Kwong v Oag[2024] QCAT 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Charmaine Poh Peng Kwong (‘the neighbour’) filed an application for a tree dispute in the Tribunal on 12 March 2021, seeking orders in relation to trees located on the neighbouring property at Jindalee in Brisbane owned by Donald John Oag and Christine Doris Oag (‘the tree keepers’).
2. [2]
   The application concerned five (5) trees which the neighbour alleged were creating a nuisance by excessive leaves and small branches dropping onto her driveway area and rear yard.
3. [3]
   The three largest trees were substantially lopped to their trunks in the course of the proceedings. Directions were given on 20 January 2023 for the neighbour to file submissions as to what she was thereafter seeking in relation to the trees and reimbursement of costs.
4. [4]
   The neighbour filed submissions on 21 February 2023, and requested that the Tribunal make the following Final Amended Orders:

2.1 That an order that the respondents carry out tree works to prune the remaining overhanging branches of Tree Number 3 (Bottlebrush Tree) along their property boundary fence as not to encroach into the boundaries of the applicant’s property.

2.2 That an order that the respondents carry out tree works to remove or prune the overhanging branches of Tree Number 5 (Hibiscus) to a reasonable satisfactory fence height of below 2.5 metres along the front property boundary every 3 – 6 months.

2.3 That an order that the respondents carry out tree works to remove or prune the overhanging branches of Tree Number 6 (Indian Hawthorne Tree) along the backyard property boundary fence and to reduce the tree to a reasonable satisfactory fence height of below 2.5 metres.

2.4 That an order that the respondents as tree-keepers pay for cost of maintaining their trees and shrubs at their own cost.

2.5 That in order to avoid future disputes, the respondents agree to undertake a pruning maintenance program every 3-6 months that will ensure that branches from the trees and shrubs do not reach a point where they overhang and encroach into my property.

2.6 That an order should the respondents not agree to undertake a pruning maintenance program every 3-6 months that I, as applicant can engage a contractor to remove any of the branches from the trees and shrubs which overhang and encroach into my property, at the respondents [sic] expense and the respondents are liable to reimburse me up to $300 a year for removing any of their overhanging branches.

2.7 That an order that the respondent reimburse me (applicant) in respect of the QCAT filing fee paid of $352.00 and my contribution to the QCAT appointed Tree Assessor’s cost of $600.00 when a final decision is made.

Tree assessment report

5. [5]
   A tree assessment report from a Tree Assessor, Mr Stephen Richards, was filed on 3 January 2023.
6. [6]
   The Tree Assessor attended the property on 4 November 2022.  He noted the trees were as follows:

7. [7]
   The Tree Assessor made comments about trees number 1, 2, and 4 as follows:

These three subject trees which were obviously the main cause of concern for the applicant had been lopped, just leaving the trunks at the time of inspection.

A minor amount of epicormic growth which had sprouted after the cutting was either dead or in very poor health on all three trees.

They are all wholly within the respondents property and are no longer a cause of concern.

8. [8]
   The Tree Assessor made comments about tree number 3 as follows:

Tree No. 3 is a mature weeping bottlebrush. The tree is located wholly within the respondents property and is positioned approximately 1 metre from the dividing fence.

At the time of inspection, the subject tree had been clear to the fence line to a height of approximately 5 metres. The cuts made were very large and more than 20% of the total canopy was removed which is not in accordance with Australian pruning standards.

The cuts were target pruned to collars which should allow for directional management in an upright form, and it will be many years, if at all this tree encroaches beyond the property boundary in any meaningful way.

9. [9]
   The Tree Assessor made comments about tree number 5 as follows:

Tree No. 5 is a mature unidentified evergreen shrub. The plant is positioned approximately 40 centimetres from the dividing fence.

At the time of inspection, the shrub had been proven to the fence line to a height of approximately 3.5 metres with an unobtrusive overhang approximately 1 metre across the dividing fence for the remaining metre of height.

10. [10]
    The Tree Assessor noted that at the time of inspection the neighbour’s land was entirely unaffected by any of the alleged vegetation, and that there are no potential risks from any of the trees or their component parts that are likely to cause damage or injury to personal property within the next 12 months (or the long-term foreseeable future).
11. [11]
    The Tree Assessor did not recommend that any works be conducted.

Discussion

12. [12]
    There is reference in the material filed by the parties to the construction of a dividing fence. Those matters are not relevant to this application.
13. [13]
    Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) provides that land is affected by a tree at a particular time if 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 neighbours use and enjoyment of the land.
14. [14]
    The Act sets out the orders that the Tribunal may make in relation to a tree affecting a neighbour’s land as follows:

66. Orders QCAT may make

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 and prevent –

1. serious damage to the neighbour’s land or any property on the neighbour’s land;
2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

15. [15]
    No submissions have been made that would cause me to question the fundamental validity of the Tree Assessor’s report.
16. [16]
    I accept the report of the Tree Assessor.
17. [17]
    The Tree Assessor identified that no further works were required, and that there were no potential risks from any of the trees, or the component parts, within the next 12 months. The land is therefore not affected by the trees as defined in Section 46 of the Act.
18. [18]
    There is therefore no serious damage to the neighbour’s land, or established substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land, caused by a tree affecting the neighbour’s land, which would make it appropriate for the Tribunal to make any orders in the matter.
19. [19]
    There is no basis upon which to make any of the Final Amended Orders as to tree work which are sought.
20. [20]
    The neighbour is also seeking her filing costs, and her share of the Tree Assessor’s costs.
21. [21]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that each party usually bears their own costs as follows:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the parties own costs for the proceeding.

22. [22]
    There are provisions in Section 102 of the QCAT Act which provide that the Tribunal may make a costs order if it considers the interests of justice require it to make the order.
23. [23]
    The tree keeper has not impeded these proceedings in any way, and has taken proactive action to lop the trees.
24. [24]
    I do not consider that there are any circumstances in this matter that would make it appropriate to depart from the starting position set out in Section 100 of the QCAT Act that each party should bear their own costs.
25. [25]
    I note that similar issues as to the making of an order, and as to costs, were discussed in the recent matter in the Tribunal of Prime Management Pty Ltd v McKay & Anor.^[1]
26. [26]
    There being no basis upon which to make any tree orders, and it not being appropriate to make any costs orders, I dismiss the application for a tree dispute and make no order as to costs.