King v Corry[2024] QCAT 184

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant and respondent are neighbours sharing a dividing fence between the two properties. The applicant lodged an application in this Tribunal on 19 January 2022 claiming that:

   1. The subject tree on the respondent’s property, a mango tree, is approximately 25 metres tall and about 18 metres in diameter and has overhanging branches which are more than 2.5 meters above the ground, and which extend into the applicant’s land more than 50cm from the common boundary.
   2. The subject tree on the respondent’s property has caused substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of their land due to:
      1. Excessive leaf litter which had been occurring for over 10 years since they bought the property in 2010, which required the applicant to clean their pool and surrounds daily to prevent staining of the pool surface and clean their gutters regularly.
      2. Severe obstruction of sunlight meaning the applicant was unable to install solar panels.
   3. No damage or injury has been caused but it is likely within the next 12 months due to the tree’s extreme size and close proximity to the pool areas and house. The applicant considered it very probable if a cyclone were to cross land in Mackay the tree would cause serious damage to the applicant’s property.
   4. The tree is too big for suburbia and is causing the applicant to feel overwhelmed by its size and proximity to the applicant’s house and pool.
   5. The applicant attempted to resolve the dispute by over-the-fence discussion and letters and a previous tree was removed in March 2021.
2. [2]
   The applicant sought the following orders:

   1. To remove the trees.
   2. An order the respondent pay the costs for carrying out these orders.
3. [3]
   The respondent lodged a response with the Tribunal on 21 April 2022 stating:

   1. The respondent denies that the subject tree overhangs the applicant’s property and states the trunk is 13 metres inside the respondent’s property and the branches have never overhung the diving fence with the applicant’s property.
   2. The respondent denies that the tree currently has any effect on the applicant’s use or enjoyment of their land, or that it will in the future, in that:
      1. The tree was on the property when the respondent and applicant acquired their respective houses.
      2. The respondent denies there is excessive leaf litter from the mango tree as it does not overhang the boundary and there are other trees on the applicant’ property including a number of palms which are the cause of the leaf litter on the applicant’s property.
   3. The tree has been of a significant size since her family began residing at the property in 1971 and has never caused any injury or damage and is unlikely to do so within the next 12 months.
   4. The tree had withstood all extreme weather events since 1971 and is extremely unlikely to cause serious damage in the next 12 months.
   5. The tree has historical value, is estimated to be 100 years old and contributes to the local ecosystem, and to biodiversity, the scenic value of the land, the amenity of the land and privacy and protection from sun and impacts on the water table in a positive manner.
4. [4]
   The respondent sought the Tribunal dismiss the application and sought orders about the applicant ceasing contact with the respondent about the removal of the tree, that the applicant is to stay off the respondent’s property and the applicant cannot communicate over the fence and can only communicate in writing.

Statutory framework

5. [5]
   The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute did arise, then the legislation facilitates for the resolution of that dispute.^[1]
6. [6]
   The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.^[2] The tree involved in this application is undeniably a tree as provided for in the Act and this is confirmed in the Tree Assessment Report.^[3]
7. [7]
   The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.^[4] The affected land must adjoin the land on which the tree is situated^[5] or would adjoin the land if it were not separated by a road.^[6] As the applicant and respondent are neighbours who reside next to each other on adjourning land, I am satisfied that these properties meet the definition of “land” as required under the legislation.
8. [8]
   Land is affected by a tree if branches from the tree overhang the land;^[7] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,^[8] serious damage to the land or property on the land,^[9] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[10]
9. [9]
   The Act provides for who is a tree-keeper.^[11] That is, if the land on which the trees are situated is a lot recorded in the freehold land register.^[12] For the purposes of this application, the tree is situated on the land belonging to the respondent, and therefore the respondent is the tree-keeper for all the trees subject to the application.
10. [10]
    The Act makes provision for the responsibilities of a tree-keeper, including ensuring that the tree does not cause serious injury to a person; or serious damage to a person’s land or any property; or cause substantial and ongoing and unreasonable interference with the use and enjoyment of that land.^[13] The primary consideration for the Tribunal in deciding an application is safety.^[14]
11. [11]
    The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,^[15] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,^[16] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[17] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[18]
12. [12]
    For interference that is an obstruction of sunlight or view the tree must rise at least 2.5 metres above the ground^[19] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land, or a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.^[20]
13. [13]
    Without limiting the powers of the Tribunal to make orders under s 66(2) of the Act, the Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order under s 66.^[21] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.^[22]

