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  • Unreported Judgment

Heywood v Brogan

 

[2020] QCAT 308

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Heywood & Anor v Brogan & Anor [2020] QCAT 308

PARTIES:

WENDY HEYWOOD

JOHANNES JACOBUS VENTER

(applicants)

v

WAYNE WALTER BROGAN

ANNABEL MARY BRITTAIN

(respondent)

APPLICATION NO/S:

NDR056-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 August 2020

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gaffney

ORDERS:

  1. The Respondents shall cause the tree, known as terminalia catappa and which is the subject of the Application, including its stump (together, ‘the tree’), to be removed from the Respondents’ land within 90 days of the date of this Order.
  2. The Respondents are to pay the costs of removing the tree.
  3. The removal is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.
  4. The Applicants shall, following 7 days’ prior written notice from the Respondents, provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as may be reasonably required to allow the Respondents to obtain quotations for the removal of the tree.
  5. The Applicants shall, following 28 days' prior written notice from the Respondents (‘the removal notice’) provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as is reasonably necessary for the removal of the tree.
  6. If there is no other reasonably available means of access for removing the tree, such access is to be facilitated by the temporary removal and reinstatement of the rear boundary fence at the common boundary of the Applicants’ land and the Respondents’ land (‘the fence’) to the extent necessary for removing the tree, and, if that is the case:
    1. (a)
      the Respondents shall advise the Applicants in writing of this in the removal notice; and
    2. (b)
      the Applicants shall, within 21 days after receiving the removal notice, cause the fence to be temporarily removed (to the extent necessary) and then reinstated as soon as practicable after the tree is removed, and the Respondents shall permit such removal and reinstatement; and
    3. (c)
      the cost of such removal and reinstatement is to be borne by the Applicants.
  7. The Respondents shall plant a low growing tree appropriate to the environment in place of the tree at their cost.
  8. The notices referred to in these Orders are to be sent by email to the email addresses provided in Part A at page 1 and Part A at page 2 of the Form 51 Application for a tree dispute - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether terminalia catappa posed a risk of serious injury, a risk of serious damage to land or property or of substantial ongoing and unreasonable interference with the use and enjoyment of land – impact of tree litter falling on neighbours’ land – risk of tree failure – whether order for tree removal should be made – whether the tree-keepers should bear the costs of removal

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 42(1), s 52(2), s 53(b), s 59, s 61, s 63, s 65, s 66, s 69, s 71, s 73, s 74, s 75

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

  1. [1]
    The Applicants are the registered owners of land at a suburb of Cairns. (‘the Applicants’ land’).[1] The Respondents are the registered owners of land which has a common rear boundary with the Applicants’ land (‘the Respondents’ land’).[2] Situated on the Respondents’ land, at the rear of the property, is an Indian-Almond tree or terminalia catappa (‘the tree’).[3] It has grown to an above-normal height with a very large canopy,[4] which overhangs the Applicants’ adjoining land, and the building which is situated on the land (‘the building’).[5]
  2. [2]
    In the Application filed on 10 April 2019 (‘the Application’), the Applicants claim, amongst other things:[6]
    1. (a)
      the tree overhangs eight metres into their property and for the full breadth and at a height of between 10 and 20 metres;
    2. (b)
      the tree litter from the tree is continually deposited on the roof of unit 2 of the building, and quickly blocks the gutters, resulting in flooding to the building.
  3. [3]
    The Applicants, in effect, seek a number of orders:[7]
    1. (a)
      the removal of the offending tree within 28 days and ongoing maintenance on any other trees which grow into the space created by the removal of the main offending tree;
    2. (b)
      alternatively, maintenance work on all trees overhanging the Applicants’ land annually, keeping branches to the Respondents’ side of the fence;
    3. (c)
      that the costs of complying with any orders be paid by the Respondents;
    4. (d)
      that the Respondents pay compensation for any further damage arising from a failure of the Respondents to maintain trees on their side of the fence.

Directions made on 19 May 2020

  1. [4]
    On 19 May 2020, Senior Member Brown directed that the Application would be determined on the papers.

The Application and the Response

  1. [5]
    The Applicants’ case is primarily articulated in their response to a series of numbered questions posed in the form of the Application, titled ‘Application for a tree dispute’ in Form Number 51 version 2 (‘the Form 51’).
  2. [6]
    The Respondents’ case is primarily articulated in the form titled ‘Response to application for a tree dispute’ in Form Number 52 (Version 2) (‘the Response’). In the Response, the Respondents have either replied to the Applicants’ responses to questions in the Form 51 or have addressed the questions posed in the Form 51 directly.
  3. [7]
    Accordingly, where I refer in this judgment to a party’s response to a certain ‘Question’, I am referring to that question as it appears in the Form 51.

The Tribunal’s power to make an order with respect to the tree

  1. [8]
    Sections 61 and 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) empower the Tribunal to make orders with respect to trees. Section 72 of the Act makes it clear that the Tribunal may order that a tree may be removed or destroyed.

