Jarrett v Bliss[2024] QCAT 234

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Noel Martin Jarrett and Ms Susan Maree Jarrett (‘the Applicants’) filed in the Tribunal an Application for a tree dispute on 24 April 2020 seeking an order to remove and/or prune Mock Oranges, Bamboo, Heliconia and Palms (‘the Trees’) situated on David John Bliss’ and Debra Jane Bliss’ (‘the Respondents’) land. The Applicants claimed the Trees reduced their Water View (‘the Water View’), created a hazard when entering or exiting their driveway, diminished their natural light and ventilation along the parties’ shared side boundary, restricted their safe access and passage along one side of their home and compromised their solar efficiency.
2. [2]
   The Applicants and Respondents attended an oral Tribunal hearing on 18 October 2023 and 25 January 2024. Ms Jarrett gave sworn oral evidence on behalf of the Applicants and Ms Bliss gave sworn oral evidence on behalf of the Respondents. The Applicants and Respondents both provided post-hearing submissions.

Is the Land affected by a tree?

3. [3]
   Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) states:

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]
   The Applicants provided photographs, survey plans and current title searches of theirs and the Respondents’ land indicating the bases of the trees in dispute (the Trees) are situated on the Respondents’ land. The Tribunal finds the Respondents are the tree-keepers of the Trees situated on their freehold registered land that adjoins the Applicants’ land.^[1]
5. [5]
   Under the Act the Tribunal can make an order only if it is satisfied the parties have made a reasonable effort to reach an agreement and the Trees affect the Applicants’ land.^[2] The Applicants approached the Respondents about their Trees on a number of occasions and the Tribunal is satisfied the parties have made a reasonable effort to reach an agreement. The Tribunal is also satisfied there are no relevant local laws, local government schemes or local government administrative processes the Applicants could have availed to resolve the tree dispute.
6. [6]
   Section 66 of the Act outlines what orders the Tribunal can make in relation to trees. Section 66 states:

…

2. QCAT may make 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.

…

Sections 73, 74 and/or 75 of the Act outline the matters the Tribunal must consider when deciding whether or not to make an order under section 66.

What is a tree?

7. [7]
   Under section 45 of the Act, a tree includes any woody perennial plant, any plant resembling a tree in form and size and a vine. The Act gives examples of bamboo, banana plants, palms and cactus as being trees. Woody perennials include all trees and shrubs.

Do the trees cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land because of a severe obstruction of a view?

8. [8]
   There is no general right to a view from a person’s land^[3] and the Act does not create one. However, subsection 66(2)(b)(ii) of the Act enables the Tribunal to make orders on the basis of an obstruction of a view only if the tree rises at least 2.5 metres above the ground and the Applicants can establish the trees on the Respondents’ land have caused a severe obstruction of a view, from a dwelling on the Applicants’ land, that existed when the Applicants took possession of the land. This applies even if the Applicants took possession of the land before the commencement of the Act.^[4]
9. [9]
   The Appeal Tribunal has identified a three-step process when determining whether or not there is a severe obstruction of a view.^[5] First, the Tribunal must determine what the Applicants’ view was from their dwelling at the time they took possession of their land. Second, the Tribunal must determine whether the trees are causing, or within the next 12 months will cause, a severe obstruction of that view and, if so, the Tribunal must balance the interests of the parties considering the matters listed in sections 73 and 75 of the Act.^[6]

What was the Applicants’ view when they took possession of the land?

10. [10]
    It is not in dispute the Applicants took possession of their land and a house was situated on their land in January 2001 (‘the 2001 dwelling’). After purchase, the Applicants removed the 2001 dwelling and built a high end architecturally designed home (‘the current dwelling’). The Applicants did not take photographs of the view from the 2001 dwelling in and around the time of taking possession and relied on contemporaneous photographs taken from the front yard and across the street. In post-hearing submissions, the Applicants submitted their Water View was from the:

