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  • Unreported Judgment

Melvaig Pty Ltd v McMillan-Kay

 

[2020] QCAT 21

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Melvaig Pty Ltd v McMillan-Kay [2020] QCAT 21

PARTIES:

Melvaig Pty Ltd

(Applicant)

 

v

 

Robert Malcolm McMillan-KAY

(Respondent)

APPLICATION NO/S:

NDR152-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

22 January 2020

HEARING DATE:

30 July 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

The Application for a Tree Order is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where Application for a tree dispute filed – where it is alleged trees have caused serious injury or damage – where Applicant seeks trees on Respondents’ land to be removed – whether root ingress into a sewer line constituted a substantial, ongoing and unreasonable interference – whether tree debris and mould constituted a substantial, ongoing and unreasonable interference

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 41(1), s 42, s 45, 47(1), s 48, s 49, s 52(1), s 61, s 66, s 73(1), s 74, s 75  

Fraser Coast Regional Council Local Law Number 3 (Community and Environmental Management) 2011 (Qld) s 14

Thompson v White [2012] QCAT 381

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented by Mr G Schubert (Director)

Respondent:

Self-represented, supported by his wife Mrs Sinclair

REASONS FOR DECISION

Background

  1. [1]
    For many years, Melvaig Pty Ltd (‘the Applicant’) and Mr Robert McMillan-Kay (‘the Respondent’) have owned adjoining properties in a residential area of Maryborough, Queensland. For the Applicant, its property is used as an investment and is comprised of three lettable living spaces within a single dwelling, which are registered with the Fraser Coast Regional Council (‘the Council’) as flats. For the Respondent, his property is a family home, built over 100 years ago.
  2. [2]
    The Respondent’s property contains many trees and vegetation, which the Respondent has carefully manicured in a parklike setting within an urban backyard. The Respondent and his wife enjoy hosting others, primarily family, on the property. For them, the trees on the property provide a good deal of shade and enjoyment.
  3. [3]
    The Applicant’s property also contains an old construction. Over the past ten years, the Applicant has raised concerns with the Respondent about the adverse effect that the trees and vegetation on the Respondent’s property are having on its property. The Applicant has received complaints from its tenants.

The Application

  1. [4]
    In its application (‘the Application’), the Applicant requests the Tribunal to make an order to remove several large trees that are situated upon the Respondent’s property. The Respondent opposes that order, and indeed the making of any order, on the basis that he is a responsible tree-keeper, who has regularly maintained the trees to an acceptable standard. He says that he will continue to do so into the future.[1]
  2. [5]
    From the Applicant’s perspective, removal of trees on the Respondent’s property would alleviate several concerns, maximise the benefits to it in owning its property, minimise tenant complaints and minimise ongoing maintenance and repair costs.
  3. [6]
    In the Application, the Applicant identified many issues, and provided extensive supplementary materials to assist the Tribunal. The Applicant complained of having to deal with excessive leaf droppage that caused damage to the eaves on its property, and mould. The Applicant also complained of damage caused by the ingress of tree roots into sewer pipes, for which it maintains a joint responsibility with the Respondent.
  4. [7]
    The Applicant and the Respondent have a shared sewer line for their properties. The Council provided a letter to the Applicant, dated 5 September 2016, identifying that the properties were ‘connected to Council’s sewerage network by way of a combined house drain’.[2] The Council provided information and recommendations about the ownership and responsibility for combined house drains. The Applicant appears not to accept, at least some of, those statements by the Council as the Applicant stated that ‘as the existing sewerage line is on the Respondent’s property’, it is ‘therefore his property and responsibility’.[3]

Attempts to resolve the dispute with the Respondent

  1. [8]
    The Applicant states that:
    1. (a)
      a written request to resolve the dispute was provided to the Respondent in January 2009;
    2. (b)
      there have been numerous approaches by representatives of the Applicant over the years;
    3. (c)
      complaints have been made to the Council; and
    4. (d)
      a mediation in 2017 was ineffective.

Attempts have been made to resolve the dispute under the local law, local government scheme or administrative processes

  1. [9]
    The Applicant says that several complaints were made to the Council and a councillor inspected the problem, but the Council elected not to act.[4]

There is a dispute about overhanging branches

  1. [10]
    The Applicant says that branches hang more than 50 centimetres over the dividing fence line and the branches are more than 2.5 metres above ground level.[5]

There is a dispute about trees causing serious injury to any person

  1. [11]
    The Applicant alleges that the Respondent’s trees have caused, and continue to cause, serious injury. The Applicant describes the basis of the claim in the following terms:

Every year when the tree is in flower our property is covered in pollen, Torelliana Cadaghis are extremely heavy pollen producers which turns to mold [sic] on buildings. Both pollen and mold [sic] are trigger elements for asthma. The flowers also attract large numbers of flying foxes who cover roofs and walls with excreta – see photo #6.[6]

There is a dispute about trees causing serious damage to the Applicant’s land, or property on the Applicant’s land

  1. [12]
    The Applicant says that the Respondent’s trees have caused, and continue to cause, serious damage to the Applicant’s property. The Applicant describes the basis of the claim in the following terms:

Every year, after flowering, when the gum nuts and leaves fall the yard is covered in gum nuts – Photo #6 – and large leaves. The gutters are full of leaves and rotted out and when it rains the valley gutter floods inside #3, causing paint to lift and a potential fire risk. Tree roots continually clog the sewerage line.[7]

  1. [13]
    The Tribunal accepts that a reference to #3 is a reference to (tenanted) flat three, which comprises part of the Applicant’s property.

The Applicant concedes that something other than the trees have contributed, or are contributing, to the injury or damage

  1. [14]
    The Applicant concedes that other vegetation has caused, or is contributing, to the alleged injury or damage. The Applicant describes the contribution in the following terms:

The smaller trees on the fence line – over the sewerage pipe in #14’s yard are extending their roots into the sewerage line also causing numerous blockages and potential blockage sites – see map and list of distances of root penetrations also photo #5.[8]

  1. [15]
    The Tribunal accepts that a reference to #14 is a reference to the Respondent’s property.
  2. [16]
    In response to the question ‘is there anything other than the tree that may have caused, or contributed to, some or all of the injury or damage’, the Applicant states:

Trees pleural [sic] – see photos and Mr McMillan-Kay’s desire to have a rainforest in his backyard to shade his high set house in summer. All this on a 809 m² residential block.[9]

  1. [17]
    The Applicant does not allege, or concede, that it has done anything that has contributed, or is contributing to, the injury or damage.[10] The Applicant denies that any tree on its land may have contributed, or is contributing, to the injury or damage.[11]

There is a dispute as to whether the Respondent has taken any steps to prevent further injury or damage

  1. [18]
    The Applicant says that the Respondent has not taken any steps to prevent further injury or damage.[12] While the injury or damage is not conceded by the Respondent, the Respondent does acknowledge having maintained the trees through regular pruning.
  2. [19]
    The Applicant says that it has taken steps to prevent further injury or damage by making requests of the Respondent to deal with the situation, to complain to the Council and attend a mediation session with the Respondent. Also, the Applicant says that it has had part of its sewerage line bypassed to try to eliminate root blockage. The Applicant says that a total visual inspection of the sewerage line was conducted on 16 January 2018.[13]
  3. [20]
    The Applicant alleges that both a corporate officer (Mr G Schubert), and his wife, have suffered ill health as result of the tree growth promoted by the Respondent. The Applicant used these words in making the allegation:

These ongoing issues with blocked sewerage, blocked gutters with leaves and pollen et cetera and enforced maintenance is also affecting the health of my Wife and myself as we never know what disaster to expect when a tenant telephones us.[14]

There is a dispute as to whether the trees have caused substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of its land

  1. [21]
    The Applicant alleges that the Respondent’s trees have caused substantial, ongoing and unreasonable interference with the use and enjoyment of its land currently and in the past.[15] The Applicant provides the following statement in support of the allegation:

As the provider of Rental Accommodation we are required, by law to provide a safe, clean and healthy environment for our Tenants. This we cannot do when our building and yard is covered in disease-causing pollen, leaves, mold [sic], gum nuts and flying fox droppings. When the sewerage line is blocked in our yard, and under the building is flooded in raw sewerage this is an extreme health issue. The sewerage from #14 also flows back into our place. This leads to discontented Tenants and a loss of our living income.[16]

  1. [22]
    The Applicant says that the interference is caused by things, other than a single tree, that have contributed to, or are contributing to, the interference. The Applicant provides the following statement in support of the allegation:

The problems are not confined to one tree, but several. The tree roots can and will extend to over three times the distance to that of its height. The land size at #14 is 809 m² our block is 911 m².[17]

  1. [23]
    The Applicant says the Respondent has not taken any steps to stop or reduce interference, but that it has taken steps to reduce interference. The Applicant says that its steps in that regard have been as follows:

Personal approaches by my wife and myself. Written request for action on the problems. Approaches by our tennants [sic]. Complaints to Council and Councillor. Mediation on 28 August 2017. All of which were ignored. We reran a section of our sewerage line on 15/9/17, which the plumber advised would stop the blockages. The next blockage occurred on 21/12/17, 64 feet or 20 m from the new bypass section.[18]

There is a dispute as to whether the tree (or trees) was on the Respondent’s land at the time the Applicant acquired its land

  1. [24]
    The Applicant says that it purchased its property in 1981 and at that time the tree, or trees, the subject of the dispute were not on the Respondent’s land.[19]

Excessive shading: interference that is an obstruction of sunlight or a view

  1. [25]
    During the Tribunal hearing, and in discussions with the Tribunal appointed tree expert, the Applicant raised the issue of shading. However, the Applicant did not raise that issue in the Application in the context of interference as an obstruction of sunlight or a view, which would have been appropriate if that was of concern to the Applicant when filing the Application.

The Tree or trees identified by the Applicant as of primary concern

  1. [26]
    The Applicant refers specifically to the main tree of the complaint as a Corymbia Torelliana or Cadaghi, which it describes as ‘an environmental weed in South East Queensland’.[20] The Applicant says that other trees of complaint are ‘palms et cetera that are planted in #14 along the fence line, over the sewerage pipeline, to the front fence’.[21] The Applicant then identifies a Leopard tree which ‘has the potential to create future problems with roots and leaves’.[22] Otherwise, the Applicant refers in general terms to the backyard of the Respondent’s property which it describes as ‘thick with various trees to create a rain forrest [sic] effect’.[23] At the Tribunal hearing, the Applicant specifically complained about two trees, being the Cadaghi tree and the Leopard tree as the primary concern.

Consent or authorisation from the government authority to carry out works on the tree

  1. [27]
    The Applicant submitted that no consent was required to remove the Cadaghi tree. The Applicant supported its argument using these words:

Cadaghi, in most council areas, are considered a pest and not suitable for close residential areas. Maryborough Council a few years back removed 15 to 20 small Cadaghi in Neptune Street, outside the hockey grounds because they were a major problem with leaves et cetera to residence across the street (30 m).

  1. [28]
    The Applicant did not produce any evidence from the Council to support its argument.

Other information to assist the Tribunal

  1. [29]
    The Applicant supplemented the Application with extensive material. The material was added to assist the Tribunal in relation to a range of issues, including whether the Cadaghi tree:
    1. (a)
      contributes to the local ecosystem and biodiversity;
    2. (b)
      contributes to the natural landscape and the scenic value of the land or locality;
    3. (c)
      contributes to public amenity;
    4. (d)
      contributes to the amenity of the land on which it is situated; and
    5. (e)
      has an impact on soil stability.
  2. [30]
    The material also addressed:
    1. (a)
      whether there are any risks associated with the Cadaghi tree in the event of a cyclone or other extreme weather event;
    2. (b)
      whether there is any likely impact on the Cadaghi tree if it is pruned;
    3. (c)
      the type of species the Cadaghi tree is; and
    4. (d)
      whether the species of tree is a pest or weed.
  3. [31]
    Almost exclusively, the Applicant’s material dealt with the Cadaghi tree, but there was some further information that did relate to the Leopard tree.
  4. [32]
    The Applicant argued that the Cadaghi tree:
    1. (a)
      ‘degrades the local ecosystem and biodiversity because it is on a small residential block of 809 m² in a high density residential area’;[24]
    2. (b)
      ‘destroys the local landscape and damages neighbours’ property and health’;[25]
    3. (c)
      ‘contributes nothing to public or private amenity. It creates conflict and reduces property values for neighbours’;[26]
    4. (d)
      ‘is a 30 m high weed, as described by Brisbane City Council, and intrudes on all neighbours’ properties and lifestyle’;[27] and
    5. (e)
      ‘produces large quantities of mould from their pollen, they drop large quantities of large hard leaves and large quantities of gum nuts – they also drop numerous branches, attract flying foxes, attract large quantities of beetles and the understorey [sic] is a fire hazard’.[28]
  5. [33]
    The Applicant further alleged that the Respondent’s trees inhibit the natural flow of rainwater and create a ‘great risk of property damage to our building from falling branches and the tree itself during storms and cyclones’.[29]
  6. [34]
    The Applicant argued that the only solution is to remove the Cadaghi tree because ‘there will be no effect if the tree is pruned as the roots, pollens, leaves, gum nuts, flying foxes et cetera will still be active and the tree will continue to grow’.[30] The Applicant argued that ‘other large trees’[31] must also be totally removed.

