Qui v Khoo[2024] QCAT 265

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   The applicants complained that trees in an immediately neighbouring property were causing issues of concern regarding safety and unreasonable use and enjoyment of their land. It concerned, what I understood from the material, to be large branches on large trees. They applied to this Tribunal for an order that the owner of the neighbouring land trim the offending branches and pay the costs of same.
2. [2]
   The neighbouring land owner did not respond in any way to the application made.
3. [3]
   Approximately nine months after the proceeding was commenced, the neighbouring land owner sold the land. Promptly thereafter, apparently without knowledge of this proceeding, the new owners cut down the offending trees. That action resolved the issue the applicants complained of. However, the applicants pressed on, successfully having the new owners made respondents in the proceeding in substitution of the original respondents, and sought to expand their claim in the proceeding to incorporate what was said to be damage to the common fence between their land and the adjoining land, and damage to a retaining wall on their land, all said to have been caused by the trees. In doing so, whilst somewhat confused in the manner in which they approached their case, the applicants sought relief from this Tribunal that the new owners, as respondents to their action, be ordered to pay 50% of the cost of a new fence and the cost to repair / rebuild the damaged retaining wall. They did not however seek any relief against the new owners in terms of the trees.
4. [4]
   For the reasons given herein, the applicants failed in their efforts to have this Tribunal make any orders against the new owners as respondents. The only plausible outcome on the evidence and submissions before the Tribunal was that the applicant’s application be dismissed.

Relevant Facts and Circumstances

5. [5]
   The applicants live on land that shares a common boundary with the respondents’ land. A Mr Ewin previously owned the respondents’ land.
6. [6]
   When it was owned by Mr Ewin, several large trees existed along the boundary. They were all on Mr Ewin’s side of the boundary. The applicants say that since 2018 they had been endeavouring, unsuccessfully, to have Mr Ewin maintain the trees by removing large branches overhanging the boundary. They say they were concerned about the risk of those branches falling and causing damage to their house, or injury to a person who may be in their yard, in particular their children.
7. [7]
   They also say that the overhanging branches were interfering with the use of their land, particularly that they were causing a loss of solar power generation by the panels on the roof of their house.
8. [8]
   On 22 March 2021, the first named applicant commenced this proceeding by filing in this Tribunal an Application for a Tree Dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’), naming Mr Ewin as respondent. They sought orders that he remove or prune the branches of the trees, and that he pay the costs of doing so.
9. [9]
   On 3 November 2021, the second named applicant was joined as an applicant in this proceeding, and Ms Ewin was joined as a respondent.
10. [10]
    Neither Mr Ewin nor Ms Ewin filed a response to the application.
11. [11]
    In December 2021, the current respondents acquired Mr Ewin’s land. Shortly thereafter, in that same month, they cut down and removed the offending trees, at the same time removing plants and weeds growing adjacent to the fence which stood on that common boundary line.
12. [12]
    On 3 February 2022, by way of an e-mail sent to the Registry, the first named applicant informed this Tribunal that Mr Ewin’s land had been sold, and that the new owner had cut all the trees. They also included the following statement in that e-mail:

However our fence and retaining wall got damaged due to the size of the trees and some of the roots are sticking to our side that caused the damages of the retaining wall.

I would like to update this dispute and request the new owner to replace the fence and retaining wall at their own cost. Please let me know what I should do to get this case finalised asap.

13. [13]
    On 12 April 2022, the applicants were directed by this Tribunal to advise it if they intended to continue with the application given that Mr Ewin has sold his land and the trees the subject of the application had been removed, and also given that the new owners were not parties to this proceeding.
14. [14]
    On 10 May 2022, the applicants sent an e-mail to this Tribunal in which the following statement was made:

… the property has been sold to a new owner and they have cut the trees along the fence. However due to the size of those trees, the roots have damaged the foundation of the fence and our retaining wall. Part of the retaining wall fall (sic) off already. …

We can’t withdraw the application and request an order for the owner to replace the retaining wall and the fence on (sic) their cost.

