Oze v Samuels[2020] QCAT 447

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Oze and Mr and Mrs Samuels (the Samuels) are neighbours.
2. [2]
   Ms Oze commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).^[1] Essentially Ms Oze claims that there are eight palm trees (the Trees) located near the common boundary, which should be ordered to be removed at the Samuels’ cost.  Alternatively, she seeks an order that she is entitled to remove all the fronds from the Trees, which overhang her property.
3. [3]
   The Samuels contend that the application should be dismissed.  In their Response^[2] they sought orders for reimbursement of their costs including wages lost due to time taken off work.  There was no evidence before me in respect of such claims and I do not consider them further.
4. [4]
   Ms Oze claims the Trees:

   1. (a)
      are likely to cause serious injury to a person or to her land or property on her land within the next 12 months;
   2. (b)
      cause substantial, ongoing unreasonable interference with her use and enjoyment of her land;
   3. (c)
      cause an obstruction of sunlight. 

5. [5]
   She says the Trees:

   1. (a)
      have damaged her car;
   2. (b)
      shade her roof so that it is uneconomic to install solar panels because the panels would operate inefficiently;
   3. (c)
      shade the northern windows to her house so that it is cold in winter, which increases her electricity consumption and costs;
   4. (d)
      are adversely affecting her ability to have a dividing fence constructed on the boundary and have caused the asbestos fence to move or lean;
   5. (e)
      drop nuts, which block her gutters;
   6. (f)
      drop their fronds from a great height, which she has to clean up and which potentially could hurt her children and herself and further damage her car;
   7. (g)
      drop nuts, which her dog eats and becomes ill.

6. [6]
   Mr Cockram provided a Tree Assessor’s report.^[3]

Have the pre-requisites of the ND Act been satisfied?

7. [7]
   I am satisfied that Ms Oze 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.

Should an order be made?

8. [8]
   I am not satisfied, on the balance of probabilities, that Ms Oze is entitled to an order under the ND Act for the reasons set out below.
9. [9]
   Ms Oze is the applicant and bears the onus of establishing on the balance of probabilities her entitlement to orders under the ND Act.
10. [10]
    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.

11. [11]
    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]
12. [12]
    The Tribunal has broad powers to make an order it considers appropriate about a tree to:

    1. (a)
       prevent serious injury to any person;^[8]
    2. (b)
       remedy, restrain or prevent serious damage to Ms Oze’s land or any property on her land;^[9] or
    3. (c)
       remedy, restrain or prevent substantial, ongoing and unreasonable interference with Ms Oze’s use of her land.^[10]
13. [13]
    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.^[11]
14. [14]
    The parties accept that seven of the eight Trees are ‘self-cleaning’ Alexander palms, so that fronds are automatically shed by the trees.  The evidence is that the Alexander palms are in the range of 11 to 14 metres tall and the other tree, a Cuban royal palm, is in the range of 8 to 9 metres tall.  Ms Oze is concerned about the potential damage and the noise associated with fronds falling from such a height.
15. [15]
    Ms Oze says that her car was damaged by a frond hitting her car while in her driveway.  There is limited evidence as to the damage and the circumstances of it occurring including when it occurred.  Ms Oze has produced a photograph of her car. There appears to be some damage to the paint.  She contends she received a quote to respray the damage in the sum of $285.^[12]  A copy of the quote is not in evidence before me and therefore the Tribunal and the Samuels have not had an opportunity to consider the reasonableness or otherwise of the quote. Her evidence is that she has not yet had the damage repaired as she was awaiting the outcome of this proceeding.
16. [16]
    Even if I accept that the damage was more likely than not caused by a frond dropping from one of the Trees and that the reasonable cost of repair is $285, about which there is some doubt due to the limited evidence, I am not satisfied that such damage could be said to be ‘serious’.  By using the phrase ‘serious damage’ the Parliament clearly intended that not all damage would be sufficient to trigger entitlement to orders.
17. [17]
    Ms Oze also contends that there have been a couple of fronds which have dropped into her driveway while she was in it, which she essentially describes as near misses in terms of hurting her.  There is also limited evidence as to these occasions.
18. [18]
    Ms Oze’s evidence was that the debris from the Trees was such that she was required to regularly clean up and that this was a substantial, ongoing and unreasonable interference. She estimated that she paid for her gutters to be cleaned twice in the time between moving into her property in early 2018 and the hearing on 12 October 2020 and had expended on average approximately two hours every month to six weeks cleaning up.  She says, and the Samuels do not dispute, that the fronds drop more often in summer than during winter. 
19. [19]
    Her evidence was that 28 fronds fell into her property in the period from 2 September 2019 to 21 June 2020.^[13]  The dates on the photographs indicate as follows:

    1. (a)
       September 2019 – 3;
    2. (b)
       October 2019 – 6;
    3. (c)
       November 2019 – 8;
    4. (d)
       January 2020 – 4;
    5. (e)
       February 2020 – 1;
    6. (f)
       March 2020 – 4;
    7. (g)
       April 2020 – 1;
    8. (h)
       June 2020 – 1.
20. [20]
    The Samuels attempted to cast some doubt on this number.  Their evidence is that Mr Samuels regularly removes fronds and pods before they drop but accept that some do drop into Ms Oze’s yard, particularly during summer.  Mr Samuels’ evidence was that only one frond had dropped in the last three months.
21. [21]
    On many occasions the Tribunal has found that tree debris will not justify an order unless there is a finding that the debris is excessive.^[14] I am not satisfied that a requirement to have gutters cleaned twice in a period of more than two years and expend on average two hours cleaning up every month to six weeks is excessive.  I am also not satisfied that being required to pick up up to eight fronds a month and place them in the Samuels’ yard is excessive.
22. [22]
    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.^[15]
23. [23]
    Ms Oze pointed to photographs indicating the Trees shaded the northern side of her home.^[16]  The Tribunal has previously found that a severe obstruction is one that must be considerable.^[17]
24. [24]
    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.
25. [25]
    Mr Cockram’s opinion is that the Trees:

    1. (a)
       are healthy and falling fronds onto Ms Oze’s land are not likely to cause any serious consequences;
    2. (b)
       are currently not a major contributor to the alleged obstruction to sunlight;
    3. (c)
       form part of the Samuels’ landscaped gardens enhancing their property’s amenity, shade and privacy.