Sewerage blockage

  1. [35]
    In the Application, and supporting material, the Applicant identified that there had been a sewerage blockage, and that raw sewage from both properties did flood the Applicant’s yard and building.[32] In the circumstances, the Applicant stated that it could not comply with its lawful requirements ‘to provide a safe and healthy environment for [its] tenants’.[33] Because of the situation that exists, the Applicant stated that it ‘will continue to incur considerable expense, clearing sewerage lines, repairing sewerage lines, replacing rusted gutters and roof damage et cetera, unless drastic remedial action is taken’.[34]
  2. [36]
    The Applicant argued that the Respondent is responsible for the damage caused by his trees.[35] The Applicant also stated that ‘as the combined sewerage line is in number 14’s property, we have no control over its use or maintenance’.[36]
  3. [37]
    In support of its argument that the sewerage blockage was created as a result of the infiltration of the sewerage line by the Respondent’s trees, the Applicant produced a document headed ‘Fraser Coast Regional Council, Optical Observation (camera) of Sewerage line at 12 March Lane, Maryborough on 16/1/2018 at 0930am’ (‘the Sewer Line Observation Document’).[37] The author of the Sewer Line Observation Document was not identified, nor was it authenticated. It was not supported by source documentation, or a statement by an independent witness, to verify its accuracy. The Sewer Line Observation Document was supplemented by two diagrammatic plans of the combined sewer line between the Applicant’s property and the Respondent’s property. The Applicant attributed the drafting of the first diagrammatic plan[38] to the Council. The Applicant did not identify the original source of the second diagrammatic plan,[39] however upon it, the Applicant included handwritten notes to identify the approximate location of ‘the Cadaghi tree’ and ‘the Leopard tree’, which were described as the ‘offending trees’. The Applicant stated[40] that the Sewer Line Observation Document reflects the results of an optical observation of the sewer line, conducted on 16 January 2018. The observation commenced from an insertion point on its property 6.6 metres from the dividing fence between the Applicant’s property and the Respondent’s property. The information was supported by reference to the diagrammatic plans. By reference to the plans, the sewer line runs within the Respondent’s property close to, and parallel to, the dividing fence. The notes on the Sewer Line Observation Document are stated to reflect the optical observation of the camera. The results are said to indicate the existence of ‘bad tree roots’ at 7.22 metres, 8.74 metres, 14 metres, 33.87 metres, 34 metres, and 37 metres from the insertion point on the Applicant’s property.
  4. [38]
    The Applicant included that damage was ‘very obvious’ when the Council inspected the sewerage line. Accordingly, the Applicant seeks an order of the Tribunal that the Respondent pay the cost of installing a sewer line from its property to the Council main line in March Lane, at a cost of approximately $7,200.00.[41] Alternatively, the Applicant sought an order of the Tribunal that the Council be ordered to pay the cost. There is no suggestion that the Applicant has put the Council on notice of this proposed order or served a copy of the Application on the Council. The Applicant seeks an ex parte order against the Council. The Applicant identified the Council as blameworthy given that its predecessor chose to minimise installation costs by creating a shared sewer line, and then in 2016, the Council decided to ‘abdicate’ its responsibility with respect to the shared sewer line. In doing so, the Applicant appears to allege that the Council has created ‘a public health issue’.[42]
  5. [39]
    The Applicant produced a quotation from Murray Barnett Plumbing dated 8 February 2018 for the installation of a new house drain from the back of the units to the main sewer line using 100 mm PVC pipe. The quote is in the sum of $7,269.90.[43] The Applicant asks the Tribunal to make an order against the Respondent for that sum, and other amounts. The Applicant claims a total sum of $3,335.90 as direct costs incurred relevant to the blockage of the sewer drain.[44] Therefore, the total sum claimed by the Applicant relevant to ingress to the sewer drain amounts to $10,598.80.

Damage to gutters

  1. [40]
    The Applicant seeks an order of the Tribunal for the cost of replacing back gutters, alleged to have been damaged by the Respondent’s trees, in the sum of $2,200.00.[45] Therefore, the total amount sought by the Applicant is $12,798.80.[46]

Fire hazard and pest infestation

  1. [41]
    The Applicant argued that ‘the ground and understory areas of the Cadaghi is a fire hazard and breaches the Plague Prevention Regulations of 1958, by affording harbourage and shelter to rats. The Applicant also argued breaches of the Fraser Coast Regional Council Local Law Number 3 (Community and Environmental Management) 2011 (Qld) (‘Fraser Coast Regional Council Local Law Number 3’), by seriously affecting the visual amenity of the allotment and surrounding areas with overgrown vegetation, or an accumulation of piles of fallen, dead or dying vegetation, such as lawn clippings, palm frond branches, compost et cetera, and is likely to harbour reptiles’.[47]
  2. [42]
    The Applicant says that an order of the Tribunal is necessary because despite having the power to do so, the Council refused to act, after inspecting the ‘problem’.[48]

Cadaghi ‘as an environmental weed’

  1. [43]
    The Applicant submitted that Cadaghis are regarded as an environmental weed, using this terminology:

Cadaghi are regarded as an environmental weed in South East Queensland because, they grow to a height of 30 m, produce Black Sortie, fungus, attract flying foxes and are attacked by monolepta beetles and scale insects making them a plant unsuitable as a garden plant. They also kill native bees.[49]

  1. [44]
    The Applicant noted the source of the information as the Brisbane City Council. In part, the terminology does reflect information provided by the Applicant that appears to have been drawn from the website of the Brisbane City Council, but predominantly the information is drawn from an article prepared by an author,[50] in 2004, who had claimed copyright in relation to the content. The material seems to have been prepared by the author in relation to a desire to advocate for a certain course of action in relation to a location that the author described as ‘our beautiful valley’. The credentials of the author are not identified.

The Response

  1. [45]
    The Respondent opposes the Application and denied much of the alleged facts upon which the Application was based. The Respondent asks the Tribunal to dismiss the Application.[51] The Respondent identified the lack of independent evidence produced by the Applicant.[52]
  1. [46]
    The Respondent says that he has ‘been diligent, reasonable and very proactive in regards to trying to work with the Applicant, ensuring that no trees or vegetation impact or interfere with the Applicant’s property’.[53] The Respondent expressed a view that the Applicant has made unreasonable requests.[54] In part, the Respondent expressed this view because issues in relation to mould, rust, water damage, blockages et cetera are not issues that he has experienced on his property.[55] The Respondent suggested that the Applicant has failed to maintain its property appropriately by failing to clean out gutters or maintain the roofing.[56] The Respondent alleges that the Applicant has not undertaken repairs or maintenance to the roof of its property during the past 16 years, except in relation to the replacement of some sheeting prior to the Respondent arriving at his property in 2003.[57]
  2. [47]
    The Respondent produced evidence and information about the maintenance of his trees. He produced invoices for work carried out by Peter Gibson of ‘Anchor Tree Lopping’, most recently including the lopping of the tree ‘back significantly to 4.5 metres from the boundary fence in 2017’.[58] The Respondent stated that he undertook significant tree lopping procedures in 2009 and 2017.[59] The Respondent also said that ‘all shrubs and palms along the boundary are trimmed back to the fence line on a regular basis’.[60]
  3. [48]
    The Respondent disagrees that there are overhanging branches. The Respondent stated that his consultant, Mr Peter Gibson of ‘Anchor Tree Lopping’ lopped the Cadaghi tree back significantly to 4.5 metres from the boundary fence in 2017.[61] He further stated that his backyard shares boundaries with three adjoining properties, other than the property owned by the Applicant, and that each of the adjoining properties have overhanging foliage and trees in their property. The Respondent included the following commentary:

Two properties in particular have mature trees larger in size than our Poinciana Tree. These trees overhanging our property by 4 to 5 m over the back fence and behind our garage. They are of no concern to us as they provide shade and leaves for mulch. Any observation of our backyard from (the Applicant’s property) would assume that all of these trees, palms and foliage are actually part of our so-called ‘Rain Forest’, when in fact much of it is overhanging from the three properties adjacent to my backyard’.[62]

  1. [49]
    The Respondent provided evidence about other trees and vegetation in the local area including a tree on the Applicant’s property. The Respondent used these words:

The owner (being a reference to the Applicant) has a mature Macadamia Tree in its property, which is closer in proximity to their own old clay sewer pipes serving the 3 flats on the property than our trees. It also overhangs other adjoining properties at the rear of the property as it is located in the back corner of the yard. There is also a mature flowering tree in the front yard of the property which exposed large root systems when Wide Bay Order installed a ‘Jump Up’ connection to No 12 March Lane recently, so a sewer line could be connected in the future. This tree could be potentially cause some blockages to our shared line, just like any nearby trees, like the large pine tree directly across the road, but I’m not suggesting that their tree is the cause. The identified small blockages are located outside our property boundaries and as Wide Bay Water staff stated, ‘Anything outside the property boundaries are our responsibility’. The rear fence of property No 12 has two mature trees from the neighbour overhanging the back fence by several metres: namely a Silky Oak and a Jacaranda. Both these trees produce copious blossom, flowers and pollen during the spring months. The back fence is also covered with overhanging creepers.[63]

  1. [50]
    The Respondent disagreed with the Applicant’s allegations in relation to the Cadaghi tree clogging the sewerage line or causing damage to the guttering. He provided this statement:

Both properties share the main sewer line which is located on my side at 14 March Lane. In the past 15 years I have never had a toilet blockage caused by the tree in the backyard or by any other cause. All our sewer, laundry, kitchen, bathroom, plus all stormwater pipes, were replaced with PVC by the previous owner.

