Smithies v Lowe[2020] QCAT 437

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr and Mrs Smithies (‘the Smithies’) and Mr and Mrs Bonomo (‘the Bonomos’) own residential properties to the west of and adjacent to a property owned by Mr and Mrs Lowe (‘the Lowes’).
2. [2]
   There are lemon myrtle trees planted just inside the Lowes’ property.
3. [3]
   Mr and Mrs Smithies have lived at their house for some time. They purchased in 2002 and there were no lemon myrtle trees planted next door then. The Bonomos have not lived in their property long, nor have the Lowes. The Lowes purchased their house with the lemon myrtle trees in 2017.
4. [4]
   Both the Smithies and the Bonomos have complained about the lemon myrtle trees (‘the trees’) to the Lowes. Given the trees have not been reduced in height the Smithies and the Bonomos have both made separate applications for tree disputes in the Tribunal.
5. [5]
   Given the trees are a common issue in dispute and the respondents are common to both matters the matters were heard together.

The Smithies’ complaints

6. [6]
   The Smithies have mainly worked in outback Queensland and therefore away from their Brisbane property for some time. When they retired and came back to the Brisbane property in 2017 they discovered the trees had grown high.
7. [7]
   The Smithies complain that the height and density of the trees block the morning sunlight and throw the downstairs rooms into shade and those rooms are dark and cold, especially the family room and kitchen. The complaint about the interior being cold presumably applies to the winter months only.
8. [8]
   They also claim the trees have blocked a view they once enjoyed across to the other side of Gympie Road. That view has been lost from rooms both upstairs and downstairs. They claim that that view was unimpeded when they bought their house.
9. [9]
   Then in summer the trees block effective air movement, making the whole house hotter. They also complain about leaf litter fallen in their garden from the trees.
10. [10]
    The shading trees they say have impacted plant growth in their back yard.
11. [11]
    They understand the Lowes like the trees because they were grown to provide privacy but the Smithies say the dividing fence between the properties is high enough to provide privacy and perhaps something more suitable should be planted along the fence line to replace the trees.
12. [12]
    They would like the trees trimmed down to 500mm above the dividing fence.

The Bonomos’ complaints

13. [13]
    The Bonomos say the trees are approximately nine metres tall and are not being adequately trimmed or maintained. They complain about branches falling into their garden and leaf litter from the trees falling into their yard. The Bonomos say they fear falling limbs.
14. [14]
    They have to wear shoes in the entertainment area outside and in walkways because the leaf litter is sharp on their feet. They complain about having to constantly clean up the leaf litter.
15. [15]
    The clothesline is in the shade and the clothes take a long time to dry.
16. [16]
    Rats are attracted to the trees and they leave a lot of droppings in their back yard, which the Bonomos find objectionable. Before they let their small son play outside they have to clean up the yard from the sharp prickly leaf litter and the rat droppings.
17. [17]
    The trees tower over their roof and block the morning sun from entering the rear of their house, in particular the rear lounge/TV room windows and the roof. The trees also shade the rear upstairs children’s bedroom window. The shade thrown by the trees prevents natural heating in the house which necessitates expensive use of heaters adding to the costs of energy bills (again, presumably in winter).
18. [18]
    The Bonomos also say the trees are not necessary for privacy. The dividing fence is enough. They want the trees trimmed down to the fence height and maintained at that height.

The Lowes

19. [19]
    The trees line the access driveway into their property. They have provided a statement of evidence from the previous owners of the property they bought from who say the trees were planted in 2002 as part of a fully landscaped garden intended to have a surround of native Australian trees. The trees were grown with the intention of giving privacy from the many townhouses constructed adjacent.
20. [20]
    The Lowes purchased in 2017. The trees were at their present height then and they bought without any idea the trees were a problem for neighbours.
21. [21]
    The Lowes claim they do some weekly maintenance around their property but it seems clear they do not want the trees reduced significantly in height, and any reduction to be controlled and done over some significant period of time.

