McLachlan v Williams[2024] QCAT 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicants live in a double story house situated on a 405m² parcel of land.  
2. [2]
   The respondent lives in a house on adjoining land.
3. [3]
   There are eleven trees (‘trees’) on the respondent’s land. The trees are situated approximately one meter from a fence which divides the two parcels of land.
4. [4]
   The applicants move for the Tribunal to make an order removing the trees because:^[1]

   1. the soil on their allotment is highly reactive and they contend direct and passive damage to infrastructure will occur if the trees remain in place.
   2. the trees may cause injury if they topple or branches from the trees drop.
   3. the trees are a nuisance, they are interfering with the reasonable enjoyment of their land by shedding branches, they are restricting sunlight, and they are preventing the applicants from installing solar panels.
   4. tree roots have entered stormwater pipework on their property.
   5. the trees have damaged their fence.
   6. The trees have caused flooding in their house.
5. [5]
   The applicants rely on a report by Baxter Consulting Engineers, dated 12 July 2019 (‘Baxter report’). Concerning the trees, the Baxter report relevantly states:^[2]

A line of significant trees was observed to be present continuing along the left side of the property.

A line of significant trees is able to cause a drying effect to reactive clay foundation material a distance from the tee 1.5 times the mature height of the tree.

It is recommended that the significant trees be removed and the root systems poisoned to prevent regrowth.

….

It should be noted that the removal of the trees will likely result in a normalising (increase) in the level of moisture in the reactive clay foundation material with a corresponding lifting of level to the foundation material.

That is, distress to the slab and footing system is highly likely to occur with the presence of the trees remaining and in the event the trees are able to be removed.

The client should monitor the walls and floor for signs of significant movement and cracking.

In the event that significant movement and cracking to the floor surface is observed then the engineer should be contacted to arrange an inspection.     

6. [6]
   Additionally, the applicants rely on a report by Arboricultural Scientist Jason-jay Naylor (‘Naylor report’), dated 25 March 2022.  Relevantly, the Naylor report states:

   1. Mr Naylor is in general agreement with the findings and conclusions of the Baxter Report.
   2. the majority of the trees are classified as inappropriate specimens from an arboricultural perspective and are problematic now which will only increase in the near foreseeable future.
   3. the subject trees are defined as a peculiar form of nuisance and interfere with the reasonable enjoyment of the applicants’ land.
   4. the continual impacts from the tree root encroachment and convenient enjoyment of land cannot be successfully mitigated through conventional arboricultural practices. Continual tree pruning will result in high expenditure and elongated branch formation which would influence branch and/or total tree failure. The placement of a root barrier less than 1 meter from the lower trunk region will likely result in total tree failure.
   5. the retention of the subject trees is no longer viable and pose engineering concerns as outlined within the supporting professional reports.
7. [7]
   Lastly, the applicants rely on a plumbing and drainage report by BT Plumbing Service, dated 19 November 2019 (‘BT Report’). The report states that tree roots appear to be entering the connector between the stormflex branch lines and the 100mm main line on the applicants’ land.

Relevant law

8. [8]
   Under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), the Tribunal is only permitted to make an order about a tree affecting the neighbours land if it considers such an order is appropriate to:

   1. prevent serious injury to any person; or
   2. 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.
9. [9]
   If future serious injury, serious damage or interference is contended, it must be likely to occur within the next 12 months.^[3]

Is an order necessary to prevent serious injury to any person within 12 months?

10. [10]
    The applicants do not specify which tree or trees create a risk of serious injury. They concede that they do not know whether the trees could cause serious injury to any person within the next twelve months.^[4] The various reports the applicants have filed in the Tribunal are silent about the issue. I consider there is insufficient evidence for the Tribunal to find that an order is necessary to prevent serious injury to any person within 12 months.

Is an order necessary to remedy, restrain or prevent serious damage to the neighbour’s land or property within 12 months?

11. [11]
    I am not persuaded that serious damage to the applicants’ land or property has, or will, occur if the trees are not removed, or that it will occur in the next 12 months.

