Lake v Isaac[2023] QCAT 456

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Lake and her husband Paul commenced tree dispute proceedings in the tribunal in September 2019. During the course of the proceedings Mr Lake died, however Ms Lake has continued the action. She claims vegetation on the neighbour’s land, owned by Ms Isaac, the tree keeper, is causing a problem with the tall trees reducing the sunlight available to her property.
2. [2]
   The principal issue for Ms Lake is the effect the reduced sunlight has had on her yard and garden. There is also a claim that the shading affects solar panels on the roof of her house, and that tree branches and palm fronds overhang her property from the tree keepers land.
3. [3]
   Section 46 of the  Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) provides:

46 Land is affected by a tree at a particular time if—

1.  any of the following applies—

1.  branches from the tree overhang the land;

2.  the tree has caused, is causing, or is likely within the next 12 months to cause—

1.  serious injury to a person on the land; or

2.  serious damage to the land or any property on the land; or

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

2.  the land—

1.  adjoins the land on which the tree is situated…

4. [4]
   By s 66(2) of the Act it is provided that QCAT may make orders considered appropriate in relation to a tree affecting the neighbour’s land -

1.  to prevent serious injury to any person; or

2.  to remedy, restrain or prevent—

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

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

5. [5]
   The legislation also provides by s 66(3)(b) that it is only an obstruction of sunlight pursuant to the Act where the obstruction is severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.

Unreasonable interference

6. [6]
   In the matter at hand, whilst there is shading of Ms Lake’s garden and yard, there is no evidence submitted by her to show that the trees growing on Ms Isaac’s property causes substantial, ongoing and unreasonable interference with the use and enjoyment of her land as defined under the Act. There is no evidence to support her claim that the shading constitutes severe obstruction of sunlight to any window or the roof of Ms Lake’s dwelling. That includes shade falling on solar panels on Ms Lake’s roof. That seems to occur only in the very early hours of the day in mid-winter. Apart from that however, at other times throughout the day the sun shines on the solar panels.
7. [7]
   Ms Lake engaged her own arborist to provide a report. Mr Bauer the arborist concerned, discussed the problem of limited sunlight for Ms Lake’s garden, however nowhere in his report does he say the problem of shading amounts to a substantial, ongoing and unreasonable interference with the use and enjoyment of her land in accordance with the provisions of the Act.
8. [8]
   Mr Bauer and Mr Inman, the latter an arborist appointed by the tribunal, subsequently met in conclave and produced a joint report.
9. [9]
   Pursuant to Practice Direction 9 of 2009 the joint report is taken to be both experts statement of evidence in the proceeding.
10. [10]
    The expert’s agreed in the joint report that the shade only impacts part of Ms Lake’s property and that sunlight is available to other parts of the applicant’s property. The experts agreed they did not consider the shading that occurred to be a substantial, ongoing and unreasonable interference with her use and enjoyment of her land as required by the Act for orders to be made to remedy the interference. They state most of the property does have sunlight during different times of the day and the shade does not severely impact our roof, window or building.
11. [11]
    I find Ms Lake’s land does not suffer from obstruction of sunlight to a window or roof of Ms Lake’s dwelling, and her property is not affected by trees growing on Ms Isaac’s land justifying any order by the Tribunal.
12. [12]
    I note Ms Lake complains of ill health caused by the shading effect, perhaps due to the presence of mould growing in shaded areas of her yard, but there is no evidence to suggest her ill-health is directly (or indirectly) attributable to the trees and their shading effect on her property other than her belief that that is the case.

Branches and fronds overhanging

13. [13]
    At hearing, and in the material filed by Ms Lake prior, there is reference to her finding it necessary to undertake fairly constant maintenance of branches and fronds of trees and palms growing on Ms Isaacs land extending out over the common boundary.
14. [14]
    Section 46 abovementioned makes clear that land can be affected by a tree where branches overhang the common boundary.
15. [15]
    Ms Isaac did not observe Ms Lake’s maintenance of the overhanging fronds and branches being a regular performance. Perhaps Ms Isaac didn’t note it as such because it was Ms Lake who regularly attended to it and relieved Ms Isaac of the responsibility. I accept such work, trimming back branches and fronds to the boundary, has been done to date by Ms Lake, and done quite regularly.
16. [16]
    I note Mr Inman, the arborist expert appointed by the tribunal, commented about such work in his initial report, although neither expert addressed the matter in their joint report.
17. [17]
    Mr Inman had recommended that dead palm fronds, together with seedpods, flower spikes and all the other vegetation overhanging, be pruned back to the boundary fence once a year. He suggested that that occur when the palm trees produce large plumes of flower blossoms in summer, ideally between January and March. I accept branches and palm fronds do grow out over Ms Lake’s boundary and they do require maintenance to bring them back to the common boundary. I accept Ms Lake’s evidence that from time to time the large palm fronds fall into her yard. I accept if she was struck by them it might well cause injury. I conclude that that would probably be somewhat of a regular occurrence if Ms Lake did not regularly prune them back.
18. [18]
    It is appropriate to direct the tree keeper, Ms Isaac, to regularly prune back her overhanging vegetation to the common boundary. 
19. [19]
    Ms Lake also complains about the nuts from the Cocos Palms falling into her yard. She says she cannot mow over them. Hopefully, if the palms pruned back to the fence line that problem will be much alleviated.
20. [20]
    Generally however, leaf litter falling from trees will not usually be a basis for intervention by the tribunal.^[1] In the Court of Appeal in Graham & Ors v Welch [2012] QCA 282 Atkinson J said:

The finding that the tree should have been trimmed or removed to avoid the possibility of gumnuts falling on steps is in my view contrary to principle. Trees and bushes are common place and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods. I agree with Muir JA as to the aesthetic and ecological desirability of trees in suburban gardens.

21. [21]
    Leaf litter in itself does not constitute a substantial, ongoing and unreasonable interference with a neighbour’s property.^[2]
22. [22]
    The work of controlling the branches and trees so they do not extend over the dividing fence is, as stated, the responsibility of the tree keeper. I shall order Ms Isaac to accept responsibility for such work. If the work is not done then Ms Lake shall be entitled to engage an arborist to do the work, pay for it, and then recover that cost from the tree keeper, Ms Isaac.
23. [23]
    In accordance with the recommendation of the assessor, that work should be done each year, sometime between January and March. The first pruning should occur in 2024.