The legislation

22. [22]
    Many of the complaints made by the Bonomos and a number of the complaints made by the Smithies are not actionable matters of complaint under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
23. [23]
    The Act applies when land adjoining the land on which a tree grows is affected by the tree and the neighbours cannot resolve the issue between them. Land can be affected by a tree under the Act in a number of ways.
24. [24]
    By section 46 of the Act, land is affected by a tree if, amongst other things, branches from a tree overhang the land or the tree has caused, is causing, or is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land. Land is also affected by a tree if it causes substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[1]
25. [25]
    Complaints by the Bonomos such as a lot of leaf litter, or having to wear shoes in the entertainment area outside and in walkways because of sharp leaf litter, or a clothesline being in shade and the clothes taking a long time to dry, or rats being attracted to trees leaving behind them a lot of droppings in the neighbour’s back yard are not matters that can be relied upon to claim that a tree or trees are affecting the neighbour’s land.
26. [26]
    The Bonomos’ fear of falling limbs does not seem to be based on actual experience of limbs falling into their garden, but simply the possibility of that occurring disconcerts them.
27. [27]
    The Smithies similarly complain about leaf litter fallen into their garden from the trees impacting on their lifestyle and the use of their back garden restricting where their grandchildren can play.
28. [28]
    These are not valid complaints actionable under the Act without consequent and significant damage being shown to be caused before it can be said to amount to ongoing and unreasonable interference with the use and enjoyment of land.^[2]
29. [29]
    There is no entitlement provided by the Act to a perfect lifestyle. These matters of complaint are the other side of the equation to the benefits derived from numerous people living together in green leafy suburbs, which is considered a very desirable thing.
30. [30]
    By s 66 of the Act, the tribunal may make orders considered appropriate in relation to a tree affecting the neighbour’s land to remedy or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. Where the interference is claimed to be obstruction of sunlight the obstruction must be severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.
31. [31]
    Where the interference alleged relates to obstruction of a view, the obstruction must be a severe obstruction of a view that existed when possession of the land was taken by the neighbour and the trees obstructing the view rise at least 2.5 metres above the ground.
32. [32]
    The Smithies bought their property in 2002. Their evidence is that the trees were not present in 2002 (save for the Liquidambar) and their view was good for approximately one to 1.5 kilometres to the other side of Gympie Road. Their claim that the trees were not planted when they purchased is supported by the previous owner to the Lowes’ property. Ms Wiemers, the previous owner, also refers to the trees being planted in 2002.
33. [33]
    Both the Bonomos and the Smithies complain that the height and density of the trees cause obstruction of sunlight. Sunlight into rooms in their homes is blocked by the trees.
34. [34]
    The Smithies say the trees block morning sunlight to the downstairs rooms of their home causing them to be darker and colder, especially the kitchen and family rooms, which they describe as the hub of the house. Further they say the trees affect the two back bedrooms causing them to be darker and colder and necessitating the running of air-conditioning in the colder months to warm the rooms, whereas, before the trees grew to interfere with the sunlight, the sun warmed up that part of the house.
35. [35]
    The Bonomos say the trees tower over their roof and block the morning sun from the rear of their house, especially the rear lounge/TV room windows and the roof. They also shade the sunlight from the rear upstairs children’s bedroom window and prevent natural heating in the home requiring them to use heaters to warm the house.

