Lukic v Perera[2020] QCAT 515

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Lukics and the Pereras own adjoining suburban properties.
2. [2]
   On 8 November 2018  Mr and Ms Lukic filed an amended application to commence  proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). Mr and Ms Lukic claimed  that bamboo (the Trees) from the respondents property had infiltrated their yard and was causing damage to the yard itself and lawns. The applicants said that they had been aware of the damage since 2017 and that the  bamboo had now been removed from the respondent’s property but was still affecting their property. They described the damage as extreme and continuing. The Lukics sought from the tribunal orders that (i) the respondents pay compensation to the applicants for damage to their land or property in the amount of $3955.87 and (ii) that the respondent pay the costs of carrying out the tribunal’s orders. 
3. [3]
   The Pereras  submit that the application should be dismissed.  They are seeking orders that (i)  they are not liable to pay any invoices sent to them by Merlot Residential Australia, (the management company for the Lukics’ rental property ); (ii) there be an agreement that both parties maintain their own back yards and (iii) there is no ongoing issue. It was also the evidence of the Pereras that their  property is “100% bamboo free”.
4. [4]
   In their amended application the Lukics claims the Trees:

   Did not  cause serious injury to a person however they also state that  the Trees caused  injury in the past  and now.

   Did  cause serious injury to their land or property. They describe this damage as in the past and continuing.

   Did cause substantial, ongoing unreasonable interference with their use and enjoyment of their land. This interference was characterised as the bamboo shoots in their yard causing a tenant to vacate the property “due to not being able to  use the backyard” and loss of rent experienced by the Owner due to the tenant vacating.

5. [5]
   In their application the applicants claimed that  the respondents has done nothing about the problem however they also stated  that  the respondents removed  “some of the bamboo”.

Legislative Pre-requisites

6. [6]
   I am satisfied that Mr and Ms Lukic has complied with all 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.

Tree Assessor’s Report 

7. [7]
   Mr Inman provided a Tree Assessor’s report.^[1]All parties were notified  by the tribunal of the inspection date. Despite this notification neither the applicants and/or their agent attended, and it appears that they had had not advised the tenants at the relevant property that the inspection was occuring. As a consequence of the applicant’s failure, when Mr Inman arrived the applicants’ property it was unable to be accessed due to an unrestrained dog. There was no owner present to control the dog. The  inspection went ahead without access to the applicants’ property. The respondents were present. They indicated that they had  purchased the property about six years ago,  they said that at that time the area around them was vacant. The respondents alleged that the area was infected by invasive bamboo prior to their purchase. They stated that there was one area in the Southwest corner of the property ,on the small retaining wall, that had some bamboo. They denied planting bamboo. They said in any event the bamboo was removed by them approximately 2 years ago when it was cut, poisoned and then dug out.
8. [8]
   Mr Inman’s report indicates that he felt all the jurisdictional requirements of the ND Act  were met. He described the Trees as the area  containing a small garden bed located at the back of the respondents’ property. He found no visible bamboo  within the area. He considered that the type that bamboo that may have been there before removal was called running bamboo.
9. [9]
   In response to questions as to whether the applicants’ land was affected by the Trees, he answered no to all these questions. These questions are based on the criteria in section 46(a) and (b) of the ND Act . In summary he could find no evidence of previous tree or tree part failures and any consequences from those; no injury caused or likely to be caused by the trees; no serious consequences of the presence of any trees and answered  no to the question of whether the trees would be likely have caused or would cause within the next 12 months serious damage to land or property on the land pursuant to section 46(a)(ii)(B)of the ND Act. There was no signs or evidence of running bamboo on the respondents’ property but however if running bamboo had been located on the respondents’ property in the past then it was likely that the bamboo would infect neighbouring properties.
10. [10]
    Mr Inman said that he thought that there would be no damage within the next 12 months as the bamboo had now been removed. Upon viewing aerial imagery from Nearmap (an Australian imagery technology and location data company) Mr Inman formed the opinion  that there had been vegetation along the respondents’ rear boundary which could have been consistent with having bamboo planted there. However, that had now very clearly been removed and had been removed for some time. He said that he did not believe that the area already been infected prior to development as images from that time would have shown more visible signs of bamboo infected land in the aerial imagery than he found. The imagery did not show that to be the cause. In summary that the bamboo had been successfully removed by the respondents and there was no visible signs of bamboo existing. It was Mr Inman’s recommendation that if the applicants has any concerns about tree roots entering their property then they should install a root barrier along the property boundary of the applicants land. There was no recommendation that the respondents should bear part of this cost.
11. [11]
    From Mr Inman’s assessment of the property and aerial  imagery provided by Nearmap he found that there had been vegetation, perhaps bamboo, planted by the respondents but this had been removed by the respondents about the time of an application to the tribunal in 2017. This correlates with the time the applicants first raised the possibility of a QCAT application. The assessor said that the respondents appeared to have not understood the invasiveness of running bamboo but “had now learned a valuable lesson and the importance of correcting correctly identifying tree and plant species and understanding the characteristics prior to landscaping” . Mr Inman was unable to access the applicants’ property and he was unable to state whether there were continuing impacts. His recommendation was that if the applicants are concerned about trailing roots entering their property then a root barrier  could be installed along the boundary.