    1. natural ground level of their front yard;
    2. natural ground level of their driveway path along the length of the eastern boundary shared with the Respondents,
    3. entry gate path to the house’s front stairs;
    4. elevated views in the middle of the front yard from all of the 2001 dwelling’s 13 steps, and
    5. floor to ceiling level of the 2001 dwelling’s living area.
11. [11]
    The ordinary meaning of the word ‘dwelling’ is a shelter such as a house in which people live.^[7] The Applicants’ 2001 dwelling had 13 uncovered stairs facilitating entry and exit to its elevated living areas contained on one floor. The stairs were an integral part of the ‘dwelling,’ and based on the photographs before it, the Tribunal accepts the Water View was available from each of those steps. However, the Tribunal is not satisfied the view from the natural ground level of the Applicants’ front yard, the view from the natural ground level of their driveway path along the length of the eastern boundary shared with the Respondents or the view from the entry gate path to the house’s front stairs were views from a dwelling.
12. [12]
    During the hearing, the Applicants said there were Water Views from at least three of the 2001 dwelling’s front windows and the front door. The photographic evidence of the 2001 dwelling establishes it had four front windows and a front door. The Applicants submit there were “wrap around views” from two of those front four windows and those wrap around views should be reinstated. Although the views from the 2001 dwelling front windows would be lower than the current dwelling’s first floor views, the Tribunal is satisfied the Applicants had Water View across the Respondents’ land from at least two of those four windows and the front door. However, the Tribunal is not satisfied those views were “wrap around.” The Tribunal has examined the photographs of the Applicants’ 2001 dwelling and the Applicants’ current dwelling as it compares to the Respondents’ dwelling and the Respondents’ new fence. Comparing the various photographs, the Tribunal estimates the Water View across the Respondents’ land from the 2001 dwelling’s front two windows was from 2.40 metres above ground level (the bottom of the windows) to the top of the windows. The views from the 2001 dwelling’s front door was from the bottom of the door (lower than 2.40 metres above the ground level) to the top of the door.
13. [13]
    The Applicants provided evidence indicating their current dwelling is at the same set back from the front of their land as the 2001 dwelling. Using photographs and the architectural plans provided by the Applicants, the Tribunal estimates the Water View from the current dwelling are from the ground level front window, the ground level front portico and from a sitting or lying position on the first floor deck.

Is there a severe obstruction of the Applicants’ views?

14. [14]
    The term “severe obstruction” is not defined in the Act. However, in Haindl v Daisch,^[8] in the context of similar legislation, the Court considered the assessment involved qualitative and quantitative elements. It is the totality of the views that must be considered.^[9]

… the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.^[10]

In Tenacity Consulting v Warringah,^[11] the Court indicated that some views are more valuable than others (for example water or iconic views), views from across side boundaries are more difficult to protect than front and rear boundaries, sitting views are more difficult to protect than standing views and views from living areas are more significant than service areas except from kitchens. The Court stated:

The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.^[12]