Orders unsupported by particulars or evidence

  1. [9]
    It should be stated at the outset that some of the orders sought by the Applicants are not sufficiently supported by evidence or particulars and do not merit further consideration. These are:
    1. (a)
      the order for ongoing maintenance of any other trees which grow into the space created by the removal of the tree. The Applicants state that ‘this is likely in years to come due to the prolifically overgrown state of the respondents’ garden’.[8] There is no expert evidence that other trees will grow into the space, the nature of such trees, or what impact they might have. The claim is speculative in nature and not maintainable;
    2. (b)
      an order for maintenance work on all trees overhanging the Applicants’ land annually, keeping branches of the trees to the Respondents’ side of the fence. The claim lacks particularity as to the trees in question (other than the tree as defined) and no real evidence has been provided as to damage or risks posed by trees other than the tree. It is not therefore not appropriate to make an order in respect of other trees;
    3. (c)
      an order for compensation for future damage should the Respondents not maintain trees to their side of the fence. This claim is unparticularised, unquantified, and speculative in nature and ought not be the subject of an order under section 66.
  2. [10]
    That leaves two of the orders sought by the Applicants to be considered in this judgment:
    1. (a)
      the order for removal of the tree within 28 days; and
    2. (b)
      the order that the Respondents pay the costs of complying with the Tribunal’s orders.
  3. [11]
    It is implicit in the Response that the Respondents oppose those orders.[9]

Conditions to be satisfied before orders may be made

  1. [12]
    There are many conditions to be satisfied before the Tribunal may make orders with respect to the tree under section 66, and I will deal with each of these in turn.
  2. [13]
    By section 59 of the Act:
    1. (a)
      the tree which is the subject of the Application must be a ‘tree’ as defined in section 45 of the Act;[10]
    2. (b)
      there must also be ‘land affected by a tree’ as defined in section 46;[11] and
    3. (c)
      the Applicants must each be a ‘neighbour’ of the Respondents within the meaning of section 49 of the Act, whose land is ‘affected by a tree’.
  3. [14]
    There is another requirement of section 59, which is that the neighbour can not resolve the issue using the process under Chapter 3 Part 4 of the Act. Part 4 only applies if the neighbour wants overhanging branches removed, so to the extent that the Applicants seek an order for removal of the tree this requirement does not apply.
  4. [15]
    Returning then to the other matters contemplated by section 59, in this case:
    1. (a)
      the photographs provided with the Application, together with two reports prepared by a consultant aborist John Madderom (discussed in more detail below) show that tree is evidently a ‘tree’ within the meaning of section 45(a) or (b) of the Act;
    2. (b)
      it is established by the evidence that the tree is situated on the Respondents’ land, that branches of the tree overhang the Applicants’ land (which is accepted by the Respondents),[12] and that the Applicants’ land adjoins the Respondents’ land.[13] Accordingly, by section 46, the Applicants’ land is ‘affected by’ the tree; and
    3. (c)
      as the ‘land affected’ is a lot recorded on the freehold land register, and Applicants are the registered owners of that land,[14] they are each a ‘neighbour’ within the meaning of section 49 of the Act.
  5. [16]
    By sections 63 and 65 of the Act, a copy of the Application must have been given to the persons referred to in section 63(1) within 21 days before the day the Application is to be heard (except to the extent the requirement to do so has been waived under section 63(2) of the Act).  The first person referred to in section 63 is the ‘tree keeper’. Given the definition of ‘tree-keeper’ in section 48(1)(a) of the Act, the Respondents are each a tree keeper as they are the registered owners of the land on which the tree is situated.
  6. [17]
    According to section 53(b) of the Act, if there is more than one tree-keeper for a tree, a notice that may or must be given to the tree-keeper may be given to any of the tree-keepers. The Affidavit of Service provided by Ms Heywood establishes that only Mr Brogan was served with the Application, which occurred on 20 May 2019. At that point Mr Brogan was the only respondent, Ms Brittain being joined subsequently as a respondent to the Application.[15] I consider that service on Mr Brogan was sufficient in light of section 53(b). Alternatively, I am prepared to waive the requirement for the Applicants to have given a separate copy of the Application to Ms Brittain, as I consider it appropriate to waive the requirement in the circumstances, namely, that Ms Brittain is Mr Brogan’s partner and lives with him.[16]
  7. [18]
    The evidence does not indicate that there is any other entity which should have been given a copy of the Application under section 63(1) of the Act.
  8. [19]
    Accordingly, in light of the matters discussed above, I consider the service requirements to have been satisfied.
  9. [20]
    Section 65 of the Act prescribes other conditions to be satisfied before orders may be made with respect to the tree.
  10. [21]
    The first condition, prescribed by section 65(a) of the Act, is that the neighbour has made a reasonable effort to reach agreement with the tree-keeper. The efforts to reach agreement have been detailed in the Applicant’s response to Question 5 of the Application, and were not disputed in the Response. I am satisfied that the Applicants have met this condition.
  11. [22]
    The second condition, prescribed by section 65(b) of the Act, is that the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process.[17] I conducted a search of the website of the Cairns Regional Council with respect to disputes involving trees. It did not indicate that there is any local law, local government scheme or local government administrative process providing for the resolution of a dispute such as the present. A suggestion is made on the website that disputes be mediated via the Dispute Resolution Centre or the Citizens Advice Bureau. The Applicants’ response to Question 6 of the Application indicates that an application for mediation was lodged with the Dispute Resolution Centre but that Mr Brogan refused to engage in any discussions. This assertion was not responded to in the Response. I am satisfied that section 65(b) does not apply, or if it does apply that the Applicants have met the condition it prescribes.
  12. [23]
    The third condition is prescribed by section 65(c)(i) of the Act. To the extent that the issue relates to the land being affected because branches from the tree overhang the land, the branches must extend to a point over the neighbours’ land that is at least 50cm from the boundary. That point is asserted by the Applicants and conceded in the Response.
  13. [24]
    The fourth condition is prescribed by section 65(c) of the Act, which requires that ‘the neighbour can not properly resolve the issue using the process under part 4 [of Chapter 3 of the Act]’. As discussed, Part 4 does not apply for an order for removal of a tree.
  14. [25]
    There are however further conditions to be met before an order may be made with respect to the tree, which, although not expressed as such, are invoked by section 66(2) of the Act.
  15. [26]
    Section 66 (‘Orders QCAT may make’) provides:
    1. (1)
      Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.
    2. (2)
      QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
      1. to prevent serious injury to any person; or
      2. to remedy, restrain or prevent—
        1. (i)serious damage to the neighbour’s land or any property on the neighbour’s land; or
        2. (ii)substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
    3. (3)
      However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—
      1. the tree rises at least 2.5m above the ground; and
      2. the obstruction is—
        1. (i)severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
        2. (ii)severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
    4. (4)
      Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.
    5. (5)
      Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—
      1. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

  • an order that requires the removal of the tree within 28 days
  • an order that requires particular maintenance work on the tree during a particular season every year
  • an order that requires particular work to maintain the tree at a particular height, width or shape
    1. (b)
      require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
    2. (c)
      require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
    3. (d)
      authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
    4. (e)
      require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
    5. (f)
      require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
    6. (g)
      require a report by an appropriately qualified arborist.
  1. (6)
    In this section—

window includes a glass door, window forming part of a door, skylight or other similar thing.

  1. [27]
    Accordingly, by section 66(2) of the Act, for an order to be made under section 66 there must be:
    1. (a)
      a risk of serious injury to any person (because the order must be to ‘prevent’ the serious injury); or
    2. (b)
      the existence of, or risk of:
      1. serious damage to the Applicants’ land or property on the land; or
      2. a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land (because the order must be to ‘remedy, restrain or prevent’ the damage or interference).
  2. [28]
    I turn now to consider the impact of the tree in light of those criteria.

What the evidence reveals about the impact of the tree

  1. [29]
    The Applicants’ material reveals:
    1. (a)
      first, that the tree has caused damage to the roof of the building as a result of tree litter from the tree (described in the Application[18] as leaves, small branches, flowers, flower stalks, fruit and bat droppings) falling on its roof, impeding the run off of water in large rainfall events, resulting in water flowing into the ceiling cavity of the building, leading to the shorting of electrical connections, ceiling damage, growth of mould, corrosion in galvanised roofing sheets and swelling of woodwork and shelving in the bedrooms and kitchen (‘tree litter damage’);[19] and
    2. (b)
      secondly, that there is a risk that the tree will fail (‘tree failure risk’).

Tree litter damage

  1. [30]
    There is compelling evidence of the tree litter damage.[20] For example, in his Tree Condition Report dated 24 January 2019 (‘Tree Condition Report’), Mr Madderom states that:

[Beach Almond trees] are semi-deciduous in this area resulting in large leaf drops annually. However, Beach Almond trees are well known for heavy leaf litter falls throughout the year, resulting in high maintenance.[21]

  1. [31]
    The existence of tree litter was not disputed, indeed the evidence is that Mr Brogan ‘sympathized’ with the problem at one stage,[22] but the Respondents’ position is that any consequent damage to the roof was caused by unsuitable roof design.[23] The Respondents also state in the response to Question 23 that ‘the tree in question is not interfering with the use and enjoyment of [the Applicants’] land.’ In light of the evidence adduced by the Applicants, I do not accept this contention.

Tree failure risk

  1. [32]
    As to the tree failure risk, this has been identified by Mr Madderom in his Tree Assessment Report dated 5 December 2019 (‘Tree Assessment Report’) and a subsequent memorandum dated 8 April 2019 from Mr Madderom to Ms Heywood’s father, Mike Heywood.
  2. [33]
    In the Tree Assessment Report, Mr Madderom states:

The tree base is a junction of two main trunks and a younger structure that has developed between the main inclusion, this indicates a deep inclusion with a separate developing structure…[24]

This tree is genuinely typical for the species except for two issues:

  1. The height is above normal and a very large canopy has developed.
  2. The tree has a large inclusion at the base.

On the first issue height and large canopies are subject to sail factor or wind resistance. If no winds are experienced in this area problem (sic) is reduced, if not wind will put stress on the base structure.

In my experience the inclusion at the base will fail. These two tree structures are large and will have great impact on surrounding properties. (emphasis added)

My recommendation is to remove the terminalia and retain the collection of [nearby] trees including the Melaleuca close by.

Option two is to reduce the subject tree in height by 50%. This is not a desirable option or recommended, however I believe the tree would survive such actions.[25]

  1. [34]
    Mr Madderom also states earlier in that report that ‘The subject tree is located in fall distance of pedestrian areas and buildings.’[26]
  2. [35]
    In the memorandum dated 8 April 2019 Mr Madderom states as follows:

Assessment of this tree was conducted in December 2019 at which time, the tree was assessed as inappropriate for the location.

Further to this assessment, it is noted the issues have not abated, the tree continues to expand over neighbouring buildings, and the cavity and inclusion at base level is a concern for stability, particularly if wind is experienced in the area. (emphasis added)

It is highly recommended that this tree is removed.

  1. [36]
    To the extent that they concern the stability of the tree, these two assessments are inconsistent with an earlier assessment by Mr Madderom in the Tree Condition Report (of 24 January 2019). Mr Madderom there states:

This specimen has developed a double trunk likely with competition in the root structure. However building and surrounding plantings provide protection so blow over risk is low.[27] (emphasis added)

  1. [37]
    I have considered the inconsistency between the earlier Tree Condition Report and the later Tree Assessment Report and memorandum, in that the risk of failure was assessed as low in the Tree Condition Report but was emphasised as a concern in the Tree Assessment Report and Memorandum.
  2. [38]
    However, no other expert evidence was adduced by either party to confirm or contradict that of Mr Madderom. Mr Brogan refused to contribute to the cost of an independent tree assessor for financial reasons.[28] The Respondents did not object to this Proceeding being determined on the papers. There is nothing to indicate that Mr Madderom’s later evidence as to the risk of failure should be treated as anything other than a re-assessment of the risk of failure as a result of the passage of time.
  3. [39]
    It is contended in the Response that ‘the tree is healthy and is no more risk than any other tree in the event of a cyclone or extreme weather event’.[29] No evidence has been adduced which would reveal either of the Respondents to have qualifications or experience in arboriculture. Accordingly, I prefer the evidence of Mr Madderom and accept his evidence that the tree is at risk of failure.
  4. [40]
    In my view, the later evidence of Mr Madderom, together with the evidence of the tree’s size, and canopy breadth permits the inference that in its present state the tree presents a serious risk of injury to person or serious damage to the Applicants’ land or neighbouring property.
  5. [41]
    In light of the matters addressed above, I consider that:
    1. (a)
      the tree failure risk presents ‘risk of serious injury to any person’;
    2. (b)
      the tree failure risk presents a risk of ‘serious damage’ to property on the Applicants’ land; and
    3. (c)
      the tree litter damage represents a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land.

Conclusion: power to make orders

  1. [42]
    Given the matters canvassed above, I conclude that the various conditions which must be met in order for the Tribunal to make orders in relation to the tree have been satisfied, waived or are not applicable, and the Tribunal is empowered to make orders in relation to the tree under section 66 of the Act.

Matters to be considered in making an order

  1. [43]
    I turn now to consider what orders should be made.
  2. [44]
    Under section 71 of the Act, the primary consideration is the safety of any person. Accordingly, I must give primary weight to the risk of injury which I consider is posed by the tree failure risk.
  3. [45]
    There are many other matters to consider.
  4. [46]
    First, under section 72 of the Act, a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. However, the evidence of Mr Madderom in the Tree Assessment Report indicates that the alternative to the removal of the tree, by reducing it in height by 50%, is not a desirable or recommended option.[30]
  5. [47]
    Other considerations are set out in section 73 of the Act.
  6. [48]
    Section 73 (‘General matters to consider’) provides:
  1. (1)
    QCAT must consider the following matters—
  1. (a)
    the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
  2. (b)
    whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;
  3. (c)
    whether the tree has any historical, cultural, social or scientific value;
  4. (d)
    any contribution the tree makes to the local ecosystem and to biodiversity;
  5. (e)
    any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
  6. (f)
    any contribution the tree makes to public amenity;
  7. (g)
    any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
  8. (h)
    any impact the tree has on soil stability, the water table or other natural features of the land or locality;
  9. (i)
    any risks associated with the tree in the event of a cyclone or other extreme weather event;
  10. (j)
    the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;
  11. (k)
    the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
  1. (2)
    For subsection (1)(c), the circumstances where a tree has historical, cultural, social or scientific value include where the tree—
  1. (a)
    is, or is part of, Aboriginal cultural heritage under the Aboriginal Cultural Heritage Act 2003; or
  2. (b)
    is, or is part of, Torres Strait Islander cultural heritage under the Torres Strait Islander Cultural Heritage Act 2003; or
  3. (c)
    is, or is situated in, a Queensland heritage place under the Queensland Heritage Act 1992.
  1. (3)
    For this Act, no financial value or carbon trading value may be placed on a tree.
  1. [49]
    Considering section 73, I take into account the following matters:
    1. (a)
      an aerial photograph of the tree provided with the Application[31] indicates that the canopy of the tree not only overhangs the Applicants’ property but also neighbouring properties to the right and left of the rear boundary. That this is the case is also suggested by the photographs contained at pages 6 and 7 of the  Tree Assessment Report and Mr Madderom’s statement in that report that ‘the canopy extends some 10 metres plus into neighbouring properties’.[32] Mr Madderom also states in the Tree Assessment Report that the tree is located within fall distance of pedestrian areas and buildings.[33] This suggests that the number of persons who may be at risk of the tree failing is increased;
    2. (b)
      the Applicant has provided an email dated 17 July 2018 from Emma Finney at the Cairns Regional Council to Mike Heywood to the effect that work on the tree would not require its consent or authorisation, but rather requires self-assessment;
    3. (c)
      there is no evidence that the tree has any particular historical, cultural, social or scientific value. Mr Madderom’s memorandum dated 8 April 2020 indicates that the same species of tree is common in an esplanade in the suburb in which the Applicants’ land and the Respondents’ land are located;
    4. (d)
      there is no expert evidence that the tree makes any particular contribution to the local ecosystem or biodiversity – Mr Madderom remarks that there is no wildlife habitation with respect to the tree.[34] He does note that there is ‘prominent vegetation worthy of retention’ observed within the ‘TPZ’ (tree protection zone)[35] but does not state that that vegetation is dependent upon the tree. The Respondents state in the response to Question 40 that the trees in the street at which the Respondents’ land is located are a breeding habitat for many species of birds and other fauna, but in the absence of any particulars or supporting expert evidence, I prefer the evidence of Mr Madderom in this respect. The Respondents contend in the response to Question 35 that the tree is a mangrove and totally protected. This seems unlikely given the position of the Cairns Regional Council. Terminalia catappa does not appear from a search of the Nature Conservation Wildlife Regulation 2006 (Qld) to be protected nor does it appear to be so under the Environment Protection and Biodiversity Conservation Act 1999 (Cth);
    5. (e)
      there is no expert evidence about the contribution which the tree makes to the natural landscape and scenic value of the land or locality. The aerial photograph of the tree indicates that the tree may either not be visible from the streets in which, respectively, the Applicants’ land and the Respondents’ land are located, or if it were it would not represent a significant feature of the landscape viewed from those streets;
    6. (f)
      similarly, there is no expert evidence as to the impact of the tree on public amenity, and its location suggests that public amenity would not be impacted by the removal of the tree;
    7. (g)
      by contrast, there is evidence that, despite the evidence of adverse effects on the amenity of the Applicants, the tree does contribute positively to the Respondents’ amenity. In the response to Question 35, the Respondents state that ‘the tree contributes to the amenity of the property by providing privacy, conforms with landscaping and garden design and [provides] protection from the sun with shade.’ The Respondents also contend, in the response to Question 23 that ‘The tree in question is not interfering with the use and enjoyment of their land. The shade from the trees keeps the property cool in the summer months negating the need for air conditioning.’ That appears to be only an assumption on the Respondents’ part. The Applicants’ position, stated in an email from Mike Heywood to the Tribunal dated 5 September 2019, is that ‘the tree which overhangs up to (now) 9 metres and covers a third of the house roof and all of the rear of the whole property, makes the house very dark and dank. This includes two bedrooms and a laundry and three bathrooms’;
    8. (h)
      there is no available evidence of the impact which the tree has on soil stability, the water table or other natural features of the land or locality;
    9. (i)
      the evidence of Mr Madderom as to risks associated with the tree suggests that in the event of a cyclone or extreme weather event the tree is at risk of failing;
    10. (j)
      as to the impact of pruning the tree, in the Tree Condition Report, Mr Madderom states that although it is an option, it is not preferred as the position is difficult to develop a lower shape, and that pruning would require regular maintenance and monitoring.[36] In the Tree Assessment Report, Mr Madderom states that reducing the size of the tree by 50% is an option, but not a desirable or recommended option;[37]
    11. (k)
      the tree is not a species of pest or weed according to a search of the Queensland Government website.[38]
  2. [50]
    Section 74 of the Act provides for other matters to consider if serious injury or damage is alleged. 
  3. [51]
    Section 74 provides:
  1. (1)
    If the neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, QCAT may consider—
  1. (a)
    anything other than the tree that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land; and
  2. (b)
    any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.
  1. (2)
    In making an order under section 66 to carry out work that involves destroying a tree, QCAT may consider—
  1. (a)
    how long the neighbour has known of the injury or damage; and
  2. (b)
    any steps that have been taken by the tree-keeper or the neighbour to prevent further injury or damage; and
  3. (c)
    anything other than the tree that may have caused, or contributed to, some or all of the injury or damage; and
  4. (d)
    any other matter QCAT considers relevant.
  1. [52]
    ‘Destroy’ is defined in section 51 of the Act to mean destroy in any way, including uproot, ring bark or cut down the tree, and includes remove the tree and its stump.
  2. [53]
    In this case, the Applicants, in the response to Question 13, allege that tree litter has caused serious damage to their property.
  3. [54]
    Further, the risk of serious damage to the Applicants’ property resulting from tree failure is raised in the Applicants’ response to Question 11. It is stated there that ‘There is also the high likelihood of the huge overhanging branches falling on the roof in strong wind conditions.’ The risk of serious damage to the Applicants’ property is also contemplated by Mr Madderom’s statement in the Tree Assessment Report that ‘…the inclusion at the base will fail. These two tree structures are large and will have great impact on surrounding properties.’[39]
  4. [55]
    Accordingly, in considering what orders to make under section 66 of the Act, I may consider the matters in section 74. I turn to these now, addressing first the risks posed by tree litter damage, and secondly the risks posed by tree failure.

