Athanasopoulos v Bateman[2023] QCAT 318

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

12. REASONS FOR DECISION

12. [1]
    The Applicants and the Respondents own adjoining suburban properties in Swayne Street carina Heights Brisbane. The respondents own their home at 24 Swayne Street. The Applicants own the home at 28 Swayne Street. Photographs show that 28 Swayne Street is a high set house.               The Applicants were represented at the hearing by Mr Athanasopoulos. Mrs Athanasopoulos did not attend the hearing.

12. [2]
    On 3 February 2020 the Applicants filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act) for the pruning or removal of trees shrubs and other plants growing adjacent to and in some instances such as a foxtail palm whose fronds went over the boundary line. One small shrub has grown through the timber fence onto the Applicant’s side. Some stalks have grown through the gaps in the fence. Both of the latter could be easily removed by the Applicants should they choose to take that course. It also sought that trimming of trees that were said to obstruct views occur.

12. [3]
    During the hearing it was clarified that the Applicants were actually only seeking that all the trees, including a hedge growing about half a metre inside the respondents’ boundary, and which was trimmed to leave gap between it and the fence, be trimmed off, so that none was higher than 1.8 metres, a height that the Applicants asserted was the height to which trees were legally permitted to grow. The Applicants’ assertion that 1.8 metres was the height to which trees were legally permitted to grow was unsupported any reference to any statutory or regulatory enactment, nor any other source of authority. There is no such legal limitation in Qld to proscribe the height to which trees are legally permitted to grow.

12. [4]
    In the Application for a tree dispute filed on 3 February 2020, the Applicant Jim Athanasopoulos has contended that:

12. [5]
    The matter of trees on this boundary has a long history. An application was filed and determined in QCAT in 2012, before the present respondents came to own the property at number 24. The Tribunal then ordered by consent, that is by agreement between the parties, without a merits hearing, that the hedge and a large standalone mock orange, since removed, be reduced and maintained to a height of 2.5 metres and kept trimmed leaving a gap of no less than 20 cm to the fence.

12. The relevant provisions of the ND Act

12. [6]
    I recently conducted a review of the relevant provisions of the ND Act in Body Corporate for Elron Court - CTS2566 v Doyle [2023] QCAT 279. Under s 46 land is taken to be affected by a tree only in limited circumstances. Accordingly, the land is only tree affected if it satisfies one of the following, namely:

3. (ii)
   the tree has caused, is causing, or is likely within the next 12 months to cause—

3. (A)
   serious injury to a person on the land; or

3. (B)
   serious damage to the land or any property on the land; or

3. (C)
   substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;

12. [7]
    The applicants bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act. The tribunal has broad powers 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”.^[1]

12. [8]
    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 roots and stumps rooted in land and a dead tree.^[2] 

12. [9]
    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, and the land adjoins the land on which the tree is situated. A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[3]

12. [10]
    Under S 66 of the ND Act the tribunal has broad powers to make an order it considers appropriate about a tree to:

3. (i)
   prevent serious injury to any person;

3. (ii)
   remedy, restrain or prevent serious damage to the Applicants’ land or any property

3. (iii)
   remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicants’ use and enjoyment of the neighbour’s land.

12. [11]
    What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.^[4]

12. [12]
    In Belcher v Sullivan [2013] QCATA 304 Judicial Member Dodds held:

3. [22]
   “Serious‟ is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible”.

3. [23]
   “Substantial‟ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance.

3. [24]
   Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

12. [13]
    The ND Act s 72. 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. I am required to consider various matters including the contribution to amenity the trees make to the Respondents’ land including their contribution to privacy and protection from noise^[5].

12. [14]
    I am satisfied that the Applicants has met 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 in that they have made reasonable efforts to resolve this dispute prior to commencing this proceeding.

12. Arborist report

12. [15]
    A Tree Assessor’s Report was prepared for the Tribunal by David Gunter after his site visit on 25 February 2022. Neither party called Mr Gunter or cross examined him. The Applicants sought to criticize his methods and the report, and its conclusions by contending that he arrived 3 days before the scheduled date, on a very rainy day and walked along the fence for 45 minutes, and spent only 5 minutes with Mr Athanasopoulos inside his house. Even if all that were true, I do not accept that it limits or discredits his conclusions.

12. [16]
    In any event I accept the Respondents’ evidence that the Respondents were at the front of their house when the Tree Assessor arrived at the Applicants’ property on 25 February 2022 and that they witnessed the Applicants following the Tree Assessor up and down the fence line during his inspection of the Applicants’ property. I accept that the Respondents observed that the Applicants were talking with the Tree Assessor almost continually during the inspection.