15. [15]
    The Applicants submit the Mock Orange Hedge and three (3) palm trees planted in the Respondents’ front yard have severely obstructed their Water View.
16. [16]
    The North Brisbane Trees Arborist Report dated 18 May 2022 (‘Report Number 1’) states the row of Mock Oranges (the Applicants refer to the Mock Oranges as Tree 1 and Tree 8) (‘the Hedge’) are semi-mature and in good health. The Hedge is 1.80 to 1.90 metres tall and 4.50 to 4.70 metres long. The Diameter at Breast Height (‘DBH’) is less than 10 centimetres per tree. The Applicants’ row of native Lilly Pilly trees are, at their highest, 1.40 metres tall. Report Number 1 states the difference of 40 to 50 centimetres in height is enough to block the Applicants’ line of sight to the ocean from the lower levels of the Applicants’ house. However, Mr Jonathan Hobbs’ Tree Assessment Report dated 13 October 2021 (‘Report Number 2’) states the Hedge has little foliage and there was not enough to cut it lower.
17. [17]
    In relation to the palms, Report Number 2 states once the palm trees mature, the crown will be higher than the roof eaves of the Respondents’ house and there will be a single trunk that “should not impede”^[13] the Applicants’ view of the seafront to any significant degree. However, Report Number 1 states the palms have a staggered height prolonging the time the fronds would obstruct views.
18. [18]
    The Applicants told the Tribunal they have lost seeing the rainbows, seeing the water and seeing the clouds rolling in. They have consulted a number of ‘valuers’ who estimate the loss of their Water View reduces the value of their current dwelling by $500,000. The Respondents have planted three palm trees in a row but diagonal to their fence, not parallel. As the palms grow the obstruction of their Water View will be amplified because, in effect, the palms (which are different varieties and will have different heights) will be side by side. The Respondents submit the Applicants’ Water View across their land was minimal and agree with the conclusions of Report Number 2 about their impact. The Respondents argue 50% to 60% of the Applicants’ Water View was across the road and only 10% to 20% was across the Respondents’ land. The Respondents argued Esplanade and street trees will continue to grow and obstruct the Applicants’ Water View.
19. [19]
    Whether there is, or is not, a severe obstruction of a view is a finding of fact the Tribunal must determine. The Applicants’ Water View is a highly valuable view across the parties’ shared side boundary. The 2001 dwelling’s Water View was from the front stairs, the front door and enclosed front veranda windows about 2.4 metres above ground level. That view is now from the current dwelling’s ground floor front window, the ground floor front portico and a sitting or lying position from the first-floor deck.
20. [20]
    Under the Act, the Tribunal cannot make an order to remedy, restrain or prevent an obstruction of a view when the trees are not at least 2.50 metres tall. That means the Tribunal cannot make orders to reinstate the views from the current dwelling’s ground floor front window and ground floor front portico.
21. [21]
    It is not in dispute the Respondents have three palms planted diagonal to the front fence. The Respondents’ evidence was the planting was due to the position of a water pipe and the shape of the garden bed (Tree 2, Tree 3 and Tree 4) (‘the Palms’). However, regardless of the reasons, the Tribunal does not accept Report Number 2’s finding that there “will be a single trunk”^[14] obstructing the Applicants’ view. The Tribunal has examined multiple photographs of the Palms and is satisfied, based on all the evidence before it and considering the Water View’s qualitative and quantitative elements, that the Palms cause, or are likely to cause within the next 12 months, a severe obstruction of a view.
22. [22]
    The Tribunal had before it evidence that the Hedge, at some point in time, was at or above 2.50 metres. During the hearing, the Respondents submitted the Hedge is maintained below 2.50 metres, but it could have grown above that height when they were away. The Tribunal is satisfied that, if the Hedge grew above 2.50 metres over the next 12 months, it would cause a severe obstruction of the Applicants’ view.
23. [23]
    The Tribunal has considered the matters outlined in sections 73 and 75 of the Act. The Tribunal acknowledges the likely impact of pruning the Palms to a height of 2.50 metres is the Palms will die. However, the Respondents planted the Palms after taking possession of their land and there is no evidence to indicate their removal would impact soil stability or a water table. The Palms form part of the Respondents’ landscaped front yard. However, they offer little to no protection from the sun, wind, noise, odour or smoke. Under section 72 of the Act, removal of a tree is to be avoided unless the issues cannot be resolved otherwise. The Tribunal has found the Palms cause, or will cause within the next 12 months, a severe obstruction of the Applicants’ view and, because the Palms cannot be maintained at the height of 2.5 metres, the issue cannot be resolved without their removal. The Hedge provides the Respondents some privacy and is amenable to regular pruning. The Applicants submit the Hedge is an environmental weed in Queensland. The Tribunal accepts the Hedge is classified as an environmental weed but under the Act, removal of a tree (which includes a shrub) should be avoided. The Hedge can be trimmed on a regular basis to ensure the Applicants’ view is not obstructed and does not need to be removed.
24. [24]
    The Tribunal acknowledges the Applicants lodged their Application for a tree dispute in 2020 and the relationship between the parties is acrimonious. If the Tribunal ordered the Palms to be cut to 2.50 metres or removed, it is possible the Respondents could plant other trees capable of growing taller than 2.50 metres and the Applicants would be required to make another Application for a tree dispute. To avoid further Applications for a tree dispute, the Tribunal will make an order that all trees, including trees in pots, in a particular area of the Respondents’ front yard must be no taller than 2.50 metres. The borders of that area (depicted in Picture 1 below) are:

1. the parties’ shared side boundary from the Respondents’ front boundary to the edge of the Respondents’ house (currently most of the Hedge);
2. vegetation along the Respondents’ front boundary (currently where the Palms are located); and
3. along the Respondents’ shared side boundary with the house located on the Esplanade from the Respondents’ front boundary to the first post in the Respondents’ side fence (this part of the Respondents’ fence increases in height to meet the post and the post is in line with the side of the Esplanade’s house).