I, as the respondent, have only experienced one blockage in the sewer lines, shortly after I arrived in 2002, when the main sewer line was blocked by children’s disposable nappies placed down the toilet of Flat No 3 by the tenant at the time. The cause of the blockage was disclosed to me by the plumber and the cost borne by the Maryborough City Council at the time. This was the first time I was made aware that I ‘shared’ a sewer line with number 12 March Lane. The Cadaghi Tree trunk base in my backyard is measured at 16 m to the fence adjoining the toilet in Flat No 3 and the plumbing is a further 2 m away under the building.

Any suggestion that leaves from the Cadaghi tree are causing damage to guttering and valley gutters on the 12 March Lane property is not substantiated. Blocked gutters et cetera are the responsibility of the owner, just as I clean out my own gutters, regardless of where any leaves come from. Roofing of No 12 is in a very poor and rusted condition and has been so since I arrived in 2002.

  1. [51]
    The Respondent referred to an inspection by staff of Wide Bay Water on 16 January 2018. That is, in relation to what the Applicant had described as an inspection ‘by the Council’ which led to the preparation of the Sewer Line Observation Document. The Respondent stated that he spoke with the Supervisor of Wide Bay Water on the day after the inspection who stated, by reference to the inspection, ‘There are a few small roots but nothing to worry about’, and ‘The guy next door said he has some issues with his sewerage pipes. We run the camera down and there’s no issues, only minimal’.[64] The Respondent gave evidence that Wide Bay Water did not raise any issues of concern.[65]
  2. [52]
    The Respondent disagreed with the statements of the Applicant about the method of connection of services to the shared sewer line. The Respondent provided the following statements:

My sewerage, laundry, kitchen and bathroom pipes are all PVC pipes and are connected ‘downstream’ from the Toilet of Flat No 3 via the sewer main located on my property. That toilet in No 12 (being a reference to the Applicant’s property) has recently been redirected. All the pipe joints are angled towards the street and also have to slope ‘downwards’ from the highest points, located in No 12, to comply with regulations. My toilet is the last connection before going out to the street, and if it was to be blocked, raw sewerage would also come out through my two Galley Traps, Laundry, Toilet and Bathroom, as they are all connected. This has never happened. It is therefore impossible for any of my raw sewage to ‘backup’ into the pipes and flood No 12. It can only be a local issue at No 12.[66]

  1. [53]
    The Respondent provided information about the potential for creeping foliage to create minor blockages in the sewer line. The Respondent used the following words:

The overhanging creeping foliage on the fence near our toilet, claimed to be ‘ours’ by [the applicant] came from 2 large pots belonging to the tenant of Flat No 3. This overgrown foliage, along with all the offending roots, were located only 700 mm horizontally from one of the identified main sewer minor blockages, and was cooperatively removed on 2 March 2018 by myself, the tenant of Flat number three and assisted by [a neighbour] from number 16 March Lane.[67]

There are no trees or shrubs along that section of the shared sewer line in No 14 where two minor blockages were identified by [Wide Bay Water], only the ‘overgrown ‘creeper belonging to the Flat No 3 Tenant of No 12.[68]

  1. [54]
    The Respondent produced letters and photographs to support his statements in this regard. The Respondent pointed to the lack of evidence produced by the Applicant to show that the roots from the Respondent’s trees have caused damage to the Applicant’s old clay pipes in the Applicant’s property. The Respondent identified that those pipes that are on his property had been replaced with PVC piping.
  2. [55]
    The Respondent raised concerns as to the acceptability of the Sewer Line Observation Document as evidence, on the basis that by reference to the layout, format and typeface it appears to have been prepared by the Applicant. The Respondent identifies that it does not appear to have been prepared by anyone at the Council or Wide Bay Water. It does not include a letterhead and it is not stated as prepared by an officer of the Council or Wide Bay Water. It does not bear a signature. The Respondent says that, in reference to the Sewer Line Observation Document, ‘I therefore consider it unofficial and unacceptable as evidence. It could have been prepared by anyone.’[69]
  3. [56]
    The Respondent stated that he has never wanted to create a ‘Rainforest Effect’ but did state that ‘the [Cadaghi] tree provides some shade to the rear of the house in summer and the tree and the remainder of the garden help to provide habitat for native birds, which it does’.[70]
  4. [57]
    The Respondent disagreed with the Applicant’s statement that their properties are in a ‘high density residential area’. The Respondent provided evidence that the properties are in a ‘medium density residential area’.[71]
  5. [58]
    The Respondent disagreed that the trees represent a danger from falling onto the property of the Applicant. During the 16 years that he has lived in the property, there have been severe storms and cyclonic activity and the trees and garden have ‘stood fast, except for a broken branch from the Poinciana Tree several years ago’.[72]
  6. [59]
    The Respondent stated that he has not had any incidents with Flying Foxes, and he pointed to the lack of evidence provided by the Applicant to support its allegations.[73]
  7. [60]
    On page 19 of the material provided to the Tribunal by the Respondent, as a supplement to his statement dated 3 June 2019, the Respondent has included a statement prepared by Mr Peter Gibson of Anchor Tree Lopping dated 17 December 2018. Mr Gibson states the following:

This is a formal letter of assessment in relation to a corymbia torelliana known as a cadaghi tree. This tree is native to the rainforests of northern Queensland. It is located in the central backyard of property 14 March Lane Maryborough 4650. We assessed the tree for trimming as requested by owner and we believe this tree does not require it to be done. This tree was last pruned on the 19th of September 2017. When work was carried out all cuts were made to Australian standards which has prevented from encroaching on the neighbouring property. At this current time there is only one small limb within the two metre buffer inside 14 March Lane, the tree is not protruding over the fence line of property 12 March Lane. Removing that one limb will not make any difference to the current circumstances. If down the track the tree does require trimming the approximate price will be $440.