Section 74 and tree litter damage

  1. [56]
    The Respondents’ position, expressed in the response to Questions 11 and 13, is to the effect that tree litter damage has been caused by unsuitable roof design. In the Respondents’ response to Question 15, it is stated that ‘there are many trees surrounding the roof in question that can deposit leaves depending on wind direction and strength.’ In the response to Question 18, the Respondents state ‘six large trees on the property have been removed since the reported damage. They may have contributed to the problem as could any tree in the area.’
  2. [57]
    The Applicants admit in the Application that ‘The roof has a very low pitch/flat type with a raised parapet/wall the whole way around it. This prevents litter from easily blowing or being washed away.’ The Applicants provided plans of the house which show a flat roof.
  3. [58]
    The Applicants point to extensive work on the property to alleviate the problems caused by the tree litter. They have amended the gutter, gutter guards and overflows to allow maximum water to flow off the roof, had the roof professionally pressure-cleaned and resealed to treat rust and prevent water getting into the ceiling. They regularly clean the roofs and gutters every six weeks.[40] However, I do accept that the flat roof design of the building has contributed to the tree litter damage.
  4. [59]
    Mr Brogan states in the Response that he obtained a quotation from a tree-lopper to prune the branches, but being an aged pensioner would not be able to afford the cost.[41] The amount of the quotation has not been disclosed. No other steps were taken by the Respondents to mitigate the impacts of the tree.
  5. [60]
    The Applicants’ say in response to Question 19 that they purchased the property in August 2016 and the issue of the tree litter first became known to them on 21 March 2017. The first letter with respect to the tree was sent to the Respondents on 31 March 2017.[42] At that time the branches of the tree were said to be overhanging the property by five metres. I do not consider that there has been undue delay by the Applicants in seeking to address the issues caused by the tree.

Section 74 and tree failure risk

  1. [61]
    The expert evidence does not reveal any other cause of tree failure risk than the tree itself.
  2. [62]
    The Respondents’ actions in relation to the tree are limited to obtaining a quote for pruning work, as stated above.
  3. [63]
    As to the question of how long the Applicants have known of the injury or damage, the risk of damage caused by falling overhanging branches was raised in the letter dated 31 March 2017.  As mentioned above, I do not consider there has been undue delay by the Applicants in seeking to address the issue of tree failure, given they purchased the property in August 2016.

Section 74(2)(d) considerations – ‘any other matter QCAT considers relevant’

  1. [64]
    The following considerations are relevant regardless of whether the removal of the tree is to prevent tree litter damage or tree failure risk.
  2. [65]
    I take into account the repeated recommendations by Mr Madderom that the tree be removed, because of his concerns about the stability of the tree, and that pruning the tree back is not a preferred option.
  3. [66]
    I also take into account the cost of the tree removal. A revised quotation has been provided by the Applicants which indicates the cost of removing the tree is likely to be in the region of $10,000 to $20,000.[43] This cost is likely to impose significant hardship upon the Respondents. However, this concern needs to be considered in the following context:
    1. (a)
      section 41(1) of the Act has the effect that the Respondents are responsible for the proper care and maintenance of the tree;
    2. (b)
      section 52(2) of the Act has the effect that the Respondents are responsible for ensuring that the tree does not cause serious injury to a person, serious damage to a person’s land or any property on the person’s land; and
    3. (c)
      the Respondents have failed to make any real effort to mitigate the effects of the tree.
  4. [67]
    There is also the practicality of removing the tree to consider. The Respondents state in the Response that there is no access on the Respondents’ property to remove a large tree.[44] However an email dated 9 March 2020 from Wendy Heywood to the Tribunal (copied to the Respondents’ email address) indicates that access for the tree’s removal could be achieved from the Applicants’ property by temporarily removing the fence at the boundary.[45]
  5. [68]
    As to what should occur after the removal of the tree, I take into account Mr Madderom’s recommendation that the collection of trees nearby be retained (‘subject to assessment’).[46] I also take into account the recommendation of Mr Madderom in the Tree Condition Report that the tree be replaced with low growing specimens.[47] Mr Madderom’s recommendation also contemplates that the stump of the tree should also be removed. I note the email dated 14 February 2019 from Lynne Neal, Real Estate Agent, to the Applicants,[48] which states as follows:

[Mr Brogan] said there’s another Beach Almond 10 from the offending tree or  fence, and a Melaleuca less than 2m from the tree. He said if you chop the big tree down, the others will just spread into the space and you’ll have the same problem again. 

  1. [69]
    Without evidence as to Mr Brogan’s qualifications to make this statement, I prefer the recommendation of Mr Madderom. In any event, this risk might be removed by the planting of a low growing specimen as recommended.

Matters for consideration with respect to unreasonable interference: section 75 of the Act

  1. [70]
    As the Applicants have alleged[49] that the tree litter has caused substantial, ongoing and unreasonable interference with the use and enjoyment of their land, I am also able to consider the matters set out in section 75 of the Act.
  2. [71]
    Section 75 (‘Other matters to consider if unreasonable interference alleged’) provides:

If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—

  1. (a)
    anything other than the tree that has contributed, or is contributing, to the interference; and
  2. (b)
    any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
  3. (c)
    the size of the neighbour’s land; and
  4. (d)
    whether the tree existed before the neighbour acquired the land; and
  5. (e)
    for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.
  1. [72]
    The matters referred to in section 75(a), (b) have been addressed above, and section 75(e) is not applicable in this case.[50] As to the remaining factors:
    1. (a)
      the size of the Applicants’ land is 1,012m2.[51]  It is not so large as to diminish the effect of the overhanging branches;
    2. (b)
      the tree existed prior to the acquisition of the land, but the evidence is that the extent of overhang was much less – as at March 2017 the overhang was estimated at five metres.[52] The overhang estimated at 5 September 2019 was nine metres, and Mr Madderom indicated in the Tree Assessment Report (of 5 December 2019) that ‘the canopy extends some 10 metres plus into the neighbouring properties.’

Conclusion: the appropriate orders in this case

  1. [73]
    I consider the appropriate order in this case is that the tree and stump should be removed for the purpose of preventing serious injury to persons in the vicinity of the tree, further or alternatively, to prevent serious damage to the Applicants’ land and property on their land. I also consider that the tree should be replaced by planting a low growing tree which is appropriate to the environment[53] so that the risk of another large tree growing in the space is minimised.
  2. [74]
    I also consider, having regard to sections 41(1) and 52(2) of the Act, and the fact that despite repeated requests by the Applicants, the Respondents took no substantive action to mitigate the problems caused by the tree, that the cost of removal and associated costs should be borne primarily by the Respondents. A reasonable amount of time should be allowed for removal of the tree to enable the Respondents to raise the necessary funds. Mr Madderom has not indicated that the risk of tree failure is imminent.
  3. [75]
    I further consider, in light of the possible difficulties in gaining access to the tree from the Respondents’ property, that:
    1. (a)
      the Applicants should provide such access to their property as is necessary to facilitate the removal of the tree and stump, including to allow persons to provide quotations for removal of the tree and stump; and
    2. (b)
      the Applicants should, if it is necessary, cause the rear boundary fence to be removed and reinstated for the purpose of removing the tree and stump. In consideration of the significant financial cost which I expect will need to be met by the Respondents and the hardship which this may cause, I consider that the cost of reinstatement and removal of the fence should be borne by the Applicants if it becomes necessary.

Orders

  1. [76]
    I make the following orders:
  1. The Respondents shall cause the tree, known as terminalia catappa and which is the subject of the Application, including its stump (together, ‘the tree’), to be removed from the Respondents’ land within 90 days of the date of this Order.
  2. The Respondents are to pay the costs of removing the tree.
  3. The removal is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.
  4. The Applicants shall, following 7 days’ prior written notice from the Respondents, provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as may be reasonably required to allow the Respondents to obtain quotations for the removal of the tree.
  5. The Applicants shall, following 28 days' prior written notice from the Respondents (‘the removal notice’) provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as is reasonably necessary for the removal of the tree.
  6. If there is no other reasonably available means of access for removing the tree, such access is to be facilitated by the temporary removal and reinstatement of the rear boundary fence at the common boundary of the Applicants’ land and the Respondents’ land (‘the fence’) to the extent necessary for removing the tree, and, if that is the case:
    1. (a)
      the Respondents shall advise the Applicants in writing of this in the removal notice; and
    2. (b)
      the Applicants shall, within 21 days after receiving the removal notice, cause the fence to be temporarily removed (to the extent necessary) and then reinstated as soon as practicable after the tree is removed, and the Respondents shall permit such removal and reinstatement; and
    3. (c)
      the cost of such removal and reinstatement is to be borne by the Applicants.
  7. The Respondents shall plant a low growing tree appropriate to the environment in place of the tree at their cost.
  8. The notices referred to in these Orders are to be sent by email to the email addresses provided in Part A at page 1 and Part A at page 2 of the Form 51 Application for a tree dispute - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Footnotes

[1]Application filed 10 April 2019 (‘Application’), response to Part B, response to Question 32; Cairns Regional Council Rates Account dated 26 July 2019, title search dated 31 May 2019.

[2]Marked Registered Plan 708121.

[3]Application, Response to Questions 32, Tree Assessment Report dated 8 December 2019 by John Madderom (‘Tree Assessment Report’), page 4, [3].

[4]Tree Assessment Report, page 12, [6].

[5]Tree Condition Report dated 24 January 2019 by John Madderom (‘Tree Condition Report’), page 3; Application, response to Question 32.

[6]Application, response to Question 40.

[7]Application, response to Question 39.

[8]Application, response to Question 39.

[9]Response, response to Question 39.

[10]See also the references to ‘tree’ in sections 61 and 66 of the Act.

[11]See also section 61.

[12]Response filed on 12 August 2019 (‘Response’) Part C.

[13]Refer footnotes [1] – [3] above.

[14]Marked survey plan provided by the Applicants on 25 July 2019.

[15]Tribunal Directions of 25 July 2019.

[16]Refer email from Annabel Brittain to the Tribunal dated 21 April 2020, Response, response to Question 5, [3].

[17]Section 65(b) of the Act.

[18]Applicants’ response to Question 11.

[19]Refer to the Applicants’ response to Question 11, 13, 40 and the photographs included at Attachment 3, letter dated 18 February 2019 from Isobel Devitt, tenant (Attachment 8).

[20]Applicants’ response to Questions 11, 13, 14, 23, 24, 40, photographs at Attachment 3, Tree Condition Report, p 4, email from Mike Heywood to the Tribunal dated 5 September 2019.

[21]Tree Condition Report, page 4.

[22]Response, response to Question 5.

[23]Response, response to Questions 5, 11, 13, 15, 17, 40.

[24]Page 12, [5].

[25]Page 12, [6].

[26]Page 4, [3].

[27]Page 4.

[28]Email dated 8 August 2019 from Mr Brogan to the Tribunal.

[29]Response, response to Question 35.

[30]Tree Assessment Report, page 12, [6].

[31]Applicant’s response to Question 32.

[32]Tree Assessment Report, page 12, [5].

[33]Tree Assessment Report, page 4, [3].

[34]Tree Assessment Report, page 4, [3].

[35]Tree Assessment Report, page 4, [3].

[36]Tree Condition Report, page 4.

[37]Tree Assessment Report, page 12, [6].

[38]Queensland Government, ‘Invasive Plants’, Business Queensland (Web Page, 1 September 2016) https://www.business.qld.gov.au/industries/farms-fishing-forestry/agriculture/land-management/health-pests-weeds-diseases/weeds-diseases/invasive-plants.

[39]Tree Assessment Report, page 12, [6].

[40] Application, response to Questions 21, 22, 27.

[41]Response, response to Question 39.

[42]Application, Attachment 4.

[43]Email from Tree Arrangements to Mike Heywood dated 8 April 2020.

[44]Response, response to Question 5, [3].

[45]Material in the email which concerns an offer put to the Respondents has been disregarded. No objection was made to the email by the Respondents.

[46]Tree Assessment Report, page 12, [6].

[47]Tree Condition Report, page 4.

[48]Attachment 7 to the Application.

[49]Application, response to Question 23.

[50]Application, response to Question 30.

[51]Application, response to Question 28.

[52]Application, Attachment 4: letter dated 31 March 2017 from Lynne Neal Real Estate to the Respondents.

[53]Refer section 69 of the Act.

Close

Editorial Notes

  • Published Case Name:

    Wendy Heywood and Johannes Jacobus Venter v Wayne Walter Brogan and Annabel Mary Brittain

  • Shortened Case Name:

    Heywood v Brogan

  • MNC:

    [2020] QCAT 308

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Gaffney

  • Date:

    10 Aug 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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