Picture 1 shows the vegetation height restriction area in the Respondents’ front yard

The Hedge (Tree 1 and Tree 8), Tree 2, Tree 3 and Tree 4 causes, or is likely to cause in the next 12 months, serious injury to any person 

25. [25]
    The Applicants’ evidence is the height of the Hedge, Tree 2, Tree 3 and Tree 4 restrict their clear line of sight to the road and footpath when exiting and entering their driveway. The Hedge, Tree 2, Tree 3 and Tree 4 prevent pedestrians seeing the top of the Applicants’ car in the context of a high traffic footpath. The Applicants provided an article titled “Hidden Danger of Blind Spots” and said the Hedge, Tree 2, Tree 3 and Tree 4 have increased the safety risks because of the reduced visibility.
26. [26]
    During the hearing, the Tribunal discussed with the Applicants whether the installation of a mirror had been considered and put to the Applicants the Respondents had a right to erect a two-metre fence on the parties’ shared side boundary. The Applicants’ response was that, after discussing the issue with a traffic engineer, a large mirror would need to be installed on an Energex pole across the street, and the Respondents installing a two-metre fence on the parties’ shared side boundary would be, in essence, unconscionable behaviour. In post-hearing submissions, the Applicants submit there has been a significant increase in vehicle, truck and pedestrian traffic as the population has increased in the area.
27. [27]
    Although the Applicants did not provide the Tribunal with evidence from a traffic engineer, it accepts their evidence about receiving advice about installing a large mirror on an Energex pole across the road. However, the Tribunal is not satisfied that advice was provided to mitigate the claimed blocked line of sight caused by the Hedge, Tree 2, Tree 3 and Tree 4. The Tribunal does not know if the Applicants discussed with the traffic engineer all their safety concerns about traffic - including cars coming around the corner at high speed - and the traffic engineer’s advice was provided to mitigate all issues.
28. [28]
    The Applicants submit that if the Hedge, Tree 2, Tree 3 and Tree 4 were removed or cut to a height of 1.30 metres their line of sight would increase when exiting and entering their land. Report Number 1 relevantly states in relation to the Hedge:

A 40-50cm height difference does not sound like a large amount, however this 40 to 50cm is enough to block the line of site to the ocean while standing at ground level, on the sloped driveway, stepped pathway, and lower house level rooms of [the Respondents’ address] for those who are about 1.55m tall or shorter…Susan and Noel have also advised that it is also enough to contribute to restricting clear line of site to the road and footpath when exiting their driveway. This is a safety concern for Susan, Noel and their visitors. It also poses a safety risk for pedestrians and cyclists who also use this heavily trafficked footpath to access the very busy Waterloo Esplanade waterfront precinct.

29. [29]
    The Respondents submit reducing the height of the Hedge, Tree 2, Tree 3 and Tree 4 would not improve the line of sight from the street because their front fence blocks it.
30. [30]
    Report Number 2 included photographs of the Hedge showing a small band of foliage across the top of the Hedge about 25% of its overall height. Below the foliage are numerous stems in front of the parties’ shared side boundary paling fence. There are small gaps between the palings that would enable some visibility of objects on the Applicants’ land. However, any visibility through the shared paling fence is obstructed by a hedge and a low line of bricks situated on the Applicants’ land.
31. [31]
    During the hearing, the Applicants’ evidence is that it was not incumbent upon them to rectify the problems the Hedge, Tree 2, Tree 3 and Tree 4 cause. In post-hearing submissions, the Applicants submitted it was “a basic human need and right to feel physically and psychologically safe when entering and existing [sic] their home and place of rest.”^[15] The “significant obstruction caused by these trees, has serious and significant safety ramifications for [them] every time [they] enter and depart [their] property, as well as for other road users and footpath users”.^[16] The Hedge, Tree 2, Tree 3 and Tree 4 pose a significant safety risk and hazard to other road users in their street and pedestrians on the footpath.
32. [32]
    The Applicants’ poor line of visibility is, on the evidence before the Tribunal, attributable to many factors including the design of the Applicants’ driveway, cars parking on the side of the road, the Respondents’ front fence (albeit with cut outs in the top panels), the Applicants’ hedge (an Australian Lilly Pilly), the road design, the footpath design and the parties’ shared side boundary fence extending to the corner of the parties’ land. The Tribunal does not accept it is incumbent upon the Respondents to improve the Applicants’ line of sight. The Respondents have the right to build two-metre fences on their boundaries and the Applicants have made little to no attempts to investigate alternatives to mitigate the claimed impact of the Hedge, Tree 2, Tree 3 and Tree 4 on their line of sight. The Tribunal is not satisfied reducing or removing the Hedge, Tree 2, Tree 3 and Tree 4 would improve the Applicants’ line of sight as claimed. However, even if the Tribunal was satisfied, the Tribunal does not accept it has the jurisdiction to make to make such an order.
33. [33]
    Under section 46 of the Act, land - that is, the Applicants’ land - is affected by a tree if the tree has caused, is causing, or is likely within the next 12 months to cause “serious injury to a person on the land.”^[17] Under section 66 of the Act the Tribunal may make an order if a tree is affecting the Applicants’ land to prevent serious injury to any person. That is, the serious injury to a person has or will occur on the Applicants’ land (for example the Applicants’ claim related to Tree 9 discussed below). On the Applicants’ own evidence, the claimed serious injury to a person would occur on public land (the footpath or the road) when the Applicants are exiting or entering their land.
34. [34]
    The Tribunal is not satisfied the Applicants’ land is affected by the Respondents’ Hedge, Tree 2, Tree 3 and Tree 4 as claimed. The Tribunal is not satisfied the Hedge, Tree 2, Tree 3 and/or Tree 4 have caused, are causing, or are likely to cause within the next 12 months to cause, serious injury to a person on the Applicants’ land.