The Assessor’s Report

  1. [61]
    In accordance with standard practice, the Tribunal requested a qualified tree assessor to undertake to gather facts, observations and other simple tree tests, about the trees and alleged tree damage, and obstructions et cetera, and provide expert recommendations to help the Tribunal to:
    1. (a)
      determine if the dispute is within the jurisdiction of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“NDA”);
    2. (b)
      determine if the orders sought are appropriate with respect to the NDA; and
    3. (c)
      determine and specify appropriate actions, if any, that may lead to the efficient and fair resolution of the dispute.
  2. [62]
    Mr David Roberts was the appointed Assessor (‘the Assessor’). The Tribunal accepts Mr Roberts as an expert in his field and accepts his tree assessment report dated 24 November 2018 (“the Tree Assessment Report”) as an expert report.
  3. [63]
    The Tree Assessment report contains the following information, observations, discussions, conclusions and recommendations:

Relevant Background Information

  1. (a)
    The Applicant is the registered owner of the property at 12 March Lane, Maryborough. The property is used as a rental premises for multiple flats that are currently occupied. The Applicant undertakes maintenance of the property. The Applicant stated at the time of the property purchase in 1981, the vegetation on the Respondent’s property did not exist.[74]
  2. (b)
    Both parties were present for the inspection that occurred on 23 November 2018.[75]

Jurisdictional Checks

  1. (c)
    The vegetation is considered a tree as defined in the NDA.

The Applicant’s Concerns

  1. (d)
    The vegetation of concern consisted of a number of different species, but the Applicant stated that of primary concern is the large Cadaghi tree, and a Leopard tree.

The Status of Cadaghi Trees

  1. (e)
    Cadaghi trees  have been used extensively by local government throughout the East Coast of Australia. The tree is not a declared weed in Queensland although it is viewed by some local government authorities as being an undesirable species due to colonisation potential within bushland and the tree is generally viewed as being messy.

Root ingress into the Applicant’s land

  1. [64]
    The Assessor was not able to view, or identify, root ingress into a shared sewer pipe between the properties. While no excavation was undertaken, and no open areas were available to inspect, it is fair to assume that given the reactive nature of Maryborough soils, the age and type of pipes, that avenues for root ingress exist. The Assessor was not able to determine whether the roots contributed to the pipe failure.

Excessive Leaf and Debris Drop

  1. [65]
    The leaf drop of the Cadaghi tree is consistent with the species. Regrowth at the pruning point has occurred. This needs to be managed on an ongoing basis. The tree is large, and the canopy can hold a significant amount of leaf. Impacts on the Applicant’s land would be most obviously felt during periods of northerly winds, which can occur for weeks during the summer months. The same applies to pollen and seed drop. Cadaghi tree pollen is not known to be allergy causing. Leopard trees are deciduous, and the tree is not considered a large specimen. The vegetation is located on the shared east west boundary and the predominant winds for the area are south-easterly.[76]

Excessive Shading

  1. [66]
    The vegetation on the Respondent’s property would provide some shade over the Applicant’s property which includes a vegetable bed, clothesline and dwelling. The shading would not be welcome in the winter months but would provide cooling benefits in the summer months. There is other vegetation within the Applicant’s property and within another adjoining property that would contribute to shading. The shading is not considered excessive.

Risk of Tree Failure

  1. [67]
    The Cadaghi tree is in good health without defects within the root crown and trunk. All branch attachments appear to be sound and the tree represents a low risk of failure in normal conditions.

Consideration of sections 70-75 NDA matters

  1. [68]
    The Applicant’s property contains a Macadamia tree that also contributes to leaf and nut drop. The Applicant’s property does not contain a gutter guard type product and, as a result, leaf debris has accumulated within the gutters and they have rusted to the point where replacement is needed. Sections of the Applicant’s property are in disrepair, with spaces between walls and roofing sheeting evident that would allow debris to be blown into the building. These factors contribute to the occurrence of mould within, and on, the Applicant’s property.
  2. [69]
    The trees add to the amenity of the area, provide habitat and a food source for native fauna and as well as providing other natural benefits associated with the trees. The vegetation has been planted as part of a formal landscape.

Conclusions and Recommendations

  1. [70]
    An independent plumber may be able to assess and recommend actions regarding root tree ingress into the sewer pipes.
  2. [71]
    The Respondent’s vegetation does, at times, drop onto the Applicant’s property and this presents a problem periodically, but at other times the tenants could enjoy the benefits that this vegetation provides.
  3. [72]
    The Applicant has failed to maintain its building, which has contributed to damaged structures. Consequently, the impact of the Respondent’s trees on the Applicant’s land is not substantial, ongoing and unreasonable.
  4. [73]
    The Respondent has indicated that he is prepared to undertake an annual pruning of the Cadaghi tree to a point approximately 2 metres from the shared boundary line, which is considered a reasonable compromise to mitigate further impacts of this tree on the Applicant’s land. The work needs to be undertaken by a qualified contractor (minimum Australian Qualified Framework (‘AQF’) level 3 arborist) with appropriate insurances. The recommendation is that the Respondent continue to undertake an annual canopy reduction prune of the Cadaghi tree to approximately 2 metres from the shared boundary line of 12 March Lane. The pruning work is to be undertaken by a qualified person.

Applicant’s Evidence, and Submissions, at the Tribunal Hearing

  1. [74]
    Mr Schubert, a director of the Applicant, gave oral evidence at the Tribunal hearing. He identified three trees of primary concern, being the Cadaghi tree, the Leopard tree and the Poinciana tree. Mr Schubert said that in addition to the offending three trees there are other trees on the Respondent’s property that are creating problems in terms of the sewer. He provided evidence of the inspection by representatives of Wide Bay Water on 16 January 2018, noting that a camera was run through the sewer system, which identified ‘the existence of tree roots roughly every three feet which varied from mild to severe’. Mr Schubert gave evidence of a blockage on 5 May 2019, which he said was identified as being near the front boundary of the Respondent’s property. He said that the Council attended, free of charge, to clear the blockage.
  2. [75]
    The Applicant presented its case on the basis that removal of the three ‘offending trees’ will go some way to alleviating the blockage problem, but the Respondent now has other trees that are contributing to the problem. Mr Schubert said that representatives of Wide Bay Water were not prepared to provide evidence or provide a statement. Mr Schubert did not explain his failure to subpoena. The Applicant replaced previous pipes on 15 September 2017, but Mr Schubert gave evidence that despite the introduction of PVC pipes at that time, the blockage continued as evidenced by the fact that there was a blockage on 21 December 2017 and then in 2019.
  3. [76]
    Mr Schubert gave evidence that the problem of ingress to the sewer line would likely be solved, or at least substantially remediated, by the introduction of properly installed PVC piping for the length of the sewer line to the point where it connects to the main sewer. That is, the introduction of PVC piping throughout all the Applicant’s property and all the Respondent’s property. Now, as far as the Applicant is aware, the Respondent still uses, predominantly, the original or older clay piping. Mr Schubert said that PVC piping comes in a link of 6 metres as opposed to clay piping, which is joined at every three feet. The ingress occurs primarily at the junction points. The evidence of the Applicant was that if the sewer lines in the Applicant’s and the Respondent’s properties were replaced with PVC piping, properly laid and properly adjusted, then it is very unlikely that there would be a problem associated with the ingress of tree roots. Mr Schubert said it was difficult to state which tree infiltrates the sewer line.
  4. [77]
    In evidence, Mr Schubert suggested that there are three potential alternative solutions to the problem. The first is to remove all the Respondent’s trees. The second is to replace the existing shared sewer pipes with more robust PVC pipes. The third is to bypass the problem by introducing new piping to exclusively service the Applicant’s property, effectively creating a new sewer line. Unsurprisingly, Mr Schubert urged the Tribunal to adopt the first alternative. Mr Schubert said that if the Tribunal was to adopt the third alternative the cost would be approximately $7,500.00. Whilst the Applicant says that any of these solutions would primarily solve the problem, there is a further concern that in any event if there is a bypass of the sewer line, the ingress to the sewer line on the neighbour’s property at number 14 owned by Mr McMillan-Kay will continue, which could lead to noxious smells or overflow sewerage. Mr Schubert said that his tenants have experienced backflow problems of sewage. He expressed an opinion that all three alternatives would effectively solve the backflow problem experienced by the Applicant. However if the third option – that is the complete bypass – was implemented, that still leaves a potential problem in that, if the Respondent maintains the trees and the existing clay pipes, there is likely to be an ingress, which if not treated, would create smells or potentially an overflow of sewage from the Respondent’s property onto the Applicant’s property.
  5. [78]
    While providing evidence, Mr Schubert referred the Tribunal to a photograph dated 22 April 2019, contained in the Respondent’s material, which showed the extent of leaf foliage. Mr Schubert also referred to photographs in the Applicant’s material that demonstrates the existence of mould. Mr Schubert gave evidence that the effect of the excessive leaf drop is to potentially cause mould (because of the pollen) but otherwise it does cause inconvenience to the Applicant’s tenants. In relation to the issue of excessive leaf drop, the Applicant’s argument is that the recommendations of the Assessor to prune the tree does not change the issue of concern; it simply minimises it. Mr Schubert said that the Cadaghi tree is too large for its current location. For the moment at least, Mr Schubert said that the Leopard tree and the Poinciana tree are not of concern in this regard. Shading can be a problem until midday and due to excessive leaf droppage, most gutters on the Applicant’s property are blocked.
  6. [79]
    In evidence, Mr Schubert disputed the conclusions of the Assessor. Mr Schubert expressed a view that merely pruning the trees to a point approximately 2 metres from the shed boundary is insufficient to avoid the issue of leaf droppage. From his own observations, Mr Schubert has identified that such trees can create problems from 50 to 75 metres away, as evidenced by removal of trees in Maryborough and issues identified in Hervey Bay. However, Mr Schubert conceded that the Applicant does not have an expert report to conflict the Assessor’s report or conclusions.
  7. [80]
    In closing arguments, Mr Schubert urged the Tribunal to consider a letter from the Maryborough City Council dated 28 August 1987 referring to the Plague Prevention Regulations of 1958,[77] which specifically relates to rats. Mr Schubert said that the significance of this Regulation is that such an infestation might occur on the Respondent’s property, given the vegetation growth. Mr Schubert also referred to section 14 of the Fraser Coast Regional Council Local Law Number 3that allows the Council to act in relation to a build-up of accumulation of piles of vegetation.

