Street v Smith[2018] QCAT 193

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Street lives next door to Mr Smith and Ms Rodgers.
2. [2]
   Mr Street commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act),^[1] claiming that:

   1. (a)
      the bamboo was likely to cause serious injury to a person within the next 12 months because it was pushing the fence and a collapse would cause damage to property including his dwelling and any person walking next to his house;
   2. (b)
      the trees had caused in the past, and were now causing, serious damage to, his land or property on his land, as his gutters had to be removed because of the continual leaf debris;
   3. (c)
      the trees had caused in the past, and were now causing, substantial, ongoing and unreasonable interference with his use and enjoyment of his land as:

      1. there is limited light available to the east side of his house, including bedrooms and verandah;
      2. the leaf debris caused continual clogging of his gutters, which had destroyed his gutters requiring their removal;
      3. the leaf debris affected his gardens;
      4. the tree(s) affected solar production by shading; and
      5. the interference is causing an obstruction of sunlight and breeze.  
3. [3]
   He sought an order that Mr Smith and Ms Rodgers remove the trees. The Application identified two bamboo trees, both in excess of 10 metres tall, palms, and another unspecified tree.
4. [4]
   Mr Inman, a tree assessor, provided a report about the trees the subject of the dispute.^[2]
5. [5]
   Since the proceedings commenced Mr Smith and Ms Rodgers undertook certain maintenance work to trees on their land both before and after Mr Inman’s report was made available to the parties.
6. [6]
   During the hearing, Mr Street advised that he sought the following orders:

   1. (a)
      the removal of the bamboo, identified by him as T1 and as T2 in Mr Inman’s report;
   2. (b)
      the better trimming of the olive tree, identified by him as T2 and as T3 in Mr Inman’s report, which he contended would be for it to be maintained at fence height;
   3. (c)
      the removal of the bamboo, identified by him as T3 and as T4 in Mr Inman’s report; and
   4. (d)
      better maintenance of ‘no man’s land’ resulting in ‘improved visuals’ of what he is looking at on the boundary, including the painting of the fence.
7. [7]
   The previous owner of Mr Smith’s and Ms Rodgers’ land built a retaining wall within their land near the boundary of Mr Street’s land and erected a 1.8-metre timber fence on top of the retained land. Part of the fence steps in from the edge of the retaining wall and has created a strip of land, to which Mr Street referred as ‘no man’s land’, which is on his side of the fence but is part of Mr Smith’s and Ms Rodgers’ land. During the course of the hearing Mr Street conceded that Mr Smith and Ms Rodgers are able to access this strip of land without entering Mr Street’s land. The previous owner apparently consented to Mr Street planting the area. However, Mr Smith and Ms Rodgers have required those plants to be removed from their land. Shortly after Mr Smith’s and Ms Rodgers’ solicitor sent a letter to Mr Street requesting removal of the plants, Mr Street commenced these proceedings.
8. [8]
   Mr Street sought an order to require Mr Smith and Ms Rodgers to paint the fence because of the lack of visual amenity now that plants on his side of the fence had been removed. Mr Street was unable to refer me to any basis upon which I could rely to be satisfied that the Tribunal has jurisdiction to make such an order. I am not satisfied that I have jurisdiction in these proceedings to make any such order. The making of an order to paint the fence does not appear to fall within section 66(2) of the ND Act as it is not, in these circumstances, an order in relation to a tree affecting the neighbour’s land.^[3]
9. [9]
   The Tribunal is a creature of statute. It has no inherent power. It must find its power to make orders either in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or in an enabling Act, such as the ND Act.
10. [10]
    Despite directions, Mr Street did not file a statement of evidence explaining his account of his conversations with Mr Smith or Ms Rodgers or what the various photographs were said to demonstrate other than in a very abbreviated way. In these circumstances, I allowed Mr Street an opportunity to explain his case, by way of oral evidence.

Have all pre-requisites to an order been complied with?

11. [11]
    I am not satisfied that Mr Street has complied with all of the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act. On this basis, the application ought to be dismissed.
12. [12]
    I find that Mr Street did not make reasonable efforts to resolve this dispute prior to commencing this proceeding.  I am therefore not satisfied that I have jurisdiction to make orders under section 66 of the ND Act, including the removal or trimming of trees.
13. [13]
    Mr Street’s evidence was that:

    1. (a)
       approximately six years before these proceedings were commenced he spoke to Mr Smith about his neighbours’ planting of bamboo;
    2. (b)
       approximately two years before these proceedings were commenced the Streets spoke to Ms Rodgers about removing some branches of the olive tree, which work the Streets subsequently undertook but did not discuss ongoing maintenance; and
    3. (c)
       due to the response he received when he spoke to Mr Smith, he did not attempt to speak to Mr Smith or Ms Rodgers again about the bamboo and did not attempt to speak to them about the other trees the subject of these proceedings nor to write to them. 
14. [14]
    In these circumstances, I find that Mr Street made no real effort to seek agreement prior to commencing these proceedings.

If the pre-requisites had been met, has Mr Street proved any entitlement to an order under the ND Act?

1. [15]
   Even if I were satisfied that there had been compliance with all of the pre-requisites for the making of an order under section 66 of the ND Act, I would not be satisfied on the balance of probabilities that Mr Street would be entitled to an order under the ND Act for the reasons set out below.
2. [16]
   Mr Street is the applicant and bears the onus of establishing on the balance of probabilities his entitlement to orders under the ND Act.
3. [17]
   The Tribunal has broad powers to hear and decide:^[4]

…any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

18. [18]
    Land is ‘affected by a tree’ at a particular time if branches overhang the land, the tree has caused serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land,^[5] and the land adjoins the land on which the tree is situated.^[6] A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[7]
19. [19]
    The Tribunal has broad powers to make an order it considers appropriate about a tree to remedy, restrain or prevent:

    1. serious damage to Mr Street’s land or any property on his land;^[8] or
    2. substantial, ongoing and unreasonable interference with Mr Street’s use of his land.^[9]
20. [20]
    The ND Act recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved.^[10]
21. [21]
    During the hearing Mr Street conceded that the gutters, which he claimed in his Application to have been destroyed by leaf litter from trees, which had been planted by Mr Smith and Ms Rodgers, had been removed prior to Mr Smith and Ms Rodgers purchasing their land. I am therefore not satisfied that the trees have caused serious damage as contended by Mr Street.
22. [22]
    Mr Inman’s opinion is that the now remaining trees are healthy and they are not likely to cause damage to Mr Street’s land or property within the next 12 months. I accept Mr Inman’s independent evidence. Mr Inman recommends that the now remaining trees be trimmed but not removed. 
23. [23]
    Mr Street’s evidence was that the leaf debris from Mr Smith’s and Ms Rodgers’ trees was such that he was required to continuously clean up and that this was a substantial, ongoing and unreasonable interference. He estimated that he expended approximately half an hour per week cleaning up.
24. [24]
    On many occasions the Tribunal has found that leaf debris will not justify an order unless there is a finding that the leaf debris is excessive.^[11] I am not satisfied that a requirement to expend half an hour a week cleaning up is excessive. 
25. [25]
    Where the interference claimed is an obstruction of sunlight the tree must rise at least 2.5 metres above the ground and the obstruction to a window or roof must be severe.^[12]
26. [26]
    On the evidence before me, I am not satisfied the obstruction of sunlight by the trees is severe. The Tribunal has previously found that a severe obstruction is one that must be considerable.^[13]
27. [27]
    Mr Inman’s report observes that when he visited:

    1. Mr Street’s solar panels were not shaded by Mr Smith’s and Ms Rodgers’ trees;
    2. there were shade awnings over Mr Street’s primary dwelling’s windows, which would restrict sunlight into those rooms;
    3. some trees on Mr Street’s land overhang his roof, which adds to the shading of the second dwelling constructed on his land;
    4. Mr Street’s land is lower than his neighbours’ land so sunlight will be restricted.
28. [28]
    Mr Street’s property is listed on Airbnb. The online reviews indicate, inconsistently with Mr Street’s claims, that the property is ‘filled with natural light’ and has ‘divine breezes’.^[14]
29. [29]
    I am required to consider various matters including the contribution to amenity the trees make to Mr Smith’s and Ms Rodgers’ land including their contribution to privacy and protection from noise.^[15] Mr Smith’s evidence, which I accept, is that the bamboo, in particular near their pool, was planted to afford privacy and to provide an acoustic barrier.
30. [30]
    Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference then I may consider whether there is anything other than the tree which has contributed or is contributing to the interference. In relation to interference with sunlight, Mr Inman’s observations referred to earlier in these reasons noted Mr Street’s awnings and trees contribute to shading. Mr Street’s own evidence was that the retaining wall and the fence, constructed by the previous owner of Mr Smith’s and Ms Rodgers’ land, also contribute to shading in addition to the bamboo trees.