Tree Number 9 causes, or is likely to cause in the next 12 months, serious injury to any person and/or a substantial, ongoing and unreasonable interference

35. [35]
    The Applicants claim Tree 9 is a serious and significant safety hazard. The Applicants have a genuine fear of Tree 9 falling on them while they are sleeping or when they are in their backyard. The Applicants claim Tree 9 is more than 50 years old, is more than 20 metres high, has large branch shedding and its health has declined from good to fair in arborist reports. Tree 9 was weakened and severely compromised during the severe December 2023 storms. The storms stripped Tree 9 of its leaves and destabilised its shallow root system. The Applicants claim Tree 9’s non-seasonal continuous yellowing and dropping of leaves is further evidence of ill health due to root rot, insect damage and the end-of-life cycle.
36. [36]
    During the hearing, the Applicants’ evidence was when their foxtail palms were situated on their land they acted as a protection layer. Tree 9 has dead branches, trees on the footpath of a similar age have failed, their area experiences strong winds and severe storms and, if Tree 9 failed, it would fall through the Applicants’ roof into their bedroom. The Applicants argued Tree 9 should be maintained at roof height.
37. [37]
    The Respondents’ evidence was Tree 9 went through a severe storm and dropped a ‘twig’ in the Applicants’ pool. The Applicants provided a photograph of a branch in their swimming pool presumably from Tree 9. The Applicants estimated the branch was one metre by one metre.
38. [38]
    The Austreelia Tree Consulting report dated 10 November 2023 (‘Report Number 3’) states Tree 9 (identified in Report Number 3 as T3) was a mature Native Frangipanni which had good health and condition and a good structure. Tree 9 was assessed to have less than 5% deadwood and epicormic growth. Deadwood size was less than 50 millimetres, and it has a safe useful life expectancy (‘SULE’) of M15-40. Report Number 3 states Tree 9 is about 14 metres in height and further growth will be slow. No pruning was required but ongoing arborist assessment and monitoring of encroachment onto the Applicants’ land was recommended. The Tribunal notes Report Number 3 also described Tree 9 as being in fair to good condition.
39. [39]
    Report Number 1 states Tree 9 is a mature Native Frangipanni that has a good structure and health. Report Number 1 states Tree 9 causes issues for the Applicants due to excessive leaf/flower drop and branch drop. Report Number 1 recommended Tree 9 be pruned back to the fence line and then maintained by a qualified arborist to ensure dead branches or poorly structured branches “are regularly pruned (quarterly).”
40. [40]
    On 4 March 2024, the Applicants provided further submissions and photographs related to Tree 9. The Applicants claim Tree 9 now has a fully naked trunk and branches that is “proof that due to its age, poor condition and storm damage, that it poses an unacceptable and unreasonable high safety risk and hazard of falling onto people and/or structures and causing damage, injury and harm”. However, on the Applicants’ own evidence, Tree 9 drops its leaves twice a year.
41. [41]
    There is no evidence from an arborist indicating Tree 9 has been severely compromised as claimed by the Applicants. The arborist’s evidence is Tree 9 is, at worst, in fair to good condition. Report Number 3 recommended no pruning in December 2023 but did recommend ongoing assessment and monitoring. Based on the evidence before it, the Tribunal is not satisfied Tree 9 is, or is likely to cause in the next 12 months, serious injury to any person on the Applicants’ land. However, the Tribunal is satisfied Tree 9 will require ongoing assessment and monitoring given the arborist’s recommendation.
42. [42]
    The Tribunal accepts the recommendations contained in Report Number 3 that Tree 9, Tree 5 (referred to as T1) and the Pink Trumpet (possibly Tree 6) must undergo an arborist’s assessment with a minimum qualification of Australian Qualification Framework level 5 on an annual basis and after a severe weather event (‘Level 5 Assessment’). The arborist who undertakes the Level 5 Assessment must provide written evidence of the Level 5 Assessment’s recommendations (‘the Ongoing Recommendations’). The Ongoing Recommendations must be emailed to the Applicants within seven (7) days of the Respondents receiving them. The Respondents must then engage an arborist with a minimum qualification of Australian Qualification Framework level 3 to undertake the Ongoing Recommendations within two (2) months.