26. [26]
    He recommended that the Samuels should continue to prune the Trees and remove seed pods as they develop to minimise debris and self-seeding and for Ms Oze to continue to return fallen fronds to the Samuels’ property.  He did not recommend that they be removed.  I accept Mr Cockram’s independent evidence.
27. [27]
    The evidence is that there is a carport on the northern side of Ms Oze’s home, which I find is contributing to the shading of Ms Oze’s northern windows.
28. [28]
    On the evidence before me, I am not satisfied the obstruction of sunlight by the Trees is severe.
29. [29]
    I am required to consider various matters including the contribution to amenity the trees make to the Samuels’ land including their contribution to privacy.^[18]
30. [30]
    The evidence is that the Trees were planted many years ago by a previous owner of the Samuels’ property, well before Ms Oze purchased her property in 2014.  Mr Cockram estimated they were between 30 to 40 years old. 
31. [31]
    A factor the Tribunal has previously taken into account is whether the Trees pre-date the installation of solar panels.  In this case, the panels have not yet been installed.  This is a factor in favour of not making an order.  The undisputed evidence is that Ms Oze purchased her property as an investment property in 2014 without personally inspecting it.  This is a factor in favour of not making an order. 

32. [32]
    Ms Oze and the Samuels are also in dispute about the dividing fence, which is the subject of separate Tribunal proceedings. 
33. [33]
    An identification survey is in evidence, which shows that the existing fencing is not on the boundary line.  Ms Oze says the Trees are causing the old asbestos fence to move/lean and that because the Trees are very close to the true boundary line she is concerned that:

    1. (a)
       the Trees’ root systems may impact the ability to place a fence along the true boundary;
    2. (b)
       if the Trees’ root systems are disturbed in removing the old fencing and placing a fence along the true boundary line this will affect the Trees’ health;
    3. (c)
       if a fence is able to be placed along the true boundary line that it will be damaged in particular by the Trees’ roots and by trunk growth in the coming years.
34. [34]
    Ms Oze says these are reasons why the Trees should be removed.
35. [35]
    Mr Cockram recommended that further evidence be obtained in relation to the proposed removal of the asbestos fence and realignment of the colourbond fence to the correct boundary line, in particular the obtaining of an identification survey.  His evidence was that the asbestos fence could be removed and the colourbond fence realigned unless the latter was well off the boundary given his measurements.   
36. [36]
    The identification survey subsequently obtained showed that the colourbond fence was not on the true boundary line and that it encroaches by between 0.23 metres and 0.55 metres onto Ms Oze’s land.^[19]  Mr Cockram was not required by the parties to attend the hearing to clarify his opinion given the survey results nor did either of the parties obtain any written clarification from Mr Cockram.   
37. [37]
    Ms Oze points to Mr Cockram’s report, to the identification survey and the photographs of the survey pegs, as evidence of the proximity of the Trees to the true boundary line.  She says that the root system as a rule of thumb is approximately twice the diameter of the trunk and therefore would encroach under the true boundary line, where the fence should be placed.  Ms Oze submits she is not an arborist. She does not submit that she has any relevant qualifications. There is no direct evidence from an arborist or a relevantly qualified witness about the usual size of the root system for the Trees. 
38. [38]
    There is no direct evidence from an arborist or a relevantly qualified and experienced contractor about the difficulty of constructing a fence on the true boundary line nor is there any evidence of the harm, which may occur to the Trees or to a fence placed on the true boundary line nor the timeframe for any likely harm. 
39. [39]
    Ms Oze has submitted a quote from an asbestos removal contractor, which states that they require a minimum of 400 mm either side of the asbestos fence for excavation.^[20]  No statement of evidence was before the Tribunal from that contractor and no one from that contractor was made available to be questioned by the Tribunal or by the Samuels. 
40. [40]
    There is insufficient evidence before me to be satisfied that Ms Oze’s concerns are well founded.
41. [41]
    Ms Oze referred the Tribunal to Young v Salmon^[21] in which it was ordered that palms within one metre of the boundary were to be removed and for the tree-keeper to carry out cleaning to remove all overhanging fronds and fruiting material of any palm within one metre of the northern and eastern boundaries every six months at the time the palms begin to fruit.  In that case, the arborist recommended that the 10 cocos palms within one metre from the boundary be removed and that the palms near the boundary be cleaned of fruiting material every six months.  There was also evidence from Biosecurity Queensland that recommended cocos palms be removed where possible and if it was not possible, they should be managed so that the fruits were removed before they ripen.  The learned Member accepted this evidence.  As stated earlier in these reasons, Mr Cockram does not recommend the removal of the Trees and recommended ongoing pruning/removal of the seed pods by the Samuels but did not specify particular intervals.
42. [42]
    I am not satisfied that the Trees ought to be ordered to be removed. 
43. [43]
    In the alternative, Ms Oze contends that she wishes to be allowed to remove any over-hanging fronds if the Samuels do not.  There is no direct evidence from an arborist about the structural and health consequences to the Trees of removing up to half of each of the Trees’ heads.  I am not satisfied that I should make such an order.