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Acacia Ridge Presbyterian Church v Thomson[2018] QCAT 300

Acacia Ridge Presbyterian Church v Thomson[2018] QCAT 300

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Acacia Ridge Presbyterian Church v Thomson [2018] QCAT 300

PARTIES:

ACACIA RIDGE PRESBYTERIAN CHURCH

(applicant)

 

v

 

CATHERINE THOMSON

(respondent)

APPLICATION NO/S:

NDR208-17

MATTER TYPE:

Neighbourhood Dispute

DELIVERED ON:

3 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

  1. Catherine Thomson must arrange for the removal of the coconut palm situated on 376 Mortimer Road, Acacia Ridge and which overhangs
    372 Mortimer Road, Acacia Ridge.
  2. Catherine Thomson is responsible for the cost of the removal.
  3. The removal must be completed within 45 days of the date of this order.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where land affected by a tree – where coconut palm overhangs neighbouring carpark – whether risk of serious injury – whether substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land – whether appropriate to make an order for removal of the tree pursuant to s 66 – where no material filed by respondent despite Directions to do so – where non-attendance by respondent at compulsory conference – where Directions made that if no Response filed by extended date matter would be determined on the basis of material filed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 48, s 50, s 57, s 59, s 66, s 70, s 71,
s 73, s 74

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 72

McHugh v Withers [2017] QCAT 346

Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

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

Introduction

  1. [1]
    This matter concerns a coconut palm, approximately 12-15 metres tall, which is on land owned by Catherine Thomson. The palm overhangs adjoining land which is owned by the Acacia Ridge Presbyterian Church (‘the Church’).
  2. [2]
    As the palm produces coconuts, the Church is concerned about the risk of injury to people and of damage to property, in particular to vehicles parked in the Church carpark. The Church claims that in 2014, a coconut fell and damaged the windscreen of a motor vehicle parked in the carpark. The Church has provided photographic evidence of a car with a coconut resting on a damaged windscreen. Ms Thomson did not accept the incident occurred and questioned why she had not heard from the Church at the time. The Church responded by saying that, at the time of the incident, two members of the Church had gone next door to see Ms Thomson about it, but, as her gates were locked, were unable to gain access to her premises. Since that incident, barricades have been erected in the Church grounds preventing access to the 3 or 4 carparks situated beneath the overhanging palm. I am satisfied on the evidence that the incident in 2014 occurred.
  3. [3]
    The Church would like the palm removed to avoid the risk of injury to people or of damage to property and to enable it to fully and safely utilise its grounds.

The history of the matter prior to coming to the Tribunal

  1. [4]
    The Church has made many attempts to negotiate a resolution with Ms Thomson concerning the palm.
  2. [5]
    By letter dated 26 May 2010, the Church asked that the palm be removed and offered to pay 50% of the cost to do so. On 2 December 2014 this offer was repeated and an alternative offer made that Ms Thomson have the coconuts securely netted so as to prevent them from falling. The netting option required that the nets be emptied and renewed from time to time, at least every 12 months. Ms Thomson replied on 31 December 2014 agreeing to have the palm netted every 2 years but only if the church paid half the cost. If the palm was ordered to be removed, Ms Thomson said she would be seeking an order that the Church pay for 12 mature bird attractive trees to be planted along the fence line to replace the coconut tree as well as nesting boxes to be placed on the roof of her shed for the benefit of any affected wildlife. The Church replied by re-iterating that the removal of the palm was the preferred option as the netting solution was only effective if done on an ongoing and regular basis (which Ms Thomson had not done in the past) and that it was not prepared to share the costs of the netting. Since then the Church has written to Ms Thomson a number of times asking that nuts be removed from the palm. Ms Thomson has not always responded to these requests. In March 2017 the Church initiated a mediation with the Dispute Resolution Centre however an invitation to participate in that mediation was ignored by Ms Thomson.
  3. [6]
    On 13 July 2017 the Church again wrote to Ms Thomson, this time offering to have the tree removed at its expense. There was no response. On 8 October 2017 the Church obtained an Arboricultural Tree Appraisal which recommended complete removal of the palm.