15. [15]
    On 18 July 2022, the applicant’s time to comply with the direction of 12 April was extended. At the same time that were directed to advise the Tribunal in writing:

    1. Why the matter of damage to the dividing fence is not appropriately a matter for a fresh separate application for minor civil dispute – dividing fences; and
    2. How any claim for damage to a retaining wall can be claimed within this proceeding given the only relief sought in the Application for a Tree Dispute was removal of vegetation, which has been done.
16. [16]
    On 16 January 2023, Mr and Ms Ewin were removed as respondents in this proceeding, and the current respondents were added in place thereof.
17. [17]
    What then followed were a series of directions for the filing of requisite statements and submissions.
18. [18]
    By way of e-mails shown as having been sent 6 March 2023 and 3 July 2023, the applicants filed their material. In the latter they made this statement:

Fortunately, the current property owner has taken the initiative to remove all the trees. However, it’s important to acknowledge that the damage to the fence and retaining wall by the trees on the neighbour’s property. We cannot bear any additional financial responsibility to rectify the issues resulting from their negligence.

Therefore, we kindly reques (sic) the property owner to replace the fence and our retaining wall utilizing material that meet both our satisfaction. In the spirit of fainess (sic) and goodwill, we are willing to share the costs associated with resolving this matter. …

19. [19]
    On 24 July 2023, the respondents filed their submissions in this proceeding. Therein they:

    1. sought to explain the history of their dealings since acquiring the land;
    2. expressed their view that the condition of the fence could be attributed to age, and that they were agreeable to sharing the cost of replacing the fence, as they assert they proposed to the applicants in January 2022, but noting that they were not in a position to replace the fence until the construction work they are doing to their house is completed;
    3. noted that the offending trees were removed by them in December 2021; and
    4. referred this Tribunal to s 68(2) of the ND Act, making this submission:

This subsection provides that QCAT may not make an order to remedy damage caused by a tree that has been completely removed if the tree-keeper has sold the land on which the tree was situated since the damage was caused.

If the damages to the applicants’ retaining wall (only the bricks part) was caused by tree roots from our property, the damage would have happened during the previous owners’ ownership period. This is because we cut down the trees immediately after transfer of the property and there would be no time for any damage to have happened during that short period.

This means that the tree-keeper at the time the damage occurred was the previous owners. The previous owners (tree-keeper) have since sold the land on which the trees were situated. Therefore, subsection 68(2) applied and QCAT may not make an order to remedy the damage.

It should be noted here that the applicants only made a claim to the damage after the previous owners (tree-keeper) sold the property to us.

…

After handover, we had the trees assessed and decided to cut them down due to the age of the trees and potential future problems. …

These actions resolved the issues that the applicants were facing with the previous owners. … We did it without even being aware of the dispute.

Instead of closing the QCAT case, the applicants now want us to share the costs of a new retaining wall that they want but has nothing to do with our shared fence.

…

We ask that the Tribunal dismiss the applicants’ claims and close this case in our favour.

20. [20]
    By a direction given during the period in which the parties were filing their respective material, on 7 June 2023 it was directed by this Tribunal that the proceeding would be determined on the papers.
21. [21]
    It is against that background that the proceeding came before me for determination.

Relevant Law

22. [22]
    The issue arising from the applicant’s application in this proceeding fall to be decided under the provisions found in the ND Act Chapter 3 - Trees. Under s 61 therein, this Tribunal is seized of jurisdiction to do so. The following provisions relevant to the issues arising in this proceeding are found I that chapter:

41  Overview

1. A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.

2. Generally, this chapter provides for the following ways in which a person may deal with an issue about a tree affecting the person’s land—

1. part 3 deals with the person’s right under the common law to take action to abate a nuisance;

2. part 4 provides for a remedy under which the person may—

1. give a notice to the tree-keeper asking them to remove overhanging branches; and

2. if the work is not done, remove the branches and recover the cost from the tree-keeper;

3. part 5 provides for the person to apply to QCAT for an order.

