Nethercott v Waddell[2024] QCAT 190

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Applicants, Peter and Eileen Nethercott (‘Nethercotts’) are the owners of a residential house property situated at 24 Clifton Street, Northward, Townsville. They live in the house.
2. [2]
   The Nethercotts’ property has a common side/back boundary with the residential house property situated at 29 Gregory Street, Northward, Townsville owned by the Respondents, Gary and Belinda Waddell (‘Waddells’).  They also live in the house.
3. [3]
   This hearing took place by Teams and remote conferencing on 17 April 2024. Present at the hearing were Peter Nethercott and Gary Waddell.
4. [4]
   The Nethercotts filed an application (‘Application’) in the Tribunal on 3 August 2022 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’). The Nethercotts complain that the Waddells have planted approximately 12 to 14 lilly pilly trees and a foxtail palm directly against the common fence line and the roots of these trees are causing problems with the underground drainage pipe system that the Nethercotts have constructed. The Nethercotts are seeking an order for the removal of the trees and compensation for the cost of unblocking the pipe.
5. [5]
   The position of the common boundary fence is shown on page 12 of the Application. Photographs of the trees and the roots protruding under the fence are annexed to the Application.
6. [6]
   The Nethercotts say that the lilly pillys have been planted by the Waddells on their property in the 100mm gap between the common boundary fence and the retaining wall. See photo 10 annexed to the Application. The Waddells say that the lilly pillys have been planted to create privacy and amenity in their back yard.
7. [7]
   The foxtail palm is planted further into the corner of the backyard of the Waddells’ property. See photo 8 of the Application. There was some discussion at the hearing about the time that the trees were planted by the Waddells. In the end there was general acceptance that the trees, including the foxtail palm, were planted after the Nethercotts built their garage complex as shown photographs 6 and 7 annexed to the Application.
8. [8]
   The Nethercotts allege that in rain events water should drain through the underground agricultural pipe (‘Ag pipe’) installed at the rear of their property, adjacent to the common boundary fence. They say that roots from the lilly pillys and the foxtail palm tree have entered the Ag pipe and caused a blockage in the Ag pipe. They say that this blockage causes water to pool on their property and causes water marks on their garage. There were no photographs of these water marks provided to the Tribunal. The Nethercotts also say the roots may be causing damage to the concrete underneath the Nethercotts’ garage.
9. [9]
   The Waddells say that the Ag pipe should not have been installed so close to the back fence because the holes in the Ag pipe allow the roots to enter the Ag pipe. The Waddells also say that the slope of the Nethercotts’ property should allow for natural drainage and the blocked pipe should not cause water to pool on the Nethercotts’ property.
10. [10]
    The Waddells also say that the larger roots which are alleged by the Nethercotts to be from the foxtail palm may be roots from other large trees that are on another neighbour’s property which is adjacent to the Nethercotts’ property. They say one of these trees is a ficus variety which they say are known to have very invasive root systems.
11. [11]
    No independent evidence was provided to the Tribunal to support the Waddells’ position.
12. [12]
    Nethercott has provided photographs and a report from No Bull Plumbing and Home Maintenance (‘Plumber’) which support the Nethercotts’ claim about the lilly pilly roots entering the Ag pipe and causing a blockage in the Ag pipe. The Plumber has invoiced the Nethercotts in the sum of $1,450 to unblock the Ag pipe and the use of a camera to show the roots.
13. [13]
    The Nethercotts say that the trees were planted in 2018. They say that there were no problems with the Ag pipe drainage system until the trees grew bigger and caused the problems in 2022.
14. [14]
    The Plumber was not called to give evidence or provide a sworn statement. He did inform the Nethercotts that the Ag pipe should be unblocked at least once a year and the cost of this work would be approximately $650 per annum.
15. [15]
    No other evidence was called or presented by the parties. For example, no party called an independent builder, plumber, arborist or engineer.

LEGISLATION

16. [16]
    The relevant provisions of the NDR Act are s 45, s 46, s 48, s 52 and s 66. These provisions are set out:

45 Meaning of tree

1. Tree means—

1. any woody perennial plant; or

2. any plant resembling a tree in form and size; or

Examples—

bamboo, banana plant, palm, cactus

3. a vine; or

4. a plant prescribed under a regulation to be a tree for this chapter.