The matter in the Tribunal

  1. [7]
    On 15 December 2017 the Church filed an application for a tree dispute in the Tribunal seeking removal of the palm. Ms Thomson did not file a Response to the application, despite being directed to do so by 20 February 2018. Ms Thomson also requested and was granted successive adjournments of Directions Hearings scheduled for 22 February 2018 and 22 March 2018.
  2. [8]
    At the Directions Hearing of 5 April 2018, the matter was set down for a compulsory conference on 14 May 2018. Ms Thomson was also again directed to provide a Response to the application and a copy of any Arborist Report upon which she intended to rely. Ms Thomson did not comply with either Direction.
  3. [9]
    The compulsory conference proceeded on 14 May 2018. However Ms Thomson did not attend. No explanation was provided to the Tribunal for her absence. Following the conference Directions were issued giving Ms Thomson a further extension in which to provide a Response failing which the matter would be determined on the papers on the basis of material filed by that further extended date, that is, on the basis of material filed by 6 June 2018.[1]
  4. [10]
    No Response or any further material was received by 6 June 2018, nor indeed had been received by the date of this determination. Accordingly, the Tribunal is proceeding to determine the matter on the papers in accordance with the Directions.
  5. [11]
    I am satisfied in doing so that Ms Thomson has been afforded procedural fairness.[2] Ms Thomson was afforded adequate opportunity to file a Response and was given notice both of the compulsory conference[3] and that the matter might be finally determined in her absence if she did not attend.[4] It is noted that the Notice clearly notified Ms Thomson of this possibility, in contrast to the Notice provided in Moreton Island Development Group v Smith Development Pty Ltd.[5]
  6. [12]
    Section 72 of the QCAT Act provides that if a party does not attend a compulsory conference, the conference may proceed in the party’s absence and, if the parties present agree, a decision may be made adverse to that party. However, instead of determining the matter, the Tribunal gave Ms Thomson a further opportunity to provide a Response and notified her that if she did not provide the Response, that the matter would be determined on the papers. Section 32 of the QCAT Act provides that the Tribunal may, if appropriate, conduct a proceeding entirely on the basis of documents.
  7. [13]
    In those circumstances, and in view of the following factors, I am satisfied that it is appropriate that the matter be determined on the papers. Those factors include:
    1. (a)
      the relatively straightforward nature and scope of the dispute;
    2. (b)
      that there exists lengthy correspondence on the file from Ms Thomson to the Church which sets out her arguments against removal of the tree;
    3. (c)
      the length of time the tree has been an issue between the parties including its effect on the use of the land owned by the Church;
    4. (d)
      eight months have elapsed since the application was lodged in the Tribunal;
    5. (e)
      the Tribunal is not bound by the rules of evidence, may inform itself in any way it considers appropriate, and must act with as little formality or technicality and proceed as quickly as a proper consideration of the matters permits; and
    6. (f)
      the Tribunal notified the parties that this would be the case.[6]
  8. [14]
    I turn now to determine the application.

The law relevant to tree disputes

  1. [15]
    I have previously set out the relevant law with respect to tree disputes in McHugh v Withers.[7] I adopt that reasoning here.
  2. [16]
    QCAT has jurisdiction to decide any matter in relation to a tree if it is alleged, at the date of the application to QCAT, that land is affected by the tree.[8] The neighbour, whose land is affected by the tree, may apply for an order under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld) (‘NDA’).[9]
  3. [17]
    Neighbourhood disputes relating to trees are dealt with in Chapter 3 of the NDA.
  4. [18]
    Land is affected by a tree if it adjoins land on which the tree is situated and either:
    1. (a)
      it’s branches overhang the land; or
    2. (b)
      the tree has caused, is causing, or is likely within the next 12 months to cause –
      1. serious injury to a person on the land
      2. serious damage to the land or any property on the land; or
      3. substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[10]
  5. [19]
    Part 5, s 66 sets out the orders that QCAT may make.
  6. [20]
    However, before Part 5 can apply:
    1. (a)
      land must be affected by a tree; and
    2. (b)
      the neighbour must not be able to resolve the issue using Part 4.[11]
  7. [21]
    An example provided in the legislation as to when Part 5 might apply is where:

Branches from a tree overhang the neighbour’s land and the neighbour is seeking a remedy that is more than the cutting and removal of the branches.