Tree Number 9 causes a substantial, ongoing and unreasonable interference – leaf litter

43. [43]
    The Applicants’ oral evidence is Tree 9 drops its leaves twice a year and, for about eight months per year, produces excessive leaf litter/organic matter. The Applicants spend, on average, about 30 minutes a day emptying the pool filter and cleaning up Tree 9’s leaves. Their garden beds are covered in bark, and Tree 9’s individual leaves need to be picked up.
44. [44]
    The Applicants’ written evidence is that Tree 9 has a 365-day cycle of leaf yellowing and loss and a six-month cycle of flower litter falling into their upper and lower roof gutters. The Applicants submit the leaf and flower litter places an excessive and unreasonable burden on their gutter infrastructure and their need for ongoing cleaning. The excessive organic matter needs ongoing cleaning from their pool, paving and surrounds. The organic matter on their pavers presents a safety and slip hazard especially when wet. Their pool maintenance costs are increased due to the excessive organic matter falling into it.
45. [45]
    In Thomsen v White^[18] Senior Member Stilgoe referred to the Land and Environment Court of New South Wales case of Barker v Kyriakides^[19] that stated:

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.

46. [46]
    Under the Act, there must be a substantial ongoing unreasonable interference before the Tribunal can make an order to remedy, restrain or prevent an interference. Based on the evidence before it, the Tribunal is not satisfied daily maintenance of about 30 minutes and an increase in the use of pool equipment/chemicals meets the threshold of ‘substantial’.

The Heliconia, Tree 5, Tree 6, Tree 9, Tree 10, Tree 11 and Tree 12 causes a substantial, ongoing and unreasonable interference – ventilation, sunlight and overhanging branches 