2. Tree includes—

1. a bare trunk; and

2. a stump rooted in the land; and

3. a dead tree.

3. However, tree does not include a plant prescribed under a regulation not to be a tree for this chapter.

46 When is land affected by a tree

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; or

2. would adjoin the land on which the tree is situated if it were not separated by a road.

48 Who is a tree-keeper

1. The following person is the tree-keeper for a tree—

1. if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994—the registered owner of the lot under that Act;

2. if the land on which the tree is situated is subject to a lease or licence under the Land Act 1994—the lessee or licensee under that Act;

3. if the land on which the tree is situated is subject to an occupation permit or stock grazing permit under the Forestry Act 1959, section 35—the grantee for the permit;

4. if the land on which the tree is situated is subject to a stock grazing permit under the Nature Conservation Act 1992—the grantee for the permit;

5. if the land on which the tree is situated is common property for a community titles scheme under the Body Corporate and Community Management Act 1997—the body corporate for the community titles scheme;

6. if the land on which the tree is situated is common property comprised in a plan under the Building Units and Group Titles Act 1980—the body corporate for the plan;

7. if the land on which the tree is situated consists of all or part of a reserve under the Land Act 1994 other than a reserve mentioned in section 42(1)(e)(i) or (ii)—the trustee of the reserve.

2. Nothing in this chapter confers ownership of a tree.

52 Responsibilities of a tree-keeper

1. A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.

2. A tree-keeper is responsible for ensuring that the tree does not cause—

1. serious injury to a person; or

2. serious damage to a person’s land or any property on a person’s land; or

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

3. This section does not create a civil cause of action based on a breach of a tree-keeper’s responsibilities.

Note—

This section is intended to help a tree-keeper and neighbours resolve any issues about a tree without a dispute arising. However, this section does not create a separate cause of action. This chapter provides ways of dealing with some issues that fall within a tree-keeper’s responsibilities under this section.

66 Orders QCAT may make

1. Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.

2. QCAT may make the orders it considers 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.

3. However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—

1. the tree rises at least 2.5m above the ground; and

2. the obstruction is—

1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or

2. severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

4. Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.

5. Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

1. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

•an order that requires the removal of the tree within 28 days

•an order that requires particular maintenance work on the tree during a particular season every year

•an order that requires particular work to maintain the tree at a particular height, width or shape

2. require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;

3. require a person to apply for a consent or other authorisation from a government authority in relation to the tree;

4. authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;

5. require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;

6. require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;

7. require a report by an appropriately qualified arborist.

6. In this section—

window includes a glass door, window forming part of a door, skylight or other similar thing.