Discussion

12. [12]
    I am not satisfied, on the balance of probabilities, that the applicants are entitled to an order under the ND Act for the reasons set out below.
13. [13]
    The applicants bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act.
14. [14]
    The tribunal has broad powers to hear and decide:^[2]

…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.

15. [15]
    The ND Act defines “tree” to mean any woody perennial plant or any plant resembling a tree in form and size. This definition has been held in case law to include bamboo^[3] roots^[4] and stumps rooted in land and a dead tree ^[5] The Trees the subject of this dispute are no longer alive or still located on the respondents’ property. However, given that the powers of the tribunal to make orders include an order for compensation for damage to land or property caused by a tree or removal of a tree ^[6] I accept that this matter is within the jurisdiction of the tribunal.
16. [16]
    Land is ‘affected by a tree’ if 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,^[7] and the land adjoins the land on which the tree is situated.^[8] A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[9]
17. [17]
    The expert evidence before the tribunal is the report of the independent expert, Mr Inman. This evidence has not been challenged by the parties either by way of the filing of another expert’s report or any other kind of evidence. As previously stated in these reasons the onus of proof lies with the  applicants therefore it is up to them  to prove their case  on the balance of  probability.
18. [18]
    The tribunal has broad powers to make an order it considers appropriate about a tree to:

    (i) prevent serious injury to any person;^[10] - in this case there is no evidence of serious injury to a person;

    (ii) remedy, restrain or prevent serious damage to Mr and Ms Lukic’s land or any property ^[11];the  evidence of the independent expert , Mr Inman, is that there is no  serious damage to the applicants’ land or property. The applicants have not, on the balance of  probabilities, refuted this expert evidence  or provided  alternative evidence to the requisite standard therefore I accept  Mr Inman’s evidence.

    (iii) remedy, restrain or prevent substantial, ongoing and unreasonable interference with Mr and Ms Lukic’s use of their  land.^[12] - the  evidence of the independent expert , Mr Inman, is that there is no substantial, ongoing and unreasonable interference with Mr and Ms Lukic’s use of their  land.