The Arborists

36. [36]
    The Lowes failed to comply with directions made by the Tribunal to contribute to an independent arborist report for consideration by the Tribunal.
37. [37]
    In consequence the Tribunal directed the applicants to engage their own arborist to provide reports and unless otherwise ordered the arborist reports obtained by the applicants would be the only expert evidence in the proceedings. I therefore consider only the arborist reports filed by the Smithies and the Bonomos in these matters.
38. [38]
    Tim Scott of Tim the Tree-Man Pty Ltd is an AQF (Australian Qualifications Framework) Level 8 arborist and he has provided the Smithies with a report.
39. [39]
    Mr Scott notes his instructions from the Smithies are that they have restricted views from their property, loss of sunlight and airflow and excessive shade on winter mornings.
40. [40]
    He notes the relevant trees are one Liquidambar at the southern end of the hedge and twelve lemon scented myrtle trees.
41. [41]
    The arborist notes the Liquidambar is approximately eight metres in height currently and has a spread of approximately four metres. Its vitality is fair but its structure only fair to poor. He notes it has previously been incorrectly pruned approximately four metres above the fence. These trees can grow very large, 18 to 25 metres high. He describes it as a poor specimen of the species. He notes the tree is impacting on the boundary fence and causing damage to the fence.
42. [42]
    In respect of the lemon scented myrtle trees, they are approximately 6.4 to 7.1 metres in height and have a spread of approximately two metres. They have good vitality and good structure with dense canopies.
43. [43]
    He notes he was advised by the Smithies that the trees cause severe obstruction of sunlight to the living and kitchen area of their home and they told him on the northern side of that home a lavender hedge was established and as the height of the neighbours’ trees grew the lavender hedge declined to a point where it died.
44. [44]
    The arborist described the trees as forming a thick wall with conservatively 85% visibility obscured out of the windows on both levels of the house.  Without the lemon scented myrtles he states the view would be clear to the north for approximately two to three kilometres and to the east approximately 800 metres. That vista would take in homes and trees in the surrounding suburbs.
45. [45]
    He also observes the airflow to the home has been significantly affected by the height of the lemon scented myrtles causing a screening effect.
46. [46]
    The arborist recommends reducing the height of both the Liquidambar and the lemon scented myrtles and maintaining that reduction. He notes lemon scented myrtle is a species that can withstand hedging. With respect to the Liquidambar, though it is a large tree, in the past it has been topped and a reduction/heading prune could again be undertaken to reduce the height of this tree.
47. [47]
    He concludes that mitigation as suggested is appropriate because the views from the home, airflow and natural light into the home are significantly affected.
48. [48]
    He recommends lowering the trees to hedge height including the Liquidambar tree and the hedge running along the rear of the tree keepers’ land to just above the height of the dividing fence with the Smithies’ land where it can be managed on a yearly basis to retain the views and limit natural lighting problems to the dwelling. He suggests a pruning height above the Smithies’ fence of approximately 500 mm.
49. [49]
    The Bonomos engaged Arbor Operations, Peter Mumford, to give a report. Mr Mumford has a Diploma of Horticulture (Arboriculture). It is not clear what that means in respect of AQF Level, but perhaps Level 5.
50. [50]
    This arborist conducted a visual inspection of the nine lemon scented myrtle trees between the eastern boundary of the Bonomos’ land and the Lowes’.
51. [51]
    He describes the trees as being of fair health and form with tall erect canopies shaped by hedging on the western side. They are approximately eight metres tall. They have previously been “topped” or height reduced.
52. [52]
    He notes the crown height of the trees increases the amount of shade cast into the rear courtyard of the Bonomos’ property in the mornings.
53. [53]
    The trees are not threatened or endangered species. He observed no significant hollows representing valuable habitat for fauna. He noted the trees provide significant screening for the Lowes’ property.
54. [54]
    He recommends retaining the trees but reducing their height and maintaining them as a hedge. He notes regular maintenance is required to ensure emergent growth doesn’t return to the current height. He recommends reducing them to fence height. He does not say how often that hedging should be done.
55. [55]
    He notes the maintenance should be done by an appropriately qualified AQF Level 3 arborist.
56. [56]
    I accept that the Liquidambar tree and the lemon scented myrtle trees affect both sets of applicants’ properties by causing substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of the land by causing severe obstruction of sunlight to windows and roof of the applicants’ homes.
57. [57]
    In respect of the Smithies I find the lemon scented myrtle trees have caused severe obstruction of a view that existed when they first took possession of their land.
58. [58]
    I accept the recommendations by the arborists that the lemon scented myrtle trees should be lowered and too the Liquidambar tree.
59. [59]
    The cost of that must be borne by the tree keepers, the Lowes. The arborists differ with respect to recommended pruning height. Mr Scott recommends reducing all the trees affecting the Smithies’ property to a height approximately 500mm above the fence line. He states that would ameliorate the problems he identified of restriction of view and unreasonable interference of sunshine to windows.
60. [60]
    Mr Mumford recommends pruning to the height of the fence at the Bonomo property but that is based on minimising the shedding of nuisance “flower bell-shaped receptacles” onto the Bonomos’ land. As stated however, leaf litter alone is no basis for an order by the Tribunal to prune the offending trees.
61. [61]
    Additionally I note the Bonomos’ fence line is approximately 200mm lower than that of the Smithies. If the different recommendations about height are followed  that would result in a distinct and perhaps aesthetically displeasing multi-level hedge jumping up where it meets the Smithies’ property by approximately 700mm. I conclude that is unnecessary. I have no information about it but anticipate it would unnecessarily increase the cost of regular maintenance which the Lowes must bear as tree keepers. I am not persuaded it is appropriate in the circumstances.
62. [62]
    I conclude what is appropriate is to reduce the trees uniformly along the fence line of both sets of applicants’ properties by pruning the trees to a uniform height measured by reference to the Smithies’ fence of approximately 500mm above that fence. That would resolve the issue of unreasonable interference of both view and severe obstruction of sunlight to windows for the Smithies and severe obstruction of sunlight for the Bonomos. Effectively the trees should be pruned at 700mm above the Bonomos’ fence to achieve uniformity.
63. [63]
    The hedging should thereafter occur annually, as stated at the cost of the tree keepers, the Lowes. The arborist for the Bonomos says a level 3 arborist doing the work is sufficient and I order accordingly.