FINDINGS

17. [17]
    I found both Peter Nethercott and Gary Waddell to be open and honest, although extremely hostile and aggressive to each other. I accept their evidence. I will comment on their relationship later.
18. [18]
    The Waddells are the tree keepers of the lilly pilly trees and the foxtail palm. See s 48 of the NDR Act. Roots of a tree are part of the tree pursuant to the provisions of s 45 of the NDR Act. Also see the Tribunal decision in Cacopardo v Woolcock & Anor [2017] QCAT 214.
19. [19]
    I accept the evidence of the Nethercotts and the Plumber that the roots of the lilly pilly trees are entering the Ag pipe and causing blockage which in turn causes drainage problems on the Nethercott’s property which will require annual maintenance to unblock. The evidence that supports my finding is Peter Nethercott’s testimony/ statements, photographs annexed to the Application and the Plumber’s account/photographs annexed to Peter Nethercott’s submission dated 9 March 2023. 
20. [20]
    Gary Waddell has made claims about the Ag pipe drainage system that the Nethercotts have installed and the drainage of water on the Nethercotts’ property. He says that a solid pipe system should have been installed by the Nethercotts as this would have prevented roots from entering into their drainage system. The question of an appropriate design for a drainage system erected on the Nethercotts’ property is a matter for the Nethercotts.
21. [21]
    The Waddells also say the large tree roots may be emanating from other trees on another neighbour’s property. However, the Waddells have not provided any independent evidence from an engineer, arborist or any other suitably qualified expert to support their claims.
22. [22]
    Peter Nethercott says that the foxtail palm is also causing problems and that he and the Plumber were not able to undertake a further inspection because of the concrete from the Nethercotts’ garage complex. Peter Nethercott said that he shook the foxtail palm, and he could see the larger roots move.
23. [23]
    At the hearing I also questioned whether the photographs relating to the roots of the foxtail palm were sufficiently clear and whether they demonstrate that these roots are causing any blockage in the Ag pipe. I also note that the Nethercotts have not called an arborist to support their claims about the foxtail palm.
24. [24]
    The onus is on the Nethercotts to prove their claims on the balance of probabilities. That is what is more probable than not.
25. [25]
    Pursuant to s 46 of the NDR Act land is affected by a tree if the tree has caused or is likely within the next 12 months to cause serious damage to any property on the land or substantial, ongoing and unreasonable interference with the use and enjoyment of the land. Pursuant to s 52 of the NDR Act, it is the responsibility of the tree keeper to ensure that a tree does not cause damage or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the land.
26. [26]
    On the evidence before me I find that the roots of all the lilly pillys on the Waddells’ property are entering the Ag pipe system on the Nethercotts’ property and causing it to become blocked. This in turn causes water to pool on the Nethercott’s property. The annual cost to unblock the Ag pipe is $650 per annum.
27. [27]
    Townsville is situated in the sub tropics. It is almost certain that there will be frequent rain events in a 12-month period.
28. [28]
    I find that it is likely that within the next 12 months the tree roots from the lilly pillys (situated on the Waddell’s property) will enter and cause blockage(s) to the Ag pipe (situated on the Nethercott’s property) which in turn will cause water to pool. The blockage(s) will require annual maintenance costs of $650 per annum. This is serious damage to the Ag pipe and is a substantial, ongoing and unreasonable interference with the Nethercotts’ use and enjoyment of their property.
29. [29]
    I am not convinced that there is sufficient evidence before me to make any orders regarding the foxtail palm. The roots that are shown in the photographs submitted by the Nethercotts which they allege are emanating from the foxtail palm do not show or demonstrate that they would cause any blockages. Further there is not sufficient evidence before to show that all these roots emanate from the foxtail palm. I am of the view that evidence from an arborist and/or engineer would be required to provide this evidence. Further some excavation on the Nethercotts’ property may also be required.
30. [30]
    The Waddells complain that they were not given the opportunity to inspect the tree roots and excavations undertaken by the Nethercotts when the Plumber was carrying out his inspection. I can understand this sentiment. Neighbours usually adopt a cooperative approach in dealing with these issues. It is unfortunate that the Waddells were not invited to inspect the tree roots and excavation. Such an inspection may have reduced the level of conflict between the neighbours.
31. [31]
    Pursuant to 66 of the NDR Act, I have a discretion to make orders.
32. [32]
    I intend to make orders for the removal of the lilly pilly trees.
33. [33]
    The Nethercotts have made a claim for other costs. I will now comment on this claim:

    1. $1,450 for the Plumber – A plumber was required to inspect, use a camera and unblock the Ag pipe. I allow this claim.
    2. $2,440 for P Nethercott’s work – This work was undertaken by P Nethercott on his property, and he did not employ anyone else to undertake this work. I do not allow this claim.
    3. Tribunal application fee – I allow this claim.
    4. Copy of plans and title searches – The Nethercotts were aware of the name and details of their neighbours. I do not allow this claim.
    5. Postage fees – The documents could have been delivered to the Waddells. I do not allow this claim.
34. [34]
    I will make orders for the removal of the lilly pilly trees and for compensation of $1,817.
35. [35]
    The history of conflict between the neighbours is a long and difficult one. This long history over many years includes complaints to various government authorities and applications to the Tribunal. I encouraged the parties on two occasions to consider resolving this application by having some without prejudice discussions in an attempt to reach a compromise. The parties would not even consider my recommendations.
36. [36]
    The continuing conflict must have an emotional impact on the parties and must involve a cost in terms of money and time. I trust that the parties can find some way to resolve their differences in the future without the necessity of taking formal action.