12. [17]
    I also accept the Respondents’ evidence that after the inspection of the Applicants’ property, the Tree Assessor attended at the Respondents’ property and that after the Tree Assessor completed the inspection of the Respondents’ property, where he was in discussion with the Applicants at his car for approximately 10 minutes.

12. [18]
    The Tree Assessor’s report describes a number of trees assessed for the report all having good structure and vitality as follows;

3. (a)
   Murraya (Mock Orange) Hedge 2.4m height which he described as an extremely well-maintained hedge showing good overall condition. It was kept pruned clear of the property fence and had been pruned/ trimmed relatively recently.

3. (b)
   Plumeria pudica (Everlasting Love Frangipani) There was no overhang into applicants’ property. It had been maintained at approximately eaves height to the respondents’ house.

3. (c)
   Mixed species of bamboo & Tiger Grass 3-4 m height which had no overhang into applicants’ property. It was tied back to prevent overhang.

3. (d)
   Wodyetia bifurcata 4 m height having a minor overhang into applicants’ property of some .5to 1m.

12. [19]
    The Tree Assessor’s report says, and I accept that the trees are located along the Eastern boundary of the respondents’ property. The trees all show good vitality and structure and are clearly regularly maintained and pruned to avoid overhang into the applicants’ property. The solitary exception to this is Tree 4 which is a relatively small Fox Tail Palm. Fronds from this tree overhang the applicants by 0.5 - 1 metre at a height of approximately 3-4 metres. There are no structures/infrastructure beneath the tree and fronds are relatively small. No arboricultural issues were noted at the time of his visit.

12. [20]
    He concludes and I accept that no significant impacts to the applicants’ property were noted at the time of his visit. The property boundary fence is in relatively poor condition, with some support posts appearing to be loose in the ground, and fence palings poorly attached in places. It is his opinion that this is unlikely to be a result of tree growth.

12. [21]
    The Tree Assessor’s report attaches an overhead photograph of the disputed area and numerous other photographs of the trees in question. Those photographs show a situation that for all relevant purposes is identical to the situation depicted in photographs taken by Mr Athanasopoulos a few days before the hearing n, and which are in evidence. 

12. [22]
    As to whether the applicants’ land is affected by the tree he concluded and I accept that at the time of his assessment, there were no significant impacts to the applicant’s property, or their enjoyment of said property, were noted. The respondent has clearly spent time and money to ensure that very little foliage extends into the applicants’ property. If the trees continue to be maintained in this manner, then in my opinion there is no further arboricultural work required.

12. The contribution of the tree to amenity

12. [23]
    In the report the Arborist, but also from the evidence of the Respondents which I accept, it is shown that that the tree contributes a significant benefit of shade and biodiversity. It provides an important refuge for bird life. It provides privacy and amenity to the respondents’ home. I accept that the subject trees provide much enjoyment to the tree keeper in terms of shade, overall garden layout and landscape/aesthetic benefits as well as providing nesting/roosting and perching for birds.

12. [24]
    The Respondents have managed the trees and particularly the hedge by using properly qualified gardeners over many years, and it is reasonable to expect they will continue to do so. They impressed me as responsible neighbours who have tried over a long period to understand what the Applicants’ complaints about these trees is and to do what could reasonably be done to satisfy them.

12. Views

12. [25]
    One of the things the Applicants complain of is that somehow the hedge interferes with views from their house. The only view it might interfere with is a view into the Respondents’ back yard. Hence the hedge acts as a privacy screen. The Arborist noted that when he inspected it is was 2.4m in height and was an extremely well-maintained hedge. The evidence of Mr Bateman which I accept is that it is now 2.5 m high, but 3m high, relative to the ground at the back fence end because the land drops off as the yard continues. The hedge is trimmed so as to be level on top, and does not follow the contour of the land.

12. [26]
    I am not persuaded that the hedge does actually interfere with views from their house. The Applicants propose to construct a second house on their land, on the side of the property where these trees and hedge stand. The Applicants seem to want to get these orders as some anticipatory strike to provide for better amenity for those in that house once built.

12. [27]
    Even if it did interfere with a view, as Justice Alan Wilson, the then President of this Tribunal, observed in 2013 in Laing v Kokkinos (No 2) [2013] QCAT 247, [32].: “Section 66 of the Act provides that an applicant may seek an order of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land. That section does not create a right to a view, the remedy referred to is a statutory one which is discretionary, and will not be exercised if it is not appropriate in the circumstances

12. [28]
    As Senior Member Stilgoe OAM observed in Vecchio v Papavasiliou [2015] QCAT 70, [10] and [11].: There is no general right to a view in Queensland. The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. Section 66(3)(b)(ii) creates a right to a view from a dwelling that existed at the time the neighbour took possession of the land”.

