Maskell v Ardill[2022] QCAT 405

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant, Mr Maskell, together with his wife, owns a property in Brisbane. The respondent, Mr Ardill, owns the adjacent property and lets out the house on site to a tenant.
2. [2]
   In late 2020 Mr Maskell complained to a real estate agent acting on behalf of the respondent about trees growing on Mr Ardill’s land. Mr Maskell asked the agent to contact the owner to discuss cutting back some trees and a mutual sharing of the costs involved.
3. [3]
   Mr Maskell contacted the agent through early 2021 but without receiving any significant response.
4. [4]
   In May 2021 he obtained a quotation from a tree lopping company (Brisbane Tree Experts) for $3,300 to variously remove or prune 6 trees on Mr Ardill’s land.
5. [5]
   Mr Maskell gave a copy of the quotation to the agent asking for a response from Mr Ardill by 8 June 2021. Mr Maskell explained he was happy to organise the tree lopping required, or the agent could do it.
6. [6]
   On 9 June 2021 the agent responded that their client had sought advice from a tree lopper and had informed the agent that he did not want the trees removed. No mention was made about him being prepared to maintain or prune any trees.
7. [7]
   Mr Maskell responded that the issue was about trees overhanging the boundary line and the failure of the agent’s principal to maintain his trees. The agent responded that the principal was not objecting to maintenance but would not entertain removal. The agent said trimming would be attended to in due course.
8. [8]
   The agent also said their principal would obtain a quotation for maintenance, but there does not appear to have been any timely action taken about that, and Mr Maskell filed his application for resolution of a tree dispute in the Tribunal on 13 August 2021.
9. [9]
   The Tribunal made directions about the conduct of the action including the filing of a Response by Mr Ardill and any statements of evidence, but he complied with neither direction.
10. [10]
    The matter has been set down for determination on the basis of the material filed, which are limited to the originating application and the statements of evidence filed by Mr Maskell.
11. [11]
    Initially, by his application, Mr Maskell sought orders for removal of a number of the trees, but in the course of the proceedings he limited his claim to orders that trees be pruned and reduced in height.
12. [12]
    In his originating application, Mr Maskell also claimed the trees caused shading preventing sunshine reaching solar panels on the roof of his house, that branches touched his house and grew inside open windows and that the trees impeded views from the second floor and third floor viewing decks “compared to when we bought the lot”. Additionally he mentioned tree roots undermining the dividing fence between the properties, tree roots placing a retaining wall at risk, and he also complained about leaf litter.

The evidence

13. [13]
    There is limited evidence available. There is no arborist’s report.
14. [14]
    Mr Maskell provides what he describes as a tree lopper’s report of 31 May 2021, photographs and a statement of evidence.
15. [15]
    The tree lopper’s report is not an arborist’s report and it is of no great assistance. It is a quotation for what is described as Mr Maskell’s proposed tree maintenance. It offers no commentary about the trees, their structure, health or a recommended height or canopy reduction. Nor does it comment on the extent to which branches from the neighbour’s land overhang the fence, obstruct views or obstruct light.
16. [16]
    Attached to the quotation are a number of photographs. Some of the photographs bear the same identification number as the quotation and therefore were presumably taken by the tree lopper when that person visited the site. There are various lines added to those photographs that are not entirely helpful because what they seek to depict is not clearly explained. They do show branches from trees on Mr Ardill’s property overhanging the fence into Mr Maskell’s property. The species of trees concerned are not identified in the photographs.
17. [17]
    There are also other photographs attached to the application for a tree dispute, which do not bear the tree lopper’s quotation identification number. Their authorship is not explained, but presumably they are photographs taken by Mr Maskell. They show the dividing fence in more detail and trees overhanging the fence. It is difficult to discern damage done to the fence.
18. [18]
    On 8 March 2022, Mr Maskell filed a statement of evidence with more photographs attached, a document entitled Submission, and proposed orders sought from the Tribunal.
19. [19]
    These additional photographs again show branches overhanging the common boundary fence. The branches appear to extend over the boundary by far more than .5 m into Mr Maskell’s property.
20. [20]
    There are also photographs of windows through which close vegetation can be seen. It is unclear where the windows are set or on which level of the house.
21. [21]
    There are no photographs of solar panels (or the roof), there are no photographs of the present claimed inhibited view from the second floor and third floor viewing decks (or the decks themselves), nor photographic or other evidence of the view from those decks that is said to have existed when Mr Maskell took possession of his home in 2017.
22. [22]
    Mr Maskell’s proposed orders do not extend to orders about the dividing fence. I take that to indicate that claim is not being pursued. There is no evidence to support the claim that the fence has been damaged by Mr Ardill’s trees in any case.

Consideration

23. [23]
    Looking along the property line between the two properties depicted in the photographs, there are clearly branches of trees growing on the respondent tree keeper’s property overhanging his neighbour’s land. Mr Mansell’s land is therefore affected by Mr Ardill’s trees and the tribunal has jurisdiction to decide matters of dispute in relation to the trees.^[1] The Tribunal is therefore able to make orders about the tree keeper’s trees affecting his neighbour’s land.
24. [24]
    The branches appear to extend more than .5 m over Mr Mansell’s land by my calculations and the branches are more than 2.5 m above the ground. I find that to be the case. I find Mr Mansell is entitled to an order to have them trimmed back to the dividing fence line.^[2]
25. [25]
    Considering Mr Mansell’s proposed orders, he would like the tree branches trimmed back to the fence line and the trees cut down to a height of 2.5 metres. Given a number of the trees appear mature and tall species, trimming them to such a reduced height would very possibly result in their death. One of the matters that the Tribunal must consider in deciding an application for an order resolving a tree dispute is that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[3]
26. [26]
    I propose to make an order requiring the overhanging branches of the trees to be cut back to the boundary line, and perhaps if good arboriculture or safety or both requires such, the trees reduced in height and canopy cover, but any such maintenance work must be undertaken with a view to ensuring the trees are not destroyed.