19. [19]
    The applicants have not on the balance of  probabilities refuted this expert evidence or provided  alternative evidence to the requisite  standard. I therefore accept Mr Inman’s evidence.
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.^[13] This is not an issue  I need to decide as the Trees have already been removed.
21. [21]
    The applicants are concerned about the potential damage and past damage caused by  bamboo roots. The independent expert makes no finding of damage. Mr and  Ms Lukic’s  allegations are unsupported by  expert evidence or  any further evidence other  than their allegations and some accompanying photographs. On the balance of probabilities, I find that  there is insufficient  evidence  to find that the respondents are responsible for  potential damage or past damage.
22. [22]
    Even if I accept that it is more likely than not that the Lukics have suffered damage from the  respondents’ bamboo (which there is some doubt  about )due to the limited evidence, I am not satisfied that such damage could be described as ‘serious’. 
23. [23]
    The Pereras’ evidence is that they did not plant the bamboo. I do not accept this due to the evidence given by the independent expert in his report. This evidence was supported by the use of  Nearmap’s imagery  . It is the expert’s evidence that it appears that the respondents did plant  vegetation , perhaps bamboo. They have subsequently removed this bamboo.
24. [24]
    I find that there is no compelling evidence that the respondents should be responsible for  any concerns with bamboo in the applicants’ yard. The assessor's report clearly indicates that the only suggestion is a root barrier be installed on the applicants’ land and that there is at no time suggestion that the respondents be ordered to pay for that. The applicants have presented insufficient evidence to allow me to conclude that there is serious, ongoing damage that requires remedial action and/or a payment of compensation by the respondents. The applicants have failed to discharge their onus proof in this matter .
25. [25]
    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.
26. [26]
    Mr Inman’s report states that the Trees have been removed and that there is no indication of them still existing on the respondents’ property and as they no longer exist, they are not likely to cause any serious consequences.

27. [27]
    He recommended that the applicants may wish to install a  root barrier on their own land and take actions such as poisoning or digging up  any  shoots on their land. Due to the applicants not allowing access to the property, for whatever reason, the assessor  was not able to assess the applicants’ property and he was therefore unable to state whether there are continuing impacts occurring in the applicant's property.  He has  suggested the remedial action at the applicants could take. Based on the paucity of evidence in relation to any continuing impacts ,if any ,and indeed even if any impacts existed currently on the applicants’ property I am unable to conclude that I should make an order that the respondents be liable for a payment of a compensation claim to the applicant.  Further that I find that the tribunal should not order that the respondents be responsible for the payment of the cost of implementing any orders of the tribunal . I accept Mr Inman’s independent evidence.
28. [28]
    The evidence I accept is that the Trees were planted many years ago by the respondents . The respondents have now removed  those Trees. Mr Inman describes the respondents as having “not understood the invasiveness of running bamboo but have now learned a valuable lesson in the importance of correctly identifying tree and plant species and understanding their characteristics prior to planting into ones landscape”.
29. [29]
    The independent evidence before the tribunal is that of the expert tree assessor.  I find that it would be inappropriate to make orders adverse to the respondents due to the lack of evidence that there is any substantial ongoing damage or interference with enjoyment of the applicants property that is caused by the Trees of the respondent. This is a factor in favour of not making an order. 
30. [30]
    The Trees have been  removed and there is insufficient evidence for me to find that there is substantial ongoing damage or interference with the property caused by the respondent.

31. [31]
    There is no direct evidence from an arborist or a another relevantly qualified and experienced contractor that would allow me to conclude to the requisite standard that there is any evidence of harm which is substantial, and any past or any ongoing damage or interference caused by the Trees.
32. [32]
    The applicants  have submitted an invoice from a company called MLH 6 Pty Ltd. The invoice names Merlot Residential Australia Pty Ltd, the management company for the rental property of the applicants -  it is itemised as follows :$300 for a building inspection;$350 for Jim's Mowing;$1200 for excavation and truck hire; labour hire $700; new turf and top soil $700 and a Qld Government Title search. The other evidence attached appears to be an email from a tenant who vacated the property owned by the applicants and various photographs  of the property.
33. [33]
    There is insufficient evidence before me to be satisfied that Lukics’ concerns meet the statutory criteria for an order to be made by the Tribunal.
34. [34]
    The Trees are already removed and there is very little if any evidence that there is damage or interference of a substantial, ongoing and unreasonable nature caused by the Trees to the applicants’ land. As such I am unable to make an order for compensation again the respondents due to lack of evidence.
35. [35]
    There is no direct evidence from an arborist that there is damage or interference of a substantial, ongoing and unreasonable nature cause by the Trees to the applicants’ and or property. Without such evidence I am not satisfied that I should make such an order.

Order

36. [36]
    The Application for a tree dispute filed 8 November 2018 is dismissed.