Purported damage to the Slab and Footings

12. [12]
    Although the Baxter Report states that the trees are able to cause a drying effect to reactive clay foundation material, the report fails to express the probability or likelihood of such an event occurring or when it might occur. Further, the report fails to quantify the degree of damage to the property that might ensue from the purported drying effect. Therefore, I do not consider there is sufficient evidence to make findings about the likelihood of damage to the applicants’ property, or whether such damage is ‘serious’ within the meaning of s 66 of the Act.
13. [13]
    Additionally, the Baxter Report states that “distress to the slab and footing system is highly likely to occur with the presence of the trees remaining and in the event that trees are able to be removed”. I interpret that to mean that damage to the applicants’ house is likely occur irrespective of whether the trees are removed, or they remain. The Baxter Report concludes with the warning “The owners should be aware that ongoing cracking and movement separation is expected to occur to the residence in a site of this nature”.^[5] Putting the respondent to the cost of removing the trees, in circumstances where there is limited utility in doing so, because ongoing damage is inevitable due to the reactive nature of clay soil site, is unwarranted. 
14. [14]
    I consider the Naylor Report to be of limited assistance in deciding the issue of whether serious damage to the applicants’ land is likely to occur. Mr Naylor’s opinions are founded primarily on conclusions reached in reports prepared by others, particularly the authors of the Baxter Report and BT Report.^[6] Whilst Mr Naylor is undoubtedly a very experienced Arboricultural Scientist, the other reports touch on engineering and plumbing matters which, respectfully, fall outside Mr Naylor’s expertise as an Arboricultural Scientist.

Purported Flooding

15. [15]
    The applicants contend the trees’ root systems have contributed to flooding in their house.^[7] However, that contention is not borne out by the expert evidence. The Baxter report attributes the flooding of the pantry floor surface in the house to the build-up of excess moisture in the cavity on the surface of the Edge Beam between the external brickwork (of the house) and the formed edge of the slab.^[8]

Purported damage to pipework

16. [16]
    Concerning, the damage to the connector pipe between the applicants’ stormflex branch lines and the 100mm main line, there is no evidence the trees caused that damage. Whilst the BT Report noted a hole in the connector, it did not conclude that the trees caused that damage. Notably, the Baxter Report states:^[9]

    1. the applicants told them Swivel Joints and Expanda joints were not installed at the time the house was originally constructed.
    2. it is possible that Swivel Joints and Expanda Joints have not been provided to any other areas of in-ground drainage in accordance with requirements.
    3. the site has a calculated characteristic surface movement of approximately 80 to 85mm. This means the seasonal rise and fall of the ground surface is categorised as extreme.
    4. Swivel Joints and Expanda joints are required for the in-ground sewer and stormwater pipes to reduce cracking to pipework as a result of seasonal heaving and lowering of ground levels.
17. [17]
    The findings above cause me to conclude that the most probable cause of the damage to the connector, was the failure by the home builder to install Swivel and Expanda Joints, and the reactive nature of the clay soil on which the house is built, not the trees. Photographs annexed to the BT report appear to show a small section of connector pipe partially filed by very small diameter feeder roots. It seems improbable that those small-diameter roots could have penetrated the connector in the manner the applicants contend.
18. [18]
    Additionally, there are further deficiencies with the pipework that are entirely unconnected with the trees. For example, the BT Report states that there is a dent in the pipe which restricts its flow, the pipes are not connected to a rubble pit whereas they should be connected to the kerb, and there are holes drilled into the top of the pipe which prevent the conduct of static tests.

Purported damage to the fence

19. [19]
    To support their contention that the trees have damaged their fence, the applicants rely on a photograph purporting to show buckling to the fence.^[10] That photograph does not persuade me that the trees are causing damage to the fence. None of the trees in the photograph appear to be touching the fence. Any assertion that the tree roots are damaging the fence is speculative and unsupported by evidence. The fence appears to be old and weathered. It is likely, in my view, that the fence is simply buckling from age. Accordingly, I do not propose to make orders in respect of the fence.

Are orders appropriate to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land?