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. (A)
   serious injury to a person on the land; or
2. (B)
   serious damage to the land or any property on the land; or
3. (C)
   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. …

47  When is a tree situated on land

1. A tree is situated on land if the base of the tree trunk is, or was previously, situated wholly or mainly on the land.

2. Without limiting subsection (1), if a neighbour applies to QCAT for an order under section 66 in relation to a tree and the tree is completely removed from the land, the tree is taken to be situated on the land for the purpose of the application.

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. …

50  Meaning of work

Work, on a tree, includes—

1. cutting and removing any part of the tree (including its branches or roots); and

2. netting the tree; and

3. destroying the tree.

51  Meaning of destroy

Destroy, for a tree, means destroy in any way, including uproot, ringbark or cut down the tree, and includes remove the tree and its stump.

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.

65  Requirements before order may be made

QCAT may make an order under section 66 if it is satisfied of the following matters—

1. the neighbour has made a reasonable effort to reach agreement with the tree-keeper;

2. the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;

3. …

66  Orders QCAT may make

1. ….

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.

68  Order in relation to a removed tree

1. QCAT may make an order under section 66 even if the tree has been completely removed.

Example—

A neighbour may apply for an order requiring the tree-keeper to pay compensation or repair costs for damage caused by a tree even if the tree-keeper has since completely removed the tree.

2. However, QCAT may not make an order to remedy damage caused by a tree that has been completely removed if the tree-keeper has sold the land on which the tree was situated since the damage was caused.

3. For subsection (2), land is taken to be sold on the transfer day for the sale.

23. [23]
    To the extent the applicants sought alternative relief during the course of the proceeding, namely in terms of the replacement of the fence, such is an issue that falls to be determined under the ND Act Chapter 2 – Dividing Fences. For the reasons I explain under the next heading in these reasons, it was not necessary for me to extract relevant provisions from that Chapter as part of these reasons.

Discussion on the Contest between the parties

The fence issue

24. [24]
    I deal firstly with the alternative relief the applicants seeks against the respondents in terms of replacement of the common fence as I noted it in paragraph [12] herein.
25. [25]
    There is a procedure to be followed by a person seeking relief from this Tribunal against an adjoining owner in terms of fencing work, all which is mandated under Chapter 2 of the ND Act. It effectively starts with a ‘Notice to contribute’ being given to the adjoining owner under s 31 or s 32 therein. In the absence of such a notice having been given and the requisite period of time passing since it is given, the right to seek relief from this Tribunal has not arisen.
26. [26]
    There is no evidence within the material before this Tribunal of the applicants having given any such notice to the respondents, whether it be the original respondents or the current respondents. From my reading of that material, given the manner in which the applicants raised the issue of the fence within this proceeding, all as I have noted it in paragraphs [12], [14], and [18] herein, I infer that no such Notice has been given. For this reason, the applicants cannot press a claim for relief against the respondents as part of this proceeding, and thus to the extent the applicants purported to ‘update’ their application, such is without foundation such that it need not be considered further.

The tree issue

27. [27]
    I will address firstly the respondents’ reliance on s 68 of the ND Act.
28. [28]
    Whilst it is correct to say that under this section an order cannot be made against a tree-keeper where the tree has been completely removed if the tree-keeper has sold the land since the damage was caused, it does not mean the respondents entirely escape even potential liability. Their argument is misconceived because it is apparent that they have misunderstood the meaning of that section.
29. [29]
    Proceeding on the assumption that the damage alleged by the applicants was caused by the trees before they were removed, and that the trees have been completed removed including their stumps, it is not enough for the respondents to avoid liability for them to say that such damage was caused when the trees were in place, such being when the previous owner owned the land, and that the trees have now been removed. The fact is the trees were not removed before the land was sold, which for the purposes of s 68 of the Act was the date of transfer of the land to them. That being so, when they acquired the land, they became the ‘tree-keeