Crofton v Stratton[2018] QCAT 273

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Crofton lives next door to Mr and Mrs Stratton.  Mrs Stratton is the registered proprietor of the land.
2. [2]
   Mr Crofton commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act),^[1] claiming that:

   1. (a)
      he feels it is inevitable that two gum trees on Mrs Stratton’s land will cause serious damage or injury;
   2. (b)
      the trees are likely to cause serious injury to a person within the next 12 months because of the species, their height and extension of branches, the propensity for cyclones in the Mackay area and their close proximity to his house, pool and shed;
   3. (c)
      the trees are likely to cause serious injury to his land or property on his land within the next 12 months as there had been damage to a trampoline and his pool and his land had been affected and he feels that there had to date been no serious damage only through luck;
   4. (d)
      one of the trees had caused damage to the fence by distorting its alignment;
   5. (e)
      the trees had caused substantial, ongoing and unreasonable interference with his use and enjoyment of his land as:

      1. branches and leaf litter fall in the yard and pool;
      2. leaves block gutters and roof valleys requiring more maintenance than normally required, causing internal house damage;
      3. leaves block the pool pump, affect water quality in the pool by promoting algae requiring more maintenance both in time and at a greater cost because more chemicals are required;
      4. leaf litter near his solar panels is a potential fire hazard.
   6. (f)
      The trees obstruct sunlight inhibiting growth of plants and grass and the lack of sunlight promotes mosquitoes.
3. [3]
   Mr Crofton sought numerous orders as follows:

   1. (a)
      to remove the trees;
   2. (b)
      to remove or prune the branches;
   3. (c)
      to remove or prune the roots;
   4. (d)
      a survey be undertaken to show the tree’s location in relation to the common boundary;
   5. (e)
      a person can enter Mrs Stratton’s land to carry out an order;
   6. (f)
      a person can enter Mrs Stratton’s land to obtain a quote to carry out an order;
   7. (g)
      Mrs Stratton pay the costs for carrying out the orders;
   8. (h)
      Mrs Stratton pay compensation for damage to his land or property;
   9. (i)
      an appropriately qualified arborist prepare a report;
   10. (j)
       all associated costs of the dispute resolution agreement to trim trees, damage to his property, legal fees, repairs, added maintenance costs, repair/replacement of fence.
4. [4]
   Mr Crofton did not specifically request the Tribunal, as a preliminary matter, to make an order for a tree assessor’s report to assist with the evidence in this matter.  The parties were directed to file witness statements including statements from experts.^[2]  No reports or statements from any independent witnesses or experts were filed.  There is no direct evidence from an arborist or tree lopper or from a pool maintenance professional.  There is little evidence before me to support the quantification of compensation damages claimed.
5. [5]
   At a directions hearing,^[3] Mr Crofton stated that he had assumed the Tribunal would order a report be obtained if it thought one was required.  On that occasion I enquired whether he sought any directions and was advised he did not.  Mr Crofton is the applicant and bears the onus of establishing his entitlement to orders on the balance of probabilities. 
6. [6]
   Having regard to the documents filed and Mr Crofton’s oral evidence and submissions, he primarily sought orders that the trees be removed at Mrs Stratton’s cost.
7. [7]
   In the alternative, Mr Crofton sought orders at Mrs Stratton’s cost that:

   1. (a)
      the trees be trimmed at a height where foliage dropped is reduced and to this end requested an arborist be appointed, presumably to determine an appropriate height; and
   2. (b)
      a maintenance programme be put in place.
8. [8]
   There is no evidence before me about whether trimming could achieve the stated outcome.  There is no evidence before me upon which I could currently make a finding about what would constitute an appropriate maintenance programme. 
9. [9]
   Mrs Stratton contends that:

   1. (a)
      the trees ought not be ordered to be removed;
   2. (b)
      any trimming ordered on Mr Crofton’s side ought not impact the health and integrity of the trees and ought to be carried out at Mr Crofton’s cost;
   3. (c)
      she will allow access into her property to facilitate trimming;
   4. (d)
      an order should be made restraining Mr Crofton from throwing leaves back over their fence;
   5. (e)
      the fence ought to be fixed on a joint cost basis.
10. [10]
    I am not satisfied that I have jurisdiction in these proceedings to make orders to restrain Mr Crofton from throwing leaves back over the fence. The evidence is that Mr Crofton deposits leaves from the gum trees, other leaves and other items into Mrs Stratton’s yard, often in locations, which are difficult for the Strattons to clean up.  Mr Stratton was unable to refer me to particular provisions of the ND Act nor any prior cases in support of this claim.  The making of such an order does not appear to fall within section 66(2) of the ND Act as it is not, in these circumstances, an order to prevent serious injury or to remedy, restrain or prevent serious damage or substantial ongoing and unreasonable interference in relation to a tree affecting the neighbour’s land.^[4]
11. [11]
    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.
12. [12]
    There is little evidence before me in relation to the fence.  Mr Stratton’s evidence is that the fence was erected 28 years ago at the Strattons’ costs.  There is no independent evidence about the state of the fence and whether or not the tree’s growth has caused the misalignment or distortion or whether given the age of the fence it would require replacement or repair in any event.  There is insufficient evidence upon which I can rely to make an order about the basis on which the fence should be fixed.
13. [13]
    The only documents filed and relied upon were the Application,^[5] the Response,^[6] an email from Mr Crofton dated 13 June 2017 attaching some photographs and other documents^[7] and a statement by Mr Stratton.^[8] 

