McLachlan v Williams[2018] QCAT 371

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this Application about?

1. [1]
   The Tribunal cannot grant relief to parties without proper evidence.
2. [2]
   On 1 June 2018, the Applicant Margo McLachlan wrote to the Tribunal stating that she had provided ‘all the necessary information on events and evidence and wish to proceed with obtaining a determination on the papers’.^[1]
3. [3]
   Unfortunately for the Applicants, the evidence they have filed does not address essential prerequisites before the Tribunal can grant relief under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
4. [4]
   In particular, the application must fail because of:

   1. No evidence of the size, health, maturity and stability of the trees to determine whether they are a safety risk;
   2. No evidence of the alleged incidences of branches falling, the size of the branches claimed to have fallen, including when and how they fell and the frequency;
   3. No evidence of any link between the alleged incidences of branches falling and any sever weather events and the nature and type of weather event;
   4. The applicants’ statement of their intent to install solar panels on their roof is not sufficient to establish interference from obstruction of sunlight – obstruction of sunlight only applies if the obstruction is a severe obstruction of sunlight to a window or roof;^[2] 
   5. No evidence of how the alleged blocking of sunlight constitutes a substantial, ongoing and unreasonable interference, including light meter readings and evidence of shading on a window or roof;
   6. No evidence of how the dropping of litter and debris constitutes a substantial, ongoing and unreasonable interference given that:

This Tribunal has determined that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree. That approach is consistent with a recent decision of the Court of Appeal in Graham & Ors v Welch.^[3] 

7. No evidence of how the alleged blocking of gutters, downpipes and drains has caused ‘serious damage’ to the applicants’ house and how the alleged blocking is not the result of the ‘natural incidence of a suburban landscape that includes trees’.^[4]

5. [5]
   The primary concern is the safety of any person.^[5] However, the applicants presented no independent expert evidence of the risks posed by any specific trees that are the subject of the application.
6. [6]
   Without expert evidence of causation or the likelihood of injury or damage, the Tribunal is unable to find that the trees are likely to cause serious injury or damage within 12 months.^[6]
7. [7]
   Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of ‘likely’ is probably or reasonably to be believed or expected. The applicants said they are ‘unsure as to the stability and safety of the trees during adverse weather events.’^[7] That is not sufficient to meet the threshold of ‘likely’.^[8]
8. [8]
   Upon considering all these matters, I am not satisfied that the applicants have established that the trees are likely to cause serious injury or damage to their land or property on their land within the next 12 months or that they constitute a substantial, ongoing and unreasonable interference.
9. [9]
   The appropriate order is that the application is dismissed.