47. [47]
    The Applicants submit the Respondents’ trees adjacent to their shared side boundary (Heliconia, Tree 5, Tree 6, Tree 9, Tree 10, Tree 11, Tree 12 and Tree 13) (‘the Side Boundary Trees’) significantly impact their natural light, ventilation, solar panel efficiency and/or overall amenity. Tree 9, Tree 10, Tree 11 and Tree 12 shade the back right hand corner of the Applicants’ house and about 70% of their pool and surrounding paved area. The excessive shading and lack of ventilation has resulted in having to use lights in the two ground floor bedrooms on that side of their current dwelling during the day and a high level of mould in those bedrooms and on their external pavers. The Side Boundary Trees are now impacting the light and ventilation on the Applicants’ upper windows and Tree 5, Tree 6 and Tree 9 are shading their solar panels.
48. [48]
    The Applicants submit the Side Boundary Trees are too close to the parties’ shared side boundary and too dense. The Applicants’ evidence was Tree 10 is 800 millimetres off, Tree 11 is 1.40 metres off, Tree 12 is 1.50 metres off and Tree 13 is 800 millimetres off the parties’ shared side boundary. The Respondents gave different distances of their trees’ location, but those distances appeared to be estimates. The Tribunal prefers the Applicants’ evidence about the distance of the Respondents’ trees off the parties’ shared side boundary.
49. [49]
    The Respondents’ evidence was Tree 10 is the same as Tree 5 and is a Pink Euodia. Tree 10 will get to a height of between 4.00 and 6.00 metres. Tree 11 is a Grevilia and Tree 12 is a Yesterday, Today and Tomorrow and would not be more than 2.00 metres tall. Tree 13 is a fully grown shrub that is 3.50 metres to 4 metres tall. The Respondents submitted most of the Side Boundary Trees are rainforest trees and have shallow roots. The Applicants challenged the Respondents’ evidence. The Applicants suggested Tree 13 was closer to 4.00 metres high and Tree 12 is above the fence and about 4.50 metres tall. The Applicants did not accept Tree 12 was a Yesterday, Today and Tomorrow and estimated Tree 5 is about 8.00 metres tall. The Respondents did not know what the species of Tree 6 was but estimated its height at 6.50 metres to 7 metres. The Applicants estimated Tree 6 to be 8.00 metres tall and the Heliconia about 6.00 metres tall.
50. [50]
    The Applicants did not provide objective evidence of the Respondents’ trees causing mould or a reduction in their solar panel efficiency. The Applicants did provide numerous internal photographs of their lower-level bedroom windows being shaded and external photographs of the current dwelling’s side with shading on it. Some of those photographs indicate the shading is from some of the Respondents’ Side Boundary Trees. The Tribunal accepts the Respondents’ trees do shade part of the current dwelling for at least some of the day. However, there is no quantitative or qualitative evidence before the Tribunal about the extent of that shading (for example how many hours of the day the Applicants’ windows and/or roof are shaded or light level measurements). Report Number 3 states that apart from a minor encroachment of T3 (Tree 9) no other of the Respondents’ trees encroached onto the Applicants’ land or impacted the Applicants’ light or the Applicants’ structures.
51. [51]
    On the Applicants’ own evidence, it was not clear if the bamboo screen attached to the Respondents’ fence contributed to the obstruction of light on their ground floor bedroom windows. Under the Act, the obstruction of sunlight to a window or roof of a dwelling must be severe and the trees must be at least 2.50 metres tall. It is not clear to the Tribunal that if the Side Boundary Trees were cut to 2.50 metres the light to the Applicants’ ground floor bedroom windows would improve. Based on the evidence before it, the Tribunal is not satisfied the Respondents’ Side Boundary Trees are causing a severe obstruction of sunlight to the Applicants’ windows and/or roof as claimed.
52. [52]
    The Applicants submit Tree 5, Tree 6 and Tree 9’s roots could encroach onto their land. The Applicants’ based their claim on previous tree root encroachment from another neighbour’s large tree. There is no evidence before the Tribunal to substantiate the Applicants’ claim of root encroachment and the Tribunal is not satisfied Tree 5, Tree 6 and Tree 9’s roots have, or will within the next 12 months, affect the Applicants’ land.
53. [53]
    The Respondents have established a clearance channel between their Side Boundary Trees and the parties’ shared side boundary. The Respondents’ evidence is that the Side Boundary Trees have all been planted and the intention is to maintain their clearance from the parties’ shared side boundary. The Applicants have provided past photographic evidence of the Respondents’ Side Boundary Trees overhanging onto the Applicants’ land. There is a substantial amount of vegetation along the parties’ side shared boundary and if that clearance was not maintained, the Tribunal is satisfied the amount of overhang onto the Applicants’ land would amount to a substantial ongoing and unreasonable interference. The Tribunal will make orders that the current clearance channel between the Respondents’ Side Boundary Trees (except Tree 5, Tree 6 and Tree 9) and the parties’ shared side boundary be maintained three times a year.

Length of the Orders

54. [54]
    The Applicants submitted the time it has taken the Tribunal to resolve the Application for a tree dispute has emboldened the Respondents. The current dwelling is an intergenerational home and the Tribunal’s Orders need to be made for 25 years.
55. [55]
    The Tribunal has made orders about ongoing assessment, ongoing maintenance and height restrictions on some of the Respondents’ trees. Under section 78 of the Act, an order lapses 10 years after the day on which the order is made unless the order expressly provides otherwise. In the view of the Tribunal, 10 years is a significant amount of time to place orders over the Respondents’ land and it is likely the landscape will dramatically change during that period. If for example in 10 years, the Applicants’ Water View is completely obstructed by new buildings, trees or other structures, then an order restricting the height of some of the Respondents’ trees would not restrain, remedy or prevent the substantial interference on the Applicants’ land.
56. [56]
    The Tribunal is not persuaded to make the orders for more than 10 years.

Penalties for the Respondents’ Non-Compliance

57. [57]
    The Applicants submitted the Respondents “believe they have a right to do whatever they want” and believe the Respondents should have penalties imposed for non-compliance. Under section 66 of the Act, the Tribunal can make orders authorising a person to enter the Respondents’ land to carry out an order and the Respondents would be responsible for the costs. The Tribunal cannot make an order penalising the Respondents for non-compliance. However, in all the circumstances of this case, the Tribunal will make orders allowing the Applicants to engage a contractor and/or arborist to carry out any order that is not complied with and claim those costs as debt a from the Respondents.