Tree Assessor’s Report

14. [14]
    On 9 August 2022, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.
15. [15]
    On 16 November 2022 Mr Steven Richards, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 18 November 2022. Relevantly, the report states:

    1. The subject tree is wholly located within the respondent’s property and is positioned 13 metres to the east of the dividing fence. The tree does not extend beyond the dividing fence and branch extremities are at least 1.5 to 2 metres within the respondent’s property.
    2. The tree is in good health and estimated to be 100 years of age and part of an original orchard, and it easily predates the surrounding infrastructure. The tree was in situ before the surrounding dwellings were built.
    3. The applicant’s dwelling was constructed in the late 1980s and the pool was installed sometime in the early 2000s. The applicant purchased the property in 2011.
    4. The tree had not caused any additional interference that would not have been present at the time of the subdivision 40 years prior. 
    5. The tree confers numerous benefits to both native fauna and amenity and aesthetic benefits to the immediate area. It provides an outdoor area which is akin to a covered patio which can be used for entertaining and protects an understory garden which would otherwise not be able to grow.
    6. The owners who installed the pool did so with full knowledge of the presence, size and proximity of the tree. Asking for an ancient tree on an adjacent property to be removed to cater for the new installation is an unjust request considering the entire footprint of the tree is within the confines of its own boundaries and has been there prior to any development.
    7. Due to the natural morphology for mango trees, attempts to reduce height or contain the tree dramatically alter their form and leave them susceptible to sun scolding.
    8. Removal of the subject tree would be an enormous loss to both the area and local history.
    9. No tree works are recommended at this time.
16. [16]
    The Tribunal made directions on 7 June 2023 for filing of submissions by both parties of any written submissions in response to the tree assessor’s report. The parties complied and the applicant confirmed they dispute the tree assessor’s report and say the tree does overhang the boundary and is causing an unreasonable interference with his property. The respondent disagreed with this and agreed with the tree assessor’s report.
17. [17]
    The Tribunal also directed the matter would be determined on the papers without an oral hearing. This is that decision.

Findings of the Tribunal

18. [18]
    All material filed by both the applicant and respondent has been considered. A considerable volume of the material deals with prior tree trimming and the removal of another mango tree in 2021, referred to in the material as “tree 1”. This has limited relevance to the current application, other than to demonstrate the past attempts to try and resolve the dispute, and evidences that one mango tree has been removed which would reduce the leaf litter that the applicant experienced and complained of in his letters from 2020 and 2021, noting there is now only one tree not two and the remaining tree is not as close to the boundary fence. 
19. [19]
    I am satisfied of the interpretation and jurisdictional issues in sections 45 to 49 and s 61 of the Act and find that these are trees within the definition under sections 4 and 5 of the Act, the applicant and respondent are the registered owners and appropriate parties, and the tree is on the respondent’s property making the respondent the tree-keeper. As it is alleged (albeit disputed by the respondent) that the land is affected by the trees due to the trees causing a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, there is jurisdiction for the Tribunal to hear this matter.^[23]
20. [20]
    As the applicant is seeking the trees be removed, s 72 of the Act has been considered, which recognises the importance of trees in residential neighbourhoods and makes it clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved. If there is a finding that the tree is affecting the applicant’s land, then I am required to consider various matters including the contribution to amenity the trees make to the Respondent’s land and their contribution to privacy and protection from noise,^[24] and have taken into account the requirements under s 73 to the extent that is required and the findings in the tree assessor’s report in relation to this.
21. [21]
    The tree assessor raises the fact that the tree has particular historical and social value.  The applicant does not dispute this but seeks to minimise it by referencing that the other trees were removed because they caused a hindrance to the development with no consideration for the local fauna.
22. [22]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied the applicant has made a reasonable effort to reach agreement with the respondent and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues.
23. [23]
    The applicant has given the copies of the application to the respondent as required under s 63 of the Act.
24. [24]
    In terms of whether the applicant’s land is affected by the tree as required under section 61 of the Act, the applicant alleges both that there are overhanging branches and that the trees are causing substantial, ongoing unreasonable interference with the applicant’s use and enjoyment of their land. This is disputed by the respondent and whether this is actually a tree which is affecting a neighbour’s land is the key issue in dispute.
25. [25]
    What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,^[25] Judicial Member Dodd said:

1. [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.
2. [24]
   [It] require[s] a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

Overhanging branches

26. [26]
    The applicant asserts that tree branches overhang the boundary fence. This is disputed by the respondent. The photos contained in the application do not assist with determining this issue as while they show the tree is near the fence, it is unclear as to what if any branches overhang.
27. [27]
    The respondent provided two photos in the response at annexure KC04 which appear to demonstrate that the tree is within their property and there are no branches overhanging the boundary fence.
28. [28]
    The tree assessor’s report states that the subject tree does not extend beyond the dividing fence and branch extremities are at least 1.5 to 2 metres within the respondent’s property boundary. It is noted that this is disputed by the applicant. The photos contained in the tree assessor’s report are not of great assistance to determining this issue.
29. [29]
    Given the photos attached to the Response taken from the fence line and the findings of the tree assessor I find that there is insufficient evidence to demonstrate that any branches from the subject tree overhang the boundary into the applicant’s property. 