Obstruction of light and view

27. [27]
    By s 66(2) of the Act the Tribunal may make an order in relation to a tree which affects the neighbour’s land to remedy substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. By s 66(3) the interference in relation to an obstruction of sunlight must involve circumstances where the tree rises at least 2.5 m above the ground and the obstruction is “severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land”.
28. [28]
    The process for determining applications to remediate substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land involving obstruction of sunlight or a view was explained by former President of the Tribunal Alan Wilson J in Laing v Kokkinos & Anor (No 2) [2013] QCATA 247. It involves a three step process:

[34] First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, ss 72, 73 and 75.

[35] Within this framework, a ‘severe obstruction’ may be categorised as a jurisdictional fact: ‘a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question.’ As a consequence, the absence of such a finding will invalidate an order made under s 66 of the Act.

[36] The term ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’. During Parliamentary Debates, the then Attorney-General commented: ‘The severity threshold requires that the view must be nearly blocked out.’ Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.

29. [29]
    In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 the three step process mentioned in Laing was confirmed and the Appeal Tribunal went on to say:

The process identified in Laing cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the same dwelling, at the time of the hearing. In assessing the value of a view, the reasonableness of protecting a view and the impact of the interference with a view, the same view must be capable of assessment at differing points in time.^[4]

30. [30]
    In the matter at hand there is no evidence tendered to support the applicant’s claim that the respondent’s trees obstruct light into windows, save for a general statement to that effect. There are photographs of branches close to windows, but it is not made clear that there is an obstruction of light caused by the branches to those windows, nor indeed whether these are the windows concerned.
31. [31]
    Similarly there is no evidence that the respondent’s trees obstruct light to solar panels on the roof. There are no photographs of the roof or solar panels on the roof, nor their position on the roof with respect to the tree keeper’s trees. 
32. [32]
    There is no evidence tendered to support the claim about views that previously existed being obstructed from second and third floor decks.
33. [33]
    There is certainly no evidence that, if the claimed obstructions of light or view exist, that the obstructions are severe, which is a jurisdictional fact to be established to enliven the jurisdiction of the Tribunal to make the orders sought.^[5]
34. [34]
    Mr Mansell does not succeed in establishing an entitlement to an order about reduction of the height of the trees to remediate substantial, ongoing and unreasonable interference with the use and enjoyment of his land.

Orders

35. [35]
    It is appropriate that Mr Ardill be responsible as tree keeper for the trees growing on his land affecting his neighbour’s land.
36. [36]
    The absence of any guidance from an arborist is troubling but I must do the best I can on the limited material available.
37. [37]
    I order as follows:

    1. (a)
       The respondent tree keeper shall prune and maintain all trees on the tree keepers land  which have branches overhanging the applicant’s property so that the branches are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, have the canopy heights and canopy cover of the trees reduced to ensure safety of property and people and health of the trees.
    2. (b)
       The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondent tree keeper.
    3. (c)
       The work shall be completed within 6 weeks from the date of Order.
    4. (d)
       Should that work not be completed within that time the applicant shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.
    5. (e)
       Should the applicant be required to carry out the work (and/or the annual pruning stipulated for below) in default of it being done by the respondent tree keeper a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicant shall be entitled to enter the respondent tree keeper’s land to carry out the work subject to the applicant giving 14 days written notice of that intention to the respondent tree keeper at the respondent tree keeper’s last known address and the tenant or present occupant of 147 Crosby Road, Hamilton.
    6. (f)
       The costs incurred by the applicant engaging a tree lopper and arborist to do the work in default of the respondent tree keeper shall be recoverable from the respondent tree keeper as a debt without further notice being required to be given.
    7. (g)
       The respondent tree-keeper shall ensure, every 12 months after initial pruning, that a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the branches of any trees on the respondent tree keeper’s land which overhang the applicant’s land are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, that the canopy heights and canopy cover of the trees are reduced in accordance with Order 1 above.
    8. (h)
       The respondent tree keeper and any tree lopper or arborist engaged by the respondent tree keeper to perform the work or annual pruning shall be entitled to enter the applicants’ land at 149 Crosby Road, Hamilton subject to 24 hours written notice being given of the work to be done.
    9. (i)
       A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework (AQF) level 5 in arboriculture.
    10. (j)
        These orders shall remain in force and effect for a period of 10 years from the date hereof.
38. [38]
    Mr Maskell owns his property with his wife Tracey Ann Maskell as joint tenants. Mr Maskell filed a current title search from Queensland Titles Registry in the course of the proceeding. All registered proprietors of both the tree keeper’s land and the affected neighbour’s land are appropriate parties in tree disputes, given orders travel with title.
39. [39]
    Tracey Ann Maskell is joined as applicant to the proceeding.