QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Body Corporate Podium CTS 47285 is a town house complex at 60 - 62 Anzac Avenue Maroochydore. The Applicants, Nathan Stewart Young and Shasta Watson, are the owners of Unit 8 in the complex.  The Body Corporate which I will refer to hereafter as ‘Podium’ is the other Applicant. Unit 8 shares a boundary with the house of the Respondent, Mr Puck, at 119 Duporth Avenue, Maroochydore.  A flooded gum tree some 32 metres in height with a canopy spread of 14 metres grows in the Respondent’s yard in close vicinity to Unit 8. Indeed, the canopy spreads some 6 metres over the Applicant’s property. 
2. [2]
   A dispute has arisen between the neighbours. Discussions were amicable in 2016 but have now reached a stage that requires this Tribunal’s determination. The application was filed on 1 May 2018.

Jurisdiction

3. [3]
   The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act). Under the Act the Respondent Mr Puck is the tree keeper and has certain responsibilities.^[1] Removal of overhanging branches is considered in Parts 4 and 5 of the Act and the parties are encouraged to resolve the management and/or removal of the branches informally.
4. [4]
   Before dealing with the substantive parts of the Act it is necessary to establish who can be an applicant.
5. [5]
   The relevant provision of the Act is as follows:

49 (1) Each of the following entities is a neighbour in relation to a particular tree or the tree-keeper for a particular tree—

1. (a)
   if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994—

1. (i)
   a registered owner of the lot under that Act; and

2. (ii)
   an occupier of the land;

2. (b)
   if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997—the body corporate for the community titles scheme;

3. (c)
   if land affected by the tree is a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980—the body corporate for the plan.

2. (2)
   However, subsection (1)(a)(ii) does not apply for part 4.

6. [6]
   The Applicants unit holders Nathan Stewart Young and Shasta Watson, who own Unit 8, are registered owners of a lot as defined under the provisions of the Land Title Act 1994 (Qld) and therefore, ‘a neighbour’, under s. 49 (1) (a) of the Act. Further Podium is also a neighbour pursuant to s. 49 (1) (b) of the Act.
7. [7]
   Part 6 of the Act applies if the parties cannot resolve issues relating to the tree.
8. [8]
   The relevant provisions of the Act are as follows:

61 QCAT has jurisdiction to hear and decide 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.

62 (1) The neighbour may apply, as provided under the QCAT Act^[2], to QCAT for an order under section 66.

2. (2)
   However, if the land affected by the tree is a lot recorded in the freehold land register and the neighbour is an occupier but not a registered owner of the land, the neighbour may apply only if a registered owner of the land has refused to make the application.

66 (2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

1. (a)
   to prevent serious injury to any person; or

2. (b)
   to remedy, restrain or prevent—

1. (i)
   serious damage to the neighbour’s land or any property on the neighbour’s land; or

2. (ii)
   substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

5. (5)
   Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

1. (a)
   require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

• an order that requires the removal of the tree within 28 days
• an order that requires particular maintenance work on the tree during a particular season every year
• an order that requires particular work to maintain the tree at a particular height, width or shape

2. (b)
   require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;

3. (c)
   require a person to apply for a consent or other authorisation from a government authority in relation to the tree;

4. (d)
   authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;

5. (e)
   require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;

6. (f)
   require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;

7. (g)
   require a report by an appropriately qualified arborist.

9. [9]
   Under s. 62 only a neighbour can apply to this Tribunal. I am satisfied QCAT has jurisdiction to hear the matter and that the Applicants have standing.^[3]
10. [10]
    It is not necessary for me to consider the legislation further for reasons I will elaborate hereunder.

Tree Assessment Report

11. [11]
    On 8 August 2019, the Tribunal directed that a tree assessor be engaged and that the parties share equally the tree assessor’s costs of $1,000. Michael Sowden, an arborist, was engaged. He prepared a report dated 24 February 2020.
12. [12]
    In that report he made the following recommendations:

13. [13]
    Mr Sowden also noted the following:

14. [14]
    Mr Puck was asked, in the course of his evidence, whether he agreed with the recommendations and affirmed that he did. One would have thought that would have been the end of the matter. However, Mr Puck was not prepared to share the costs of the recommended treatment. He was represented by his daughter who said that Mr and Mrs Puck were pensioners and their house was mortgaged and they had no ability to pay the future costs or, indeed, the damages and arrears of costs incurred by Podium in the past. To make a determination on these issues it is necessary to go further into the history of the matter.

