dispute, pursuant to the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) against their neighbours, 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. -- 2 of 9 -- 3 [4] The Applicants’ home at 18 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 Applicants’ home is then on the northern side of the property. The Respondents’ property is also located further to the north, over what is the Applicants’ back boundary fence. The Applicants complain that a number of large (predominantly) eucalypt trees on the Respondents’ property 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), this stand of trees are now referenced as being trees 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 Mr Durrington and Mr Kruger contend that ‘the trees’ behind their home 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 by the Applicants do show appreciable quantities of leaf litter, branches, and limbs that have fallen into their in-ground swimming pool, as blocking their gutters, and as having accumulated on the surfaces of their outdoor entertaining area and outdoor furniture. The applicants complain that the -- 3 of 9 -- 4 tree detritus shown in the photographs is a daily event, and the problem is exacerbated during windy weather. In relation to their in-ground swimming pool, the applicants specifically complain that the constant barrage of leaf litter into the pool is a costly interference, as it requires the application of extra pool chemicals and additional running of the filter. [8] Although the Applicants 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 the Act by reason of this tree detritus, the Applicants are primarily concerned about the adverse impact caused by the trees in terms of these now obstructing sunlight onto their property. Accordingly, the Applicants 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: (1) 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. (2) 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 Autumn, Winter and Spring (April – September). All applicants’ living areas face north which has any direct -- 4 of 9 -- 5 sunlight blocked by the respondents’ trees. This causes the respondents’ property to be very cold during the other periods. [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 grow. The Applicants further complain that they are unable to install solar panels onto the roof of their home because of this shading. The Applicants have taken advice from Eco-Smart Solar (a Sunshine Coast solar panel installation company) and have been told that it would not 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 assumptions that have been used in the creation of it, it is now 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 performance 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) 18 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. Yet, in the body of that report it seems to state that solar panel arrays installed on either the eastern, western or southern face of the roof of the house at 18 Fremantle Place might still achieve ‘up to’ 79% of the performance efficiency of an array installed on the northern face of the roof, and that the best location for solar panels on the roof of this house would be on the eastern roof, yet dispersed over several locations. Although the overall effect of the report would seem to be to demonstrate that it would still be possible to ensure a solar installation on the roof of the Applicants’ home, the report itself is so couched by assumptions that I do not feel I can repose much faith in it without some further elaboration of those assumptions, and I sense an air of unreality about the alternative solar installation that it now proposes. At the end of it, when I assess the two solar reports, I much prefer the evidence obtained by the Applicants from Eco-Smart Solar wherein the Applicants have been advised that it would not be economically viable to install a solar system on the roof at 18 Fremantle Place. -- 5 of 9 -- 6 [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 three dwellings on Fremantle Place Kuluin, at least in respect of certain trees. I am therefore satisfied that this Tribunal may make orders to remedy that 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 Applicants’ Arboreal Evidence [16] The QCAT-appointed tree assessor in this instance was Mr Benjamin Inman. Mr Inman attended at the Respondents’ and the Applicants’ 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 Applicants’ home. Only those trees that fit within s 46 of the Act insofar as it pertains to the Applicants’ home at (in this instance) number 18 Fremantle Place are now referred to in these reasons for decision. [17] The three Applicants have also retained an arboriculture expert, Mr Brendan Martin. Mr Martin adopts the same sequence of tree numbering as used by Mr Inman, and says that these same trees, with the exception of tree No. 11, impact upon the Applicants from number 18. [18] Tree No. 3 is a mature eucalyptus Propinqua located approximately 3 metres north of the fence line and behind the Applicants’ home. Mr Inman notes that this tree extends into 18 Fremantle Place over the north-western corner of the house by approximately 3 metres. Mr Inman also notes that the tree contains some deadwood in the upper canopy. Although Mr Inman recommends that ‘tree works’ (as defined), be confined to only the removal of deadwood greater than 10 millimetres in diameter from the tree canopy, 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 Applicants’ property it ought be removed altogether. [19] Tree No. 5 in Mr Inman’s report is a semi-mature eucalyptus Propinqua located approximately 3 metres north of the fence line, and opposite the western end of the outdoor living/pool area of 18 Fremantle Place. Although Mr Inman notes the tree to be of good structure, health and vigour, he further notes the entire width of the tree to overhang the Applicants’ property by approximately 2 metres at a point approximately 8 metres above ground height, and mostly over the pool area of 18 Fremantle Place. Although Mr Inman is of the view that no tree work is required in respect of tree No. 5, in my view this conclusion also takes insufficient account of the phototropic propensities of that tree. Those portions of the tree that overhang the Applicants’ property at 18 Fremantle Place should now be wholly removed, and the overall mass of the canopy of tree No. 5 should then be further reduced by the maximum extent possible without adversely impacting on the future -- 6 of 9 -- 7 viability of the tree, in order to thereby reduce the sunlight obstruction by that tree onto the house owned by the Applicants. [20] Tree No. 6 in Mr Inman’s report is a golden rain tree, located approximately 2 metres to the north of the fence line, and opposite the pool area of 18 Fremantle Place. Mr Inman notes this tree to have a bifurcated trunk. The southern leader of the tree extends over the Applicants’ property by approximately 1.5 metres. Mr Inman has recommended the removal of the southern leader in order to reduce any future impact of this tree upon the Applicants’ property. It appears likely that this tree will however continue to grow towards the south, such that it will continue to impact adversely upon the Applicants’ property. In my view, Mr Inman is correct to have assessed that the southern leader of tree No. 6 should now be removed in its entirety. Consideration should be given to the total removal of tree No. 6, although I will only order the removal of the southern leader. [21] 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 18 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. [22] Tree No. 9 in Mr Inman’s report is a juvenile tree of unknown species located only approximately 1 metre to the north of the fence and opposite the eastern end of the pool area of 18 Fremantle Place. Although the tree is not presently one that falls within s 46 of the Act, Mr Inman observes that the tree will, inevitably, grow over the fence in the future, such that some consideration should be given to whether it should be removed now, whilst still small in height and easily removed. This Tribunal can make no orders in respect of this juvenile tree. The parties should however heed the advice given by Mr Inman and consider whether tree No. 9 should be removed whilst it is still economical to do so. [23] 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 Applicants’ property at 18 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. -- 7 of 9 -- 8 [24] 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 Applicants’ 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. [25] 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 Applicants’ property. The tree is 22 metres in height and has a canopy width of 23 metres. Although Mr Inman reports that the tree does not extend over the fence line into the Applicants’ home at 18 Fremantle Place, I do note that it extends into the adjoining property at 16 Fremantle Place by approximately 5 metres, and it does cause shading problems for the Applicants at number 18. 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. [26] 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 NDR217-12 in accordance with the following: a. Tree No. 3 is to be removed. b. Those portions of tree No. 5 that overhang the Applicants’ property at 18 Fremantle Place should be wholly removed, and the overall mass of the canopy of tree No. 5 should then be further reduced by the maximum extent possible, without adversely impacting on the future viability of the tree. c. The southern leader of tree No. 6 should be removed, in its entirety. d. In respect of tree No. 8, the 2 elongated branches growing towards the available light shown in figure 13 of Mr Inman’s report should 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. e. Tree No. 10 is to have its canopy thinned to the maximum extent possible without impacting on the future viability of the tree. f. The canopy of tree No. 11 is to be thinned to the maximum extent possible without impacting on the future viability of the tree. g. Tree No. 12 is to be removed. -- 8 of 9 -- 9 h. Tree No. 13 is to be subject to thinning and a reduction of its overall canopy in order to improve sunlight. -- 9 of 9 --