Respondent’s Evidence, and Submissions, at the Tribunal Hearing

  1. [81]
    Mr McMillan-Kay said that in the time that he has owned, and occupied, his home since 2003, there have only been two blockages: one in 2004 and the other in 2019. In neither case, was there mention of tree roots causing the problem. Mr McMillan-Kay cannot say that there is no evidence of infiltration. But there are alternative hypotheses, such as the use of ‘wet wipes’ that may have caused the blockage. Mr McMillan-Kay says there is no specific evidence linking the existence of trees on his property with tree root damage to the sewer system. There is no specific evidence of tree root damage at all, other than by such a reference on one invoice, which was provided by the Applicant dated 2 July 2017. Mr Schubert observed that the Tree Assessment Report does indicate that the Assessor was not able to view, or identify, root ingress into a shared sewer pipe between the properties. No excavation was undertaken, and no open areas were available to inspect.
  2. [82]
    In evidence, Mr McMillan-Kay said that, at the fence line, his property is in fact 25 centimetres lower than the property owned by the Applicant. Mr McMillan-Kay said that there is support for his suggestion by reference to the contour plan, in his supplementary material,[78] which he said was by the Council.
  3. [83]
    Mr McMillan-Kay said that given the predominant breeze from the south-east, any leaf droppage is primarily on to his own property. Otherwise, depending on the breeze there are leaves that are brought onto his property and, he conceded, some of the leaves are from his property. He said that Mr Schubert also receives leaves from his own trees (including a large Macadamia tree) as well as leaves from other properties.
  4. [84]
    Mr McMillan-Kay acknowledges that there may have been some gum nuts that have dropped onto the Applicant’s property, but that is just a fact of living side-by-side. In that regard, Mr McMillan-Kay said that he deals with such issues by ‘cleaning them up’. Mr McMillan-Kay says that there is no evidence that mould was from his trees. Mr McMillan-Kay said that he does not suffer from mould. He said that a gutter guard works perfectly to avoid any issues with leaves. Mr McMillan-Kay says that any damage exhibited on the roof of the Applicant’s property is a result of the Applicant’s failure to maintain the roof, or repair rusted panels, but is not something created by his trees. He also said that the shade created by the trees provides positive benefits to living on his property.
  5. [85]
    Mr McMillan-Kay referred the Tribunal to his statement dated 3 June 2019, and to page 19 of his material, which is the report of Anchor Tree Lopping (Peter Gibson) dated 17 December 2018. Mr Gibson states says that the Cadaghi tree was pruned on 19 September 2017 and further pruning is not currently required.
  6. [86]
    Mr McMillan-Kay submitted that the Applicant has not supported his contentions with proof. He said that he does not have rats on his property and there is no risk of raw sewage backing up onto the Applicant’s property. Even if there was, it would not flow up the slope to the Applicant’s property from the Respondent’s property.

The Tribunal’s Jurisdiction

  1. [87]
    The relevant Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’).
  2. [88]
    The Tribunal finds that:
    1. (a)
      The Trees meet the definition in section 45 of the NDA;
    2. (b)
      The Trees are on land described in sections 42(1) and (2) of the NDA and the exceptions in sections 42(3) and (4) do not apply;
    3. (c)
      The Trees are situated on the tree-keeper's land, meeting the requirement contained in section 47 of the NDA;
    4. (d)
      The Respondents are the tree-keepers, which falls within the definition in section 48 of the NDA; and 
    5. (e)
      The Applicant is the Respondent’s neighbour and is the freehold owner of the neighbouring land, meeting the requirement contained in section 49 of the NDA.
  3. [89]
    Having considered section 42 of the NDA, the Tribunal is satisfied that the Trees are trees to which chapter 3 of the NDA does apply. The Tribunal determines that it has jurisdiction to hear and decide any matter in relation to the Trees in which it is alleged that, as at the date of the Application to the Queensland Civil Administrative Tribunal, land is affected by the Trees.[79]

Tree-keeper’s responsibilities

  1. [90]
    A tree-keeper, which relevant to this case is the Respondent, is responsible for ensuring that the tree does not cause—
    1. (a)
      Serious injury to a person; or
    2. (b)
      Serious damage to a person’s land or any property on a person’s land; or
    3. (c)
      Substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.[80]

Removal of a tree

  1. [91]
    The NDA states that 'a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved'.[81]