History

15. [15]
    Initially, Mr Puck and Ms Jacque Morrison, Secretary of the Body Corporate, who appeared in person at the hearing described discussions between them as amicable.
16. [16]
    The Applicants say that from the moment that they moved into Unit 8 the premises have been affected by leaf litter falling limbs, sap and associated debris. The debris and sap also was causing corrosion and maintenance issues to the building.
17. [17]
    Initial conversations between Ms Morrison and Mr Puck were amicable, and Mr Puck, it is stated had no problem with the tree being pruned.  Indeed, he allegedly said that as far as he cared the tree could be cut down. He said that it overhung his garage which house 2 classic Porsche 911 motor vehicles.^[4] As a gesture of goodwill and to maintain good relations between neighbours Podium agreed to bear the cost of the pruning. Three quotes were obtained, and the cheapest quote accepted.
18. [18]
    The successful tenderer Central Tree Services attended the site on 9 August 2016 and commenced operations. Whilst carrying out the work they were interrupted by Mr Puck and his wife who demanded that they stop and threatened to call the police. Mr Puck’s complaint to Mr Fournaris of Central Tree Services was that no one had informed him of the works and he had never agreed to the works being carried out. Mr Fournaris said that Mr Puck and his wife were extremely obnoxious towards his workers even though they attempted to explain that the works were being carried out in accordance with tree pruning Australian Standards. They abandoned the work. Podium was charged the full amount for the job as the ensuing argument took up the remaining quoted time for the job. Podium paid the sum of $1,450.00.
19. [19]
    For some time no further action was taken by the Applicants but in 2017 damage and corrosion was continuing to be caused to the building and they were advised by builders that the damage would get worse. Numerous attempts were made to discuss the issue with Mr and Mrs Puck but there was no response.^[5]
20. [20]
    In October 2017 there was a conversation between Mr Puck and Ms Morrison where Ms Morrison says that he would agree with the completion of the pruning after return from his annual trip to Europe in November.^[6]
21. [21]
    The Applicants say that high winds in late 2017 caused tree branches to impact on the roofs of units 7 and 8. Branches were also dropping on to the roof. On 8 December 2017 Nathan Young hired a chain saw and trimmed the overhanging branches. Nothing further was heard from Mr and Mrs Puck.
22. [22]
    In early 2018 Ms Morrison had discussions with Theo who had a business Harvest Outdoor Services, it had been unsuccessful on the initial tender. Theo knew Mr Puck and had a good relationship with him. Ms Morrison hoped to engage Theo to carry out the work with Mr Puck’s approval. Although, Mr Puck was prepared to have Theo carry out the work he was not prepared to pay.
23. [23]
    When this Application was filed the Applicants say that Mr Puck became even more uncooperative and aggressive. When served with the application he threatened to strike Mr Young. Mr Puck was known as Tom Puck but his correct name was Gottlieb Puck. He advised the application had been commenced in the wrong name but refused to advise the Applicants his correct name.  Hence, the Applicants were required to carry out a title search and incur further expense.
24. [24]
    In 2019, Ms Morrison contacted the Landscape and Environmental Officer of the Sunshine Coast Council to seek assistance. She was advised that there was no Biodiversity Protection Order relating to the tree despite assertions by Mrs Puck to the contrary. The Landscape and Environmental Officer attempted to act as an intermediary between Podium and the Pucks to have the tree pruned. Those attempts were delayed by the lack of co-operation by Mr and Mrs Puck as is apparent from the email trail exhibited to the Applicants’ statement.^[7]
25. [25]
    Podium engaged and arborist recommended by the Sunshine Coast Council to carry out some minor works at a cost of $1,519.10.

Progress of the matter through QCAT

26. [26]
    The usual directions were made as to the filing of statements of evidence, both parties complied but the Respondent’s statement is very brief and lacking in detail and does not address the detailed evidence of the Applicants.
27. [27]
    Mr Puck was represented by his daughter Michelle who advised that he was hard of hearing and did not readily understand the proceedings. Nevertheless, during the hearing it became apparent that he did understand the issues and expressed a view that he was not getting a fair hearing and wished to go to higher court.
28. [28]
    Despite the usual direction that the parties would not be entitled to present evidence at the hearing not contained in the statement of evidence, and against the objection of Ms Morrison, I invited Mr Puck to give evidence. He did so and though hard of hearing he understood the question asked of him. 