12. [29]
    There is no evidence of either any severe obstruction of a view of any kind, nor of what was the view from a dwelling that existed at the time the Applicants took possession of the land.

12. [30]
    As for the other things mentioned in the Application for a tree dispute filed on 3 February 2020, I reject the contention that there were significant branches overhanging the common boundary by more than 50cm and that in particular “some trees have over grown in height, affecting (the) view, sun and breezes”. The only tree overhanging the Applicants’ property was, as described in the Tree Assessor’s Report at page 3 as a “a relatively small Fox Tail Palm”. It can be seen in much the same position in recent photos The assessor goes on to say that “Fronds from this tree overhang the applicants by 0.5 - 1 metre at a height of approximately 3-4 metres. There are no structures/infrastructure beneath the tree and fronds are relatively small”.

12. [31]
    I reject the contention that the trees caused serious injury when a branch had fallen on the Applicant, Katerina Athanasopoulos, in the past, if that is to suggest it happened recently. I find that the reference to the injury to the female Applicant is to an event that occurred over 10 years ago, and before the Respondents took ownership of the Respondent’s property and commenced the maintenance of the trees. The tree involved in the referenced incident has long since been removed.

12. [32]
    I also reject the contention that the root system has caused serious damage to the Applicants’ land or property (in the past). The Applicants have not provided any details about this serious damage caused by the “root system. One photo shows an exposed root, that appears to have been made visible by removing the soil above it. No damage to anything is evident.

12. [33]
    I also reject, for the reasons set out above, the contention that the Respondents’ trees have caused substantial, ongoing and unreasonable interference with Applicants’ use and enjoyment of their land through damage to the fence and   interruption to/loss of view, sun and breezes. The Respondents employ a gardener and he has been instructed one of the highest priorities for the gardener is to ensure that all trees along the common boundary with the Applicants is trimmed to ensure that all trees are back from the fence and do not overhang the fence. The Tree Assessor has concluded, and I accept, that the “respondent has clearly spent time and money to ensure that very little foliage extends into the applicant’s property. If the trees continue to be maintained in this manner, then in my opinion there is no further arboricultural work required”.

12. [34]
    I also reject the contention that there are other things apart from trees that have contributed to, or are contributing to the interference, namely, “trees, golden cane palms, growing shrubs, affecting my property in size and height [sic]”. There are no such trees present, according to the Arborists’ report.

12. [35]
    I also reject the contention that there is obstruction of sunlight. The houses are set well apart. The Applicant’s house is set on stumps which appear to put the floor level above the line of the hedge being complained about.

12. [36]
    I also reject the contention that the trees have an impact on soil stability, the water table or other natural features of the land or locality; and (ii) that there are risks associated with the trees in the event of a cyclone or other extreme weather event. There is no evidence to support that contention.

12. [37]
    I also reject the contention that the trees form part of the dividing fence between the Applicants’ and Respondents’ land. All the trunks of the trees are within the Respondent’s land, there is a wooden fence on the boundary between the trees and the Applicants’ land.

12. [38]
    I also reject the contention that the trees have damaged the dividing fence and prefer the arborists’ opinion about this.  The Tree Assessor concluded, and I accept that: “The property boundary fence is in relatively poor condition, with some support posts appearing to be loose in the ground, and fence palings poorly attached in places. It is my opinion that this is unlikely to be a result of tree growth.”

12. Disposition

12. [39]
    Accepting and applying the approach identified above in Belcher v Sullivan [2013] QCATA 304 by Judicial Member Dodds, I am not satisfied that the damage to the fence has been caused by any of these trees nor that root entry across the boundary has caused any or any serious damage of any kind nor amounted to on-going and unreasonable interference with the applicants’ use and enjoyment of their land which was substantial.

12. [40]
    Even if I had been persuaded that it was serious damage or amounted to on-going and unreasonable interference with the applicants’ use and enjoyment of its land which was substantial, it does not follow that the trees must now be lopped or kept to some particular height. Under S 66 of the ND Act the Tribunal has broad powers to make an order it considers appropriate about a tree to remedy a situation where that situation was held to exist. There are other remedies available to deal with that interference or potential further interference in the future, including the Applicant trimming any overhanging or protruding foliage.

12. [41]
    I am not satisfied that removal trimming or height limitation of the trees is required or desirable to remedy, restrain or prevent serious damage to the Applicants’ land or any property. Nor am I satisfied that removal of the tree is required or desirable to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicants’ use and enjoyment of its land.

12. [42]
    For those reasons I refuse the application.

12. [43]
    I order that the application filed 3 February 2020 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for the pruning or removal of trees shrubs and other plants growing adjacent to the parties’ boundary line is dismissed.