Unreasonable interference from leaf litter

30. [30]
    The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the land.^[26] Maintenance of the applicant’s property is their responsibility.
31. [31]
    For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds, or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
32. [32]
    Whilst no doubt inconvenient, leaf litter is a natural incident of suburban living. The tree assessor’s report did not identify any evidence of substantial or excessive leaf litter. I accept that there could be some interference with the applicant’s use and enjoyment of the land arising out of plant matter dropping onto their property. However, there has been no evidence provided by the applicant to evidence the degree of any leaf litter.
33. [33]
    The applicant asserts that the leaf litter is excessive and relentless, resulting in their pool and surrounds being full of leaves and rubbish from the mango tree. The applicant asserts there have been impacts from the excessive leaf litter in that when he rented the property out, he had two tenants break their respective leases due to the “unstoppable mess in the pool and the surrounds”.
34. [34]
    The applicant has, however, provided no evidence to support this and there are no statements from any previous tenants raising issues with the mango tree. The photos the applicant provided with their application do not show any excessive leaf litter in or surrounding the pool.
35. [35]
    It is also noted that the applicant’s pool and house is surrounded by a number of other trees, including a large palm which overhangs the applicant’s roof. Noting the subject mango tree does not overhang the boundary fences and is wholly located in the respondent’s property, without clear evidence, it would be difficult to determine what leaf litter arises from the mango tree and what arises from the trees on the applicant’s property.
36. [36]
    Accordingly, I am not satisfied that the leaf litter on the applicant’s land from the respondent’s tree is causing or is likely to cause substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the applicant’s land within the next 12 months.

Unreasonable interference – Obstruction of sunlight

37. [37]
    The applicant alleges the tree is causing substantial, ongoing, and unreasonable obstruction of sunlight to the applicant’s roof, meaning they are unable to get solar panels installed. In the circumstances, I have considered the matters set out in s 75 of the Act.
38. [38]
    An obstruction of sunlight is interference only if:

    1. the tree rises at least 2.5 metres above the ground; and
    2. the obstruction is a severe obstruction of sunlight to a window or roof of the dwelling on the neighbour’s land.^[27]
39. [39]
    I am satisfied that the tree in this matter does rise more than 2.5 metres above the ground and the obstruction of sunlight alleged is in relation to the applicant’s roof.
40. [40]
    The applicant does not have solar panels and as such there is no current impact by any interference of the sunlight on the roof. However, he asserts that he installed a new roof so that he can get solar panels but has been advised that solar panels are not viable due to the shade caused by the respondent’s mango tree.
41. [41]
    The applicant provided no independent evidence in the form of any photographs or expert evidence to demonstrate any substantial obstruction of sunlight at present or that it is likely to occur within 12 months. Nor has he provided any independent evidence from any solar company to support his position that solar panels are not viable due to the shading to the roof caused specifically by the mango tree.
42. [42]
    The tree assessment report does not support a finding of any current substantial obstruction. The photo in the tree assessor’s report demonstrates some shading on the top right of the roof from another tree on the applicant’s property, potentially a palm tree, but no shading caused by the mango tree.
43. [43]
    The tree assessor noted that the subject tree has been in situ for 100 years and easily predates all surrounding infrastructure. Accordingly asking for an ancient tree on an adjacent property to be removed to cater for a new installation is an unjust request considering the entire footprint of the tree is within the confines of its own boundaries and had been there prior to any development.
44. [44]
    In response to the tree assessor’s report the applicant asserts that he believes he is “entitled” to enjoy the benefit of solar panels and notes solar power is recommended by the State and Federal government.
45. [45]
    While undoubtedly solar panels have a positive environmental impact and are promoted by State and Federal government, so do trees, and there is no inherent right to solar panels. This is particularly so where the installation of solar panels would require the removal of a healthy tree.
46. [46]
    This tree in particular has existed since long before the applicant purchased the property and when he purchased the house, he did so with the knowledge that there was a large tree on the neighbouring property. He cannot now complain about the tree and ask that it be removed because he does not like it or because he says it causes him distress due to its size, when it was already a large tree when he purchased the house.
47. [47]
    In addition, insufficient evidence has been provided to support that the tree is in fact causing excessive shading and impacting on the ability of the applicant to install solar panels. Photographs of the applicant’s roof are provided by the respondent which demonstrated that there is some minor shading to the bottom edge of the roof from the respondent’s trees but there is also shading to one side of the roof by the applicant’s palm in the morning photo taken at 7.30am. There is no shading or impact from the respondent’s tree on the applicant’s roof in the photos taken at midday or 3.30pm.
48. [48]
    As such there is insufficient evidence to demonstrate any substantial, ongoing, and unreasonable interference of the trees based on this concern.