Mr Puck’s evidence

29. [29]
    One issue he raised was that damage done to the Unit 8 was not by limbs falling in a storm but by Mr Young cutting some of the branches with a chain saw. He had a video of this alleged event on his phone. The video was not clear and was not helpful. He accepted that the branch depicted in the Applicants’ photograph which was shown to him had not been sawn but appeared to have broken off.^[8] I note that the storm was in May 2018 and the incident where Mr Young was using a chain saw was in December 2017.^[9] I accept the Applicant’s evidence that it was a storm in May 2018 that was cause of the fallen branches depicted in the photographs.^[10]
30. [30]
    Another issue appears to be that the original arborist used climbing spikes which was denied by Ms Morrison. Although, this occupied much of Mr Pucks evidence and submissions made on his behalf on the day of the hearing there is no reference to it in the material other than the recommendations of Mr Sowden. Ms Morrison, who was present at the time Central Tree Services was attempting to carry out the work was adamant that spikes were not used. I accept that to be the case.

Resolution

31. [31]
    The only real issue to determine is whether Mr Puck should pay as the tree keeper and what he should pay as costs and damages.
32. [32]
    Mr Puck has on numerous occasions stated that he cannot afford to pay for the pruning he says that they are pensioners and have no funds. Evidence inconsistent with that assertion is that they own their home although it is mortgaged. The extent of indebtedness is unknown. According to the Applicants, the Pucks make trips to Europe on an annual basis, presumably, now interrupted by the Covid 19 pandemic. He has 2 classic Porsche cars garaged at the property. He paid the $500.00 for his share of Mr Sowden’s report when compelled to do so. Michelle Puck says the cars are not his but are owned by a family member. She says family members fund the trips to Europe and she says that Mrs Puck paid the $500 without Mr Puck’s knowledge. Despite these explanations I am not convinced that Mr and Mrs Puck cannot meet their commitments as a tree-keeper.
33. [33]
    Although, Podium agreed to bear the costs of the initial pruning which was abandoned because of the behaviour of Mr Puck and his wife it now seeks that Mr Puck pay half of those costs. Although the arborist was asked to leave, I am of the opinion, that there was substantial pruning at the time. Indeed, Mr Fournaris reported that a huge amount of weight had been removed from the tree and it was safe.  I think the appropriate order is, that Podium honour its offer and bear the cost of the abandoned pruning. 
34. [34]
    The Respondent should pay half ($759.55) of the pruning carried out in 2019 of $1,519.10.
35. [35]
    The Applicants Nathan Stewart Young and Shasta Watson claim the sum of $935.00 for damages to their property being a screen $110.00 and $825.00 for damage to a window and gutter caused by falling branches. I find that the Respondent should pay these amounts.
36. [36]
    They also claim the costs of search fees of $57.75 which would not have been necessary had Mr Puck not refused service and taken the point that his name was incorrectly described and that the Applicants had commenced proceedings against the wrong party. This claim is strictly a costs component. Section 100 of the QCAT Act provides that each party should bear their own costs. However, under s. 102 (3) the Tribunal may award costs if, inter alia, a party acts in a way that unnecessarily disadvantages another party. I find that the Respondent has acted in such a way and is liable for the search fees. I think it appropriate that the sums should be paid to Podium.
37. [37]
    The total amount payable by Mr Puck to Podium is $1,752.30.
38. [38]
    Pursuant to s. 78(1) of the Neighbourhood Disputes Resolution Act 2011 (Qld) any order of QCAT lapses after 10 years unless the order expressly provides otherwise. I think it is reasonable to avoid further ongoing disputes to extend the operation of this order beyond 10 years.
39. [39]
    I make the following orders:

    1. (a)
       The tree to be pruned (the initial pruning) subject to the conditions and in accordance with the recommendations of the tree assessor in his report dated 24 February 2020 within 60 days of the date of this order.
    2. (b)
       Maintenance pruning be carried out in accordance with and subject to the conditions of the tree assessor’s recommendations.
    3. (c)
       Unless the Respondent ceases to be the tree-keeper or the tree dies, is destroyed or removed this order will continue in operation after 10 years after the day the order was made and is excepted from the limitation of s.78(1) of the Neighbourhood Disputes Resolution Act 2011 (Qld).
    4. (d)
       Podium be responsible for appointing and engaging the arborist to carry out the initial pruning and the maintenance pruning.
    5. (e)
       The tree to be pruned (the initial pruning) subject to the conditions and in accordance with the recommendations of the tree assessor in his report dated 24 February 2020 within 60 days of the date of this order.
    6. (f)
       Podium will give the Respondent at least 14 days’ notice in writing of the arborist’s intention to attend and carryout the initial pruning and subsequent maintenance pruning.
    7. (g)
       The Respondent will give the arborist appointed by Podium all appropriate access to his property necessary to carry out the pruning.
    8. (h)
       The Respondent and Podium will share equally the costs of the initial pruning and the future maintenance pruning carried out in accordance with paragraph 1 and 2 hereof.
    9. (i)
       The Respondent pay to Podium the sum of $1,752.30 by 4.00 pm 30 July 2021.