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

1. [10]
   I am not satisfied that Mr Crofton 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.
2. [11]
   I am not satisfied, on the evidence before me, that Mr Crofton made a reasonable effort to resolve this dispute prior to commencing this proceeding.^[9] 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 the trees.
3. [12]
   Mr Crofton’s evidence was that:

   1. (a)
      in April 2005 he and Mr Stratton participated in a mediation about the trees and Mr Stratton breached the agreement reached.  A handwritten agreement dated 19 April 2005 is in evidence before me.^[10]  On the face of the document Mr Stratton simply agreed to consider quotes for trimming the trees once obtained and to consider Mr Crofton’s offer to contribute $440 and to bag excess debris for collection by the Strattons;

   2. (b)
      in June 2005^[11] he provided a quote to the Strattons for trimming the trees;
   3. (c)
      in July 2005^[12] Mr Stratton wrote to him advising that they did not agree with cutting the trees back to the fence line because he had been advised this will make the trees unsafe and could harm them but would pay half the cost of selective trimming to their mutual agreement;
   4. (d)
      he arranged for some trimming of the trees at his cost.   
4. [13]
   There is no evidence about what, if any, communications occurred in the intervening period of more than 10 years.
5. [14]
   In these circumstances, I am not satisfied that Mr Crofton made reasonable efforts to seek agreement prior to commencing these proceedings.

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

15. [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 Crofton would be entitled to an order under the ND Act for the reasons set out below.
16. [16]
    The Tribunal has broad powers to hear and decide:^[13]

…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.

17. [17]
    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,^[14] and the land adjoins the land on which the tree is situated.^[15] A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[16]
18. [18]
    It is not disputed that Mr Crofton’s land is affected by the trees as branches of the trees overhang Mr Crofton’s land and the trees are situated on adjoining land.
19. [19]
    The Tribunal has broad powers to make an order it considers appropriate about a tree to prevent serious injury to any person^[17]or remedy, restrain or prevent:

    1. serious damage to Mr Crofton’s land or any property on his land;^[18] or
    2. substantial, ongoing and unreasonable interference with Mr Crofton’s use of his land.^[19]
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.^[20]  Ordinarily, a healthy tree will not be ordered to be removed.
21. [21]
    The evidence is, and I accept, that:

    1. (a)
       the trees are healthy;
    2. (b)
       the trees were mature trees when Mr Crofton purchased his land and have not grown substantially since Mr Crofton purchased his land;
    3. (c)
       Mr Crofton built the pool in its current location and installed solar panels on his house. 
22. [22]
    There are a number of photographs in evidence before me of significant build up of tree debris in various locations in Mr Crofton’s property.  I gave Mr Crofton the opportunity to explain the photographs. 
23. [23]
    Mr Crofton’s evidence was that:

    1. (a)
       the amount of debris, in the form of falling branches and limbs, from Mrs Stratton’s trees posed a danger to the use of his land.  Falling branches are an almost everyday occurrence.  Photographs of a number of slender but quite lengthy branches were in evidence before me;

    2. (b)
       leaf debris from Mrs Stratton’s 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 cleared his gutters on a monthly or sometimes more often basis; 
    3. (c)
       he cleaned the pool on a daily basis and can’t walk around the pool in bare feet because of the debris.  He runs the pool vacuum ‘all the time’.  Photographs of leaves and nuts in and around the pool were in evidence before me; 
    4. (d)
       if it is windy they can’t use the pool due to a concern about branches falling;
    5. (e)
       he cleans leaf debris from around and under the solar panels about every second month and expended hours doing so.  He is concerned that the build up is a fire hazard;
    6. (f)
       there had been damage to his trampoline, garden, the garden edging, plants, a fence post and water damage.  There was little explanatory evidence as to how this damage was said to have been sustained as a consequence of the trees.  Mr Crofton’s evidence is that some damage was sustained during trimming of the trees, which he arranged, as distinct from substantial branches falling of their own accord.  Such damage seems to be reflective of a lack of care by the contractor;
    7. (g)
       a quote had been obtained to replace garden edging and a pool gate post in the sum of $957 (incl GST).  The quote is dated 10 July 2006.^[21]  There was little explanatory evidence as to this quote and whether the work had been performed;
    8. (h)
       he couldn’t afford to spend ‘all weekend cleaning up the yard’ and stated that it was ‘almost overwhelming’;
    9. (i)
       he had tried a pool cover but didn’t consider it was a suitable alternative because the cover would get damaged or stained and the amount of rain they experience would drag the pool cover under the water.  There is no evidence before me about the type of pool cover previously used and no evidence from Mr Crofton or an independent witness that there are no suitable pool covers for this application;
    10. (j)
        he had tried a number of different gutter guards but the leaves are so narrow they go through them with wind force.  There is no evidence from Mr Crofton or an independent witness that there are no suitable gutter guards for this application;
    11. (k)
        he doesn’t get the enjoyment he should be able to get from his pool and yard;
    12. (l)
        the local council had taken steps to remove gum trees in the area due to the danger they present.  Mr Stratton’s evidence was that he was not aware of the local council doing as contended.  There is no documentary evidence before me to support Mr Crofton’s contention;
    13. (m)
        damage is likely as Mackay is a cyclone rated area so there is the likelihood of lots of rain and the debris build up will cause flooding when there is a lot of rain.  The evidence is that no injury or serious damage was caused by the trees during high wind events including during the recent cyclone Debbie.
24. [24]
    Mrs Stratton as the tree-keeper is responsible for ensuring the trees do not cause serious injury to a person or serious damage to a person’s land or property or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of a person’s land.^[22]  This often involves engaging a professional from time to time to assess the trees’ health and undertake preventative trimming if recommended.  There is no evidence before me about whether Mrs Stratton has undertaken or when she last undertook such an assessment. 
25. [25]
    I accept that the trees are close to the boundary.  There is little evidence before me about the proximity of the trees to Mr Crofton’s house and shed.  Most of the evidence focussed upon the quantity of debris.
26. [26]
    The trees appear to more or less evenly span across the two yards.  Mr Stratton’s evidence is that debris falling from the trees into the yards is to be expected and that there have been two branches which have fallen in about 32 years.  He attributes the difference in appearance of the yards to the Strattons undertaking a modest amount of regular yard maintenance.  In his view the build up shown in the photographs is attributable to Mr Crofton not undertaking a similarly modest amount of regular yard maintenance.  Mr Stratton’s evidence is that he spends about an hour to an hour and a half per week to maintain both his front and back yards.  Such an amount of maintenance does not appear excessive in a leafy area. 
27. [27]
    Mr Crofton claims that the prevailing wind blows more debris from the trees into his yard.  There was no documentary evidence before me to support this contention.   
28. [28]
    On many occasions the Tribunal has found that leaf debris will not justify an order unless there is a finding that the leaf debris and the maintenance caused is excessive.^[23]  The Tribunal has previously found that it was not appropriate to make a tree order where the neighbour had not taken steps to prevent or minimise the interference by using a pool cover.^[24]
29. [29]
    I accept that Mr Crofton has an apprehension about the trees causing injury or serious damage but there is no evidence before me upon which I can rely to be satisfied that either is likely within 12 months.
30. [30]
    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.^[25]  I am not satisfied that an interference that is an obstruction of sunlight is established.  The evidence before me relates to an inability of plants to grow because of the obstruction of sunlight.   There is no evidence about an obstruction of sunlight to windows or a roof.
31. [31]
    I am required to consider various matters including the contribution to amenity the trees make to Mrs Stratton’s land. Mr Stratton’s evidence, which I accept, is that the trees provide shade, bring animals and bird life to the locality and contribute a pleasant aroma when flowering.  His evidence is that in the 32 years he has lived there the trees have not caused any serious damage.  He highlighted that they have a shade cloth located under the trees, which has not been damaged in approximately 16 years.    
32. [32]
    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, the steps taken by the tree-keeper or neighbour to prevent or minimise the interference and whether the tree existed before the neighbour acquired the land.^[26]
33. [33]
    In this regard I note that the pool was constructed and the solar panels installed by Mr Crofton after he acquired the land, which was after the trees were planted and well established.  Whilst Mr Crofton may have had limited options about where to place the pool and solar panels due to competing factors driving the decisions, the trees and their likely impact was a factor, which were known or ought to have been known at the time he made those decisions.