The Tribunal’s Conclusions

  1. [92]
    The primary concern for the Tribunal in relation to the Applicant’s case is that the Applicant’s submissions are largely unsupported by credible evidence. Certainly, the Applicant’s case is largely unsupported by independent evidence. From the perspective of the Applicant, its evidentiary shortcomings are exacerbated in that the key independent evidence, being that provided to the Tribunal by the Tree Assessor, is against the arguments promoted by the Applicant. The Tribunal notes that the Applicant did not call, or attempt to call, expert evidence to contradict the expert evidence provided by the Assessor.
  2. [93]
    The Tribunal notes that the Respondent raised several issues challenging the Applicant’s case, and that many of the issues raised by the Respondent were not considered by the Applicant, or at least, the Applicant did not provide evidence to counter the suggestions. One key issue in that regard is the suggestion made by the Respondent that the Applicant has done little to maintain its property. While the Applicant has provided some evidence of repair and maintenance work to its property, for example, in relation to the replacement of some guttering, the allegation by the Respondent that the Applicant has failed to otherwise maintain the roof of its property over the past 16 years was not met by the Applicant with evidence to the contrary. The Tribunal rejects the claims by the Applicant for a cost order to reimburse it for replacement of gutters.
  3. [94]
    The Applicant was unable to use any independent evidence to support allegations made relating to the alleged ingress of tree roots by the Respondent’s trees into the shared sewer line. On the Applicant’s material, the Applicant concedes that it cannot identify a particular tree, or trees, that may be responsible for the alleged ingress.[82] The Applicant did not produce evidence to counter the suggestions made by the Respondent that one of the Applicant’s tenants did, at one stage, potentially contribute to the problem by growing ‘creepers’.[83] At the heart of the Applicant’s case, are the findings of an inspection undertaken by Wide Bay Water on 16 January 2018. The Applicant says that inspection ‘proves’ the ingress of tree roots, which at times are severe and cause blockage to the sewer line. The Applicant supports its case by reference to the Sewer Line Observation Document. However, the Tribunal notes that the author of the document is not disclosed. The author of the Sewer Line Observation Document was not identified, but more importantly, the information contained within it was not authenticated or supported by source documentation to verify its accuracy. The Tribunal notes that the Applicant did not obtain evidence from a representative of Wide Bay Water or the Council. The Applicant could have invoked procedures to compel attendance or the production of documents but chose not to do so. Accordingly, the evidence presented by the Applicant in relation to the alleged ingress of tree roots into the shared sewer line is anecdotal hearsay evidence that is not supported by independent evidence. It is not evidence that is supported by the expert evidence provided by the Assessor.
  4. [95]
    The Tribunal rejects the suggestion by the Applicant that its property is at risk of serious injury or damage as a result of raw sewage backing up onto the Applicant’s property from the Respondent’s property. The evidence presented by the Applicant is not verified through independent sources.
  5. [96]
    The Tribunal rejects the Applicant’s suggestions that the Respondent’s trees are at risk of failure.
  6. [97]
    The Tribunal rejects the Applicant’s suggestions that the Respondent’s Cadaghi tree overhangs the Applicant’s property. The Assessor identified that the Cadaghi tree had been recently pruned to 2 metres from the fence line[84] and the Respondent’s consultant confirmed that he had pruned it away from the fence line, to an even greater extent.
  7. [98]
    The Applicant states that no consent or other authorisation from a government authority is needed to carry out work on the trees. It does not support that statement with any independent evidence.
  8. [99]
    The Applicant suggests that the Respondent has not taken any steps to stop or reduce interference. That statement is not consistent with the evidence. The evidence of the Respondent and the evidence contained in the Tree Assessment Report suggest clearly that the Respondent has regularly acted, as tree-keeper, to maintain his trees.
  9. [100]
    In relation to the matter of the sewer line, the Tribunal notes the age of the shared line. On one view of the facts, given its age, it is unsurprising that the line has or is likely to fail from time to time. That may be exacerbated by ingress of tree roots, but that has not been established by the Applicant. The Applicant’s case relates to the Tribunal acting in relation to the Respondent’s trees. If there is an issue between the Applicant and the Respondent in relation to the manner in which the combined house or sewer line is to be maintained and repaired, that is something that is, in the absence of proof that damage was created by trees, beyond the scope of the Tribunal. Given its findings, the Tribunal has no inherent power to make an order in relation to sharing arrangements, including the maintenance, repair or replacement of the shared sewer line.
  10. [101]
    The Applicant relies upon the Plague Prevention Regulations of 1958, which are no longer part of our law. The Applicant also relies upon the Fraser Coast Regional Council Local Law Number 3 which deals with overgrown allotments. That law does state that the responsible person must not permit, or allow, the allotment to become overgrown with vegetation to such an extent that in the opinion of an authorised person it seriously affects the visual amenity of the allotment or surrounding area, or is likely to attract or harbour reptiles. The evidence of the Applicant is that a representative of the Council did inspect the property but chose to take no action. The Tribunal is prepared to consider the Applicant’s case at its highest in that regard. It appears that the Applicant seeks an order of the Tribunal to compel performance by the Council or to undertake a judicial review or a merits review in relation to the authorised person’s decision not to act. That is not part of the Application. The Tribunal does note that the section referred to by the Applicant is part of the local law that deals with ‘overgrown and unsightly allotments’. There is no basis for suggesting that the visual amenity of the allotment or surrounding area is affected by vegetation. The Respondent’s property is certainly not unsightly; indeed, it is manicured, and there is no evidence to suggest that it does attract or harbour reptiles. The Tribunal has no inherent power to make an order to compel performance by a Council officer in relation to local laws, nor does it have inherent power to undertake a judicial review or a merits review in relation to such matters.
  11. [102]
    The Applicant alleges that the Respondent’s trees have caused, and continue to cause, serious injury. The argument in this regard appears to relate primarily to issues around mould. The Tribunal acknowledges that the Applicant has produced some evidence as to the existence of mould on its property.[85] The Tribunal does not accept the Applicant’s evidence that any mould on the Applicant’s property was caused as a result of the Respondent’s trees. There is insufficient evidence, and no independent evidence, to support such a finding. It appears to the Tribunal that the Applicant’s concerns might be addressed by maintenance and cleaning. The Tribunal notes the evidence of the Respondent that no such issues have arisen in relation to his property. The Applicant has not produced any independent evidence to support his allegations. The Applicant says that Mr Schubert and his wife have both suffered ill health, but the Applicant has not produced any medical evidence to support the claim. The Tribunal rejects the Applicant’s suggestion that the trees have caused serious injury.
  12. [103]
    The Applicant has not produced any evidence from its tenants, who are said to have suffered as a result of the Respondent’s trees. The Tribunal gives little weight to unsubstantiated and unverified statements in this regard.
  13. [104]
    The Applicant does argue that its property is affected by leaf droppage and gum nuts that fall into its yard. The Tribunal has consistently found that the droppage of vegetation in this regard is a fact of life in suburban neighbourhoods and not of itself cause for the intervention of the Tribunal by way of an order.[86] The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree. The Respondent has raised issues in relation to the vegetation that emanates from the Respondent’s own trees, particularly the Macadamia tree, and the trees of adjoining neighbours. Primarily, the Applicant has not dealt with those allegations by providing independent evidence to support its arguments.
  14. [105]
    At the Tribunal hearing, the Applicant raised the issue of shading, but did not support the arguments with evidence other than of a basic nature, contained in its material. The Tribunal notes that the Applicant did not raise this issue in the Application. Whether the obstruction existed at the time the Applicant took possession of its land is relevant only to a view, not to sunlight.[87] The Tribunal determines that any shading from the Respondent’s trees on to the Applicant’s property is insignificant and is not sufficient to warrant the intervention of the Tribunal by making of an order.
  15. [106]
    At the Tribunal hearing, and when speaking with the Assessor, the Applicant primarily raised concerns in relation to the Respondent’s Cadaghi tree and the Respondent’s Leopard tree. The Tribunal notes that the Applicant identified the Leopard tree is something which has the potential to create future problems. However, based on the evidence, there is nothing to suggest that the Leopard tree is of immediate concern. The Cadaghi tree is more advanced and primarily the Applicant’s arguments related to what the Tribunal should do in relation to that tree. While the Applicant supplemented the Application with extensive material, it was lacking in substance and independent verification. The Applicant relied upon some information from the Brisbane City Council to the effect that the Cadaghi tree is an environmental weed. That view is not shared by the Assessor nor is there any suggestion that the Council have adopted such an approach. In any event, the legislation does not prescribe that the Tribunal must act in relation to vegetation that is categorised as a weed. Every matter must be dealt with on a case-by-case basis. In this instance, irrespective of its categorisation, the Tribunal primarily deals with the Cadaghi tree in terms of its effect on the Applicant, rather than its status as a weed or otherwise. The Tribunal is mindful of its statutory obligation to consider the type of tree, including whether the tree species is a pest or weed (however described) or falls under a similar category under an Act or a local law.[88]
  16. [107]
    The Applicant must accept responsibility for producing evidence to enable the Tribunal to make an appropriate order. While the Tribunal may inform itself as it sees fit, ultimately, decision-making in the Tribunal is evidence-based and the evidence presented by the Applicant in this case is of insufficient quality to persuade the Tribunal to make an order. The evidence contained in the Tree Assessment Report was clearly against the arguments maintained by the Applicant, yet it chose not to call the Assessor to challenge his evidence at the Tribunal hearing, or to produce expert evidence contrary to the evidence of the Assessor. On the evidence, the Tribunal is not satisfied that the Respondent’s trees have caused, is causing, or is likely within the next 12 months to cause, serious injury to any person or serious damage to the Applicant’s property or substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of its land.
  17. [108]
    The Tribunal does accept the findings of the Assessor in relation to risk, and there is no basis for the Tribunal to make an order to remedy, restrain or prevent serious damage.
  1. [109]
    The Tribunal will invoke its powers to make orders in relation to trees in appropriate circumstances. The Tribunal declines to make an order in this case as it is inappropriate to do so. The Tribunal is of the view that the Respondent has been, and is likely to continue to be, a responsible tree-keeper. The Tribunal accepts the statements by the Respondent as to the maintenance he has undertaken in the past in relation to his trees. The Tribunal accepts the commitment by the Respondent to maintain the trees into the future. That should not be the subject of an order as the Respondent is simply complying with his legal obligations. The Tribunal does note section 41(1) of the NDA, which provides that:

A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.

  1. [110]
    The Tribunal is not bound to make an order that reflects the recommendations of the Assessor in cases such as this.
  2. [111]
    The Tribunal does not consider it appropriate in relation to the Respondent’s trees to make orders to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the Applicant’s land or any property on the Applicant’s land, or substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land.
  3. [112]
    In coming to its conclusion, the Tribunal does consider those matters set out in sections 73, 74 and 75 of the NDA.
  4. [113]
    For these reasons, I dismiss the Application. Both parties claimed fees against the other. In the circumstances, the Tribunal elects not to make any monetary orders. The tribunal makes the following order:

The Application for a Tree Order is dismissed.

Footnotes

[1]  Tribunal hearing, 30 July 2019.

[2]  Letter from Fraser Coast Regional Council dated 5 September 2016 to the Applicant, produced as Annexure 15 to the Application.

[3]  Application dated 13 July 2018, Attachment 18.

[4]  Ibid page 4 [6].

[5]  Ibid page 5 [8]−[9].

[6]  Ibid page 6 [11].

[7]  Ibid [13].

[8]  Ibid page 7 [15].

[9]  Ibid page 9 [21].

[10]  Ibid page 7 [16].

[11]  Ibid page 8 [18].

[12]  Ibid page 7 [20].

[13]  Ibid page 9 [21].

[14]  Ibid, Attachment 1 [3].

[15]  Ibid page 9 [24], in oral evidence at the Tribunal hearing on 30 July 2019.

[16]  Application dated 13 July 2018, page 9 [23].

[17]  Ibid page 10 [25].

[18]  Ibid [27].

[19]  Ibid page 11 [29].

[20]  Ibid page 12 [32].

[21]  Ibid.

[22]  Ibid.

[23]  Ibid.

[24]  Ibid Attachment 17.

[25]  Ibid.

[26]  Ibid.

[27]  Ibid.

[28]  Ibid.

[29]  Ibid.

[30]  Ibid.

[31]  Ibid Attachment 18.

[32]  Ibid Attachment 1 [2].

[33]  Ibid.

[34]  Ibid.

[35]  Ibid.

[36]  Ibid Attachment 1 [3].

[37]  Ibid Attachment 5.

[38]  Ibid Attachment 6.

[39]  Ibid Attachment 7.

[40]  Tribunal hearing 30 July 2019.

[41]  Application dated 13 July 2018, Attachment 18.

[42]  Ibid Attachment 19 [2].

[43]  Ibid Attachment 22.

[44]  Ibid Attachment 20.

[45]  Ibid Attachment 18.

[46]  Ibid Attachment 20.

[47]  Ibid Attachment 1 [2], Attachment 13, Attachment 14.

[48]  Ibid Attachment 19.

[49]  Ibid Attachment 1 [2].

[50]  Name withheld.

[51]  Response dated 21 August 2018, page 4 [5].

[52]  Ibid Item 11.

[53]  Ibid page 4 [6].

[54]  Ibid.

[55]  Ibid.

[56]  Ibid Item 11.

[57]  Respondent's statement of evidence dated 3 June 2019, page 4 [2].

[58]  Response dated 21 August 2018, Item 8.

[59]  Ibid Item 16.

[60]  Ibid Item 20.

[61]  Ibid Item 8.

[62]  Ibid.

[63]  Ibid Item 18.

[64]  Ibid Item 15.

[65]  Ibid.

[66]  Ibid Item 23.

[67]  Ibid Item 26.

[68]  Ibid Item 27.

[69]  Ibid Item 39.

[70]  Ibid Item 32.

[71]  Ibid Item 35/2.

[72]  Ibid Item 35/7.

[73]  Ibid Item 35/8.

[74]  Tree Assessment Report page 1 [1.4], in oral evidence at the Tribunal hearing on 30 July 2019.

[75]  Tree Assessment Report page 1 [1.4].

[76]  Ibid page 2 [2.1].

[77]  The Tribunal has determined that the regulations no longer have any effect.

[78]  Respondent's statement to the Tribunal dated 3 June 2019, Attachment 16 at page 33.

[79] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 61.

[80]  Ibid s 52(2).

[81]  Ibid s 72.

[82]  Application dated 13 July 2018, page 7 [15].

[83]  Response dated 21 August 2018, Item 27.

[84]  Tree Assessment Report, page 3.

[85]  Applicant’s statement for QCAT hearing filed 4 July 2019, Item 11.

[86] Thompson v White [2012] QCAT 381.

[87] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(3)(b)(ii).

[88]  Ibid s 73(1)(k).

Close

Editorial Notes

  • Published Case Name:

    Melvaig Pty Ltd v McMillan-Kay

  • Shortened Case Name:

    Melvaig Pty Ltd v McMillan-Kay

  • MNC:

    [2020] QCAT 21

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    22 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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