Orders

1. The Respondents must prune or remove all trees, including trees in pots, contained in the designated area of the Respondents’ front yard (‘the Designated Area’) so that no tree contained in the Designated Area is taller than 2.50 metres, on or before 4:00pm on 2 August 2024.
2. The Respondents must undertake ongoing maintenance during the months of January, April, July and October of every year, if required, in the Designated Area so that no tree contained in the Designated Area is taller than 2.50 metres. The initial maintenance will occur, if required, in October 2024.
3. The Designated Area is bordered by the parties’ shared side boundary from the Respondents’ front boundary to the edge of the Respondents’ house (currently most of the Hedge) and the Respondents’ front boundary (currently where the Palms are located) and the Respondents’ shared side boundary with the house located on the Esplanade from the Respondents’ front boundary to the first post in the Respondents’ side fence (this part of the Respondents’ fence increases in height to meet the post and the post is in line with the side of the Esplanade’s house.)
4. The Respondents must maintain the clearance channel between the Respondents’ trees and the parties’ shared side boundary fence (except the Pink Euodia, Pink Trumpet, Native Frangipani and Mock Orange Hedge), if required, three times a year in the months of January, May and September. The initial maintenance will occur in September 2024.
5. The Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet, Native Frangipani (identified as T1, T2 and T3 in Damian Green’s report dated 10 November 2023) and provide maintenance recommendations (the ‘Initial Maintenance Work’) in writing, on or before 4:00pm on 2 August 2024.
6. Upon completion of the Initial Level 5 Assessment outlined in Order 5, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the Initial Maintenance Work, on or before 4:00pm on 1 November 2024.
7. Unless there is a significant weather event and Order 8 is enlivened, twelve (12) months after the Initial Level 5 Assessment outlined in Order 5, and on an annual basis thereafter (to be completed in the same month of each year) (the ‘Yearly Level 5 Assessment’), the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet and Native Frangipanni and provide written yearly maintenance recommendations (‘Yearly Maintenance Work’).
8. If within twelve (12) months after the Initial Level 5 Assessment outlined in Order 5 the Pink Euodia, Pink Trumpet and Native Frangipanni are subjected to a significant weather event, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet and Native Frangipanni within two (2) months of that significant weather event (‘Level 5 Severe Weather Assessment’) and on an annual basis thereafter (to be completed in the same month of each year) (the ‘Yearly Level 5 Assessment’), and provide written weather event maintenance recommendations (‘Severe Weather Maintenance Work’).
9. Upon completion of the Yearly Level 5 Assessment outlined in Order 7 or Level 5 Severe Weather Assessment outlined in Order 8, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the Yearly Maintenance Work or the Severe Weather Maintenance Work within two (2) months of receiving those assessments.
10. Upon completion of the Initial Level 5 Assessment, the Yearly Level 5 Assessment or the Severe Weather Assessment the Respondents must give the Applicants a copy of the Initial Maintenance work, the Yearly Maintenance Work or the Severe Weather Maintenance Work within seven (7) days of the Respondents’ receiving them.
11. Prior to the Respondent’s elected level 3 arborist undertaking the Initial Maintenance Work, the Yearly Maintenance Work and/or the Severe Weather Maintenance Work outlined in Order 6 and Order 9, the Respondents must provide their elected level 3 arborist a copy of the Initial Maintenance Work, the Yearly Maintenance Work and/or the Severe Weather Maintenance Work to be undertaken.
12. The Respondents’ elected arborist (with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances) must perform all pruning in accordance with AS4373-2007 Pruning of Amenity Trees.
13. The Respondents will be responsible for all costs associated with Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8 and Order 9.
14. If required the Applicants must allow the Respondents’ elected arborist and/or elected contractor with appropriate insurances access to their land to undertake the work outlined in Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8 and/or Order 9 subject to three (3) days’ notice or as agreed between the parties.
15. If the Respondents fail to undertake any of the work outlined in Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8, Order 9 and/or Order 10 (‘Incomplete Work’) the Applicants shall be entitled to undertake any of the Incomplete Work in accordance with these Orders. The Applicants’ elected contractor and/or arborist shall be entitled to enter the Respondents’ land and carry out any of the Incomplete Work subject to the Applicants giving 14 days written notice of that intention to the Respondents.
16. If the Respondents undertake all of the outstanding Incomplete Work prior to the 14 days written notice period expiring as outlined in Order 15, the Applicants’ entitlement to enter the Respondents’ land is extinguished.
17. The costs incurred by the Applicants engaging a contractor and/or arborist to undertake any of the Incomplete Work in default of the Respondents shall be recoverable from the Respondents as a debt without further notice being required to be given.