20. [20]
    Concerning the applicants’ contention that the trees interfere with the reasonable enjoyment of their land, they made identical claims in in a previous tribunal proceeding NDR142-17. In dismissing that application, Member Hughes (as he then was) aptly observed:^[11]

In particular the application must fail because of:

1. a)
   No evidence of the size health, maturity and stability of the trees to determine whether they are a safety risk.
2. b)
   No evidence of the alleged incidences of branches falling the size of the branches claimed to have fallen, including when and how they fell and the frequency.
3. c)
   No evidence of any link with the alleged incidences of branches falling and any severe weather events and the nature and type of weather event.
4. d)
   The applicants’ statement of their intent to install solar panels on their roof is not sufficient to establish interference from obstruction of sunlight – obstruction of sunlight only applies if the obstruction is a severe obstruction of sunlight to window or roof. ^[12]
5. e)
   No evidence of how the alleged blocking of sunlight constitutes a substantial, ongoing and unreasonable interference, including light meter readings and evidence of shading on a window or roof.
6. f)
   No evidence of how the dropping of litter and debris constitutes a substantial ongoing and unreasonable interference given that:

This Tribunal has determined that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis of ordering removal of, or intervention with, an urban tree. That approach is consistent with a recent decision in the Court of Appeal in Graham & Ors v Welch.^[13]

7. g)
   No evidence of how the alleged blocking of gutters, downpipes and drains has caused ‘serious damage’ to the applicants’ house and how the alleged blocking is not the result of the ‘natural incidence of a suburban landscape that includes trees’.^[14]

21. [21]
    Respectfully, I concur with Member Hughes’ findings in NDR142-17. Those findings bear relevance to the present proceeding because the deficiencies in the applicants’ evidence have not been remedied in their present application. Whilst the applicants have obtained an arborist report, as I previously indicated, I consider it to be of limited assistance because the report largely adopts the findings in the Baxter Report and BT Report.
22. [22]
    The Naylor Report has further deficiencies:

    1. The report states that “it is highly likely tree roots have breached the applicants’ property” but fails to set out the extent of the breach or the impact on the applicants’ house.
    2. Mr Naylor concurs with the contention that “damage to infrastructure will occur”^[15] (if the trees remain) but fails to provide his methodology for reaching that conclusion.
    3. The report is unclear about whether Mr Naylor conducted a site inspection of the applicants’ land. The impression the report conveys is that he merely relied on photographs provided by the applicants.
23. [23]
    Lastly, the photographs annexed to the applicants’ present application appeared to me to show only small quantities of leaf litter in their gutters.

Section 73 Considerations

24. [24]
    I have turned my mind to the ‘general matters’ the Tribunal must consider at s 73 of the Act. Notably, s 73(k) requires that I must consider the type of tree, including whether the species of tree is a pest or a weed (however described). Some of the trees on trees on the respondent’s land are woody weed species.^[16] Nevertheless, I cannot order their removal, because I am not satisfied that they are impacting safety, land or property, or cause interference within the meaning of s 66 of the Act.

Section 75 Considerations

25. [25]
    Relevantly, where a neighbour alleges a tree has caused, is causing, or is likely to cause, serious damage to the neighbour’s land, or property on the neighbour’s land the Tribunal may consider:^[17]

    1. anything other than the tree that has contributed, or is contributing, to the damage, including any act or omission by the neighbour; and
    2. any steps taken by the neighbour to prevent or rectify the damage or the likelihood of damage.
26. [26]
    It is plain to me that there are several factors contributing to damage to the applicants’ property which have nothing to do with trees, namely the reactive nature of the clay soil on site and the inadequate construction of their house. There is no evidence that the applicants have taken any steps remedy those issues.
27. [27]
    Lastly, where unreasonable interference with use and enjoyment is alleged, s 75 of the Act provides that the Tribunal may consider whether the tree existed before the neighbour acquired the land.^[18] The respondent’s trees were in place before the applicants constructed their house. The applicants knew that they were building their house on reactive soil. They chose to build their house in such close proximity to the trees. Undoubtedly, they must have known that the probable consequence of doing so would be that their property would be impacted by leaf litter and reduced light levels, at least to some degree. It seems unfair to put the respondent to the expense of removing the trees when the applicants deliberately situated their house adjacent to the trees.

Conclusion

28. [28]
    For the reasons above, I am not persuaded that it is appropriate to for the Tribunal to make orders in relation to the trees to prevent serious injury to any person, or to remedy, restrain or prevent:

    1. serious damage to the applicants’ property; or
    2. substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land.
29. [29]
    Accordingly, I dismiss the application.