Serious Injury and Damage.

49. [49]
    The applicant does not allege the trees have caused or are causing injury or severe damage to the applicant’s land or property on the applicant’s land, but allege that it is likely to with the next 12 months due to it being very probable that if a cyclone were to cross the land in Mackay it would cause damage and injury could occur due to the tree being extremely large and in close proximity to the applicant’s pool and house. 
50. [50]
    While it is understandable that the applicant has concerns about potential for damage if there was a cyclone, there needs be to more than just concern, and the evidence needs to support that serious injury or significant damage is likely to occur within the next 12 months.
51. [51]
    While there is always a risk that with an extraordinary weather event or cyclone there may be damage caused by trees, there is no evidence that this mango tree creates any greater risk than any other tree surrounding the applicant’s house.
52. [52]
    In fact, noting the tree is estimated to be 100 years old and as such has sustained numerous other severe weather events, and the tree assessor’s report noted it to be in good health, the evidence would support that there is a very low risk that this tree would cause any risk of significant damage or serious injury in the next 12 months.
53. [53]
    Accordingly, there is no evidence to support any finding that the mango tree is likely to cause serious injury or significant damage within the next 12 months.

Decision

54. [54]
    Based on the lack of evidence to support the applicant's claim that there is a severe obstruction or that excessive leaf litter is causing an unreasonable interference, either now or in the next 12 months or that there, I am unable to find that the applicant’s land is affected by the subject tree due to substantial, ongoing and unreasonable inference with the applicant’s use and enjoyment of their land.^[28]
55. [55]
    As the tree does not overhang the boundary fence and there is no unreasonable interference with the applicant’s use of their property or the likelihood of severe damage or serious injury in the next 12 months there is no jurisdiction to interfere with this tree or make any orders and accordingly, I refuse to make any orders requested by the applicant.
56. [56]
    As there is no jurisdiction to make an order about the tree, there is no need for the Tribunal to fully consider and make findings in relation to the s 73 factors. However, the tree’s historical and social value, the contribution to the local ecosystem and the amenity of the land would be a significant consideration if any future issues arise. As this is one of the last remaining trees from the original orchard, the tree has historical value and provides benefits to both native fauna and amenity and aesthetic benefits to the immediate area.
57. [57]
    The applicant and respondent both incurred costs of $500 in contributing to the tree assessor’s report in this matter, as ordered on 9 August 2022. The starting point for costs is that each party must bear their own costs,^[29] however the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.^[30]
58. [58]
    The Tree Disputes Practice Direction 7 of 2013 directs that the payment of the assessor’s costs may be adjusted, as between the parties, by any final order made by the Tribunal in the proceedings.
59. [59]
    In the circumstances of this matter, I am satisfied that the interest of justice warrants the adjustment of the tree assessor’s costs. The factors which contribute to this are that  the applicant’s complaint is against a  tree which was a well-established large tree existing prior to the applicant purchasing the property; and the applicant has been unable to establish that the tree overhangs the property; he does not allege any damage or injury has been caused and has been unable to evidence the tree causes any interference or will cause any interference, damage or injury within the next 12 months. Accordingly, the application was without merit.
60. [60]
    Therefore, I determine the applicant should cover the full cost of the tree assessor’s report and as such I order the applicant is to pay the respondent $500 within 28 days, being the costs already paid by the respondent in relation to the tree assessor’s report.
61. [61]
    The respondent seeks orders about how the applicant is to communicate with her and/or to restrict communication. There is no such power to for the Tribunal to make these orders in a tree dispute.
62. [62]
    The orders made in this matter are:

    1. The applicant is to pay the respondent $500 within 28 days being the respondent’s costs associated with the tree assessors report.
    2. The application is dismissed.