  1. [22]
    Section 66 provides, relevantly, that QCAT may make the orders it considers appropriate to prevent serious injury to any person or serious damage to the land or property of the neighbour. Such an order may require the tree keeper to carry out work[12] on the tree which may involve removal of the tree.[13] The Tribunal may also make an order requiring the tree-keeper or neighbour pay for the costs of doing the work.[14]
  2. [23]
    Before making an order under s 66, I must be satisfied that:
    1. (a)
      The Church has made a reasonable effort to reach agreement with the tree-keeper (Ms Thomson);[15]
    2. (b)
      The Church has taken all reasonable steps to resolve the dispute under any relevant local law, local government scheme or local government administrative process;[16]
    3. (c)
      The branches of the tree extend at least 50cm over the Church’s land;[17]
    4. (d)
      The Church cannot properly resolve the issue using the process in Part 4;[18]
    5. (e)
      The Church has given a copy of the application to Ms Thomson.[19]
  3. [24]
    I am so satisfied.
  4. [25]
    In making a decision as to what the appropriate order should be in relation to the relevant tree there are certain matters I must consider.[20] There are also matters I may consider depending on how the neighbour alleges the tree affects the land.[21]
  5. [26]
    The primary consideration is the safety of any person.[22]
  6. [27]
    This is followed by s 72, which provides that a tree should not be removed unless the issue cannot otherwise be satisfactorily resolved. In my view, the issue will not be ‘satisfactorily resolved’ if, without the removal, there is a risk to the safety of any person.
  7. [28]
    The general matters I must consider are set out in s 73. They include:
    1. (a)
      The location of the tree in relation to the boundary of the land on which it is situated and any premises, fence or other structure affected by the location;
    2. (b)
      Whether the tree has any historical, cultural, social or scientific value;
    3. (c)
      Any contribution the tree makes to the local ecosystem, natural landscape and scenic value of the land or locality;
    4. (d)
      Any contribution the tree makes to public amenity;
    5. (e)
      Any contribution the tree makes to the amenity of the land on which the tree situated;
    6. (f)
      The likely impact on the tree of pruning it; and
    7. (g)
      Other matters.
  8. [29]
    In making an order to remove a tree I may also consider any steps taken to prevent the likelihood of injury or damage,[23] or any other matter I consider relevant.[24]

Consideration

  1. [30]
    I am satisfied that the threshold requirements in s 59 have been satisfied. The Arboricultural Tree Appraisal states that the canopy of the tree is 4 metres. The tree is on or against the boundary and from photographs appears to extend over the Church’s land by 1 to 2 metres. This is sufficient to satisfy the requirement that the land be affected by a tree.[25]
  2. [31]
    I also find that the tree is likely within the next 12 months to cause serious injury to a person on the Church’s land or serious damage to its land or property. Coconut palm nuts have fallen from the tree and, in one case, fallen on a motor vehicle parked in the Church carpark, causing damage. The Church also complains of other debris falling from the tree, including palm fronds. The risk of harm to people or of further damage being caused to property has meant that the Church has barricaded the affected carparks so that the public can no longer use them. The barricades would not have been erected if the Church was not concerned about the risk and its duty of care as occupier. It is, in my view, no answer, to argue as Ms Thomson has done, that the barricades have ameliorated any risk or that there are other carparks which can be used. It is not the responsibility of the adjoining land owner, affected by the tree, to put in place measures to avert risk. This is, by s 52(2) of the NDA, clearly the responsibility of the tree-keeper, Ms Thomson.[26] In any event, the ‘solutions’ which involve maintaining barricades on the affected land or using other car parking spaces, are an unreasonable restriction on the use and enjoyment by the Church of its land.[27]
  3. [32]
    I am also satisfied that this is not a dispute that can be resolved using Part 4. This is because Part 4 establishes a process for resolving disputes relating to branches 2.5 metres or less above the ground. This tree is approximately 12 to 15 metres in height and Part 4 therefore has no application.
  4. [33]
    Having been satisfied the ‘gateway requirements’ in s 59 have been met, I turn now to consider what order should be made.
  5. [34]
    Pursuant to s 66(2), the Tribunal may, relevantly, make an order it considers appropriate in relation to the relevant tree to:
    1. (a)
      prevent serious injury to any person; or
    2. (b)
      to remedy, restrain or prevent –
      1. prevent serious damage to the neighbour’s land or any property on the neighbour’s land; or
      2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
  6. [35]
    In my view, both limbs of s 66(2) are relevant in this case. There is a clear risk of serious injury to a person or to property from nuts falling from a 12-15 metre height. The tree extends over the carpark and, as is evident from photographs and the Arborist Report, its weight bias is towards the Church’s carpark.[28] The crown is mature and spans approximately 4 metres bearing potentially 20 to 30 coconuts. The rate of fruit production would increase with age.[29]
  7. [36]
    There has been interference with the use by the Church of its carpark at least since 2014, when damage was caused to a motor vehicle from a nut falling from the tree. From the time of that incident, the Church has prevented use of the car spaces potentially affected by falling debris and nuts from the tree. This, in my view, is a clear interference with the use or enjoyment of the Church’s land. It is also substantial, in that it has effectively been prevented from using the affected land, it is ongoing having persisted since at least 2014 and is, in my view, unreasonable.
  8. [37]
    I am not satisfied that the palm has any historical, cultural, social or scientific value. Ms Thomson argues that the palm has significant value ‘given that no coconut trees are reported to have fruited any further south than Rockhampton’.[30] The Church have responded by referring to online gardening forums which it says suggest that coconuts fruit at least as far south as Byron Bay in New South Wales. Even if I was to accept that the palm is unique because palms do not usually fruit in Brisbane, it is not enough, in my view, to give it scientific value, nor is it enough to mean a removal order should not be made given the other factors I have already mentioned.
  9. [38]
    The tree is also of limited aesthetic value. It buts up against the fence (to the point where part of the wooden boundary fence has been cut to accommodate the tree), curves over the Church’s land and is a stand-alone tree not part of any other garden or in the company of any other trees or plants. The tree does not contribute to privacy due to its height and structure and provides minimal shade.
  10. [39]
    The previous maintenance, including netting of the tree, is also a factor I have taken into account. The evidence shows that Ms Thomson has not always responded to requests from the Church to maintain the tree and indeed Ms Thomson suggests that netting every two years would be sufficient. The Church claim Ms Thomson has netted the tree only twice in seven years. I am not satisfied, in the circumstances, that an order requiring Ms Thomson to undertake yearly netting would satisfactorily resolve the issue.[31]
  11. [40]
    Ms Thomson has also suggested in correspondence to the Church that they replace the palm with 12 other trees. This indicates that Ms Thomson was at some time agreeable to the removal of the palm provided something was planted to replace it. This tends to undermine her argument that the palm is of ‘significant value’.
  12. [41]
    On balance, I am satisfied that the tree must be removed. Section 71 of the NDA provides that ‘the primary consideration is the safety of any person.’ In my view, the palm presents an unacceptable risk of serious injury to those using the Church grounds.
  13. [42]
    For all the reasons I have outlined above I make the following orders:
    1. (a)
      Catherine Thomson must arrange for the removal of the coconut palm situated on 376 Mortimer Road, Acacia Ridge and which overhangs 372 Mortimer Road, Acacia Ridge.
    2. (b)
      Catherine Thomson is responsible for the cost of the removal.
    3. (c)
      The removal must be completed within 45 days of the date of this order.

Footnotes

[1] Directions of the Tribunal, dated 22 May 2018.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 28(3)(a).

[3] QCAT Act, s 72(2).

[4] Notice of a Compulsory Conference forwarded to Ms Thomson, dated 9 April 2018.

[5] [2012] QCATA 15, [51].

[6] QCAT, s 28(3)(b)-(e).

[7] [2017] QCAT 346, [7]-[19].

[8] NDA, s 61.

[9] NDA, 62(1).

[10] NDA, s 46.

[11] NDA, s 59.

[12] NDA, s 50 defines work on a tree to include destroying the tree.

[13] NDA, s 66(5)(a).

[14] NDA, s 66(5)(e).

[15] NDA, s 65(a).

[16] NDA, s 65(b).

[17] NDA, s 65(c)(i).

[18] NDA, s 65(c)(ii).

[19] NDA, s 65(d), s 63(1)(a).

[20] NDA, s 73. These matters are not to limit the matters the Tribunal may consider: NDA, s 70(2).

[21] NDA, ss 74-75.

[22] NDA, s 71.

[23] NDA, s 74(1)(b).

[24] NDA, s 74(2)(d).

[25] NDA, s 46.

[26] See also NDA, s 41.

[27] NDA, s 46(a)(ii)(C).

[28] Arboricultural Tree Appraisal, dated 8 October 2017, 7.

[29] Ibid.

[30] Letter from Ms Thomson to the Church, dated 31 December 2014.

[31] NDA, s 72.

Close

Editorial Notes

  • Published Case Name:

    Acacia Ridge Presbyterian Church v Thomson

  • Shortened Case Name:

    Acacia Ridge Presbyterian Church v Thomson

  • MNC:

    [2018] QCAT 300

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    03 Sep 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
McHugh v Withers [2017] QCAT 346
2 citations
Jump To
Cite 1 - [2017] QCAT 346
Cite 2 - [2017] QCAT 346
Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15
2 citations
Jump To
Cite 1 - [2012] QCATA 15
Cite 2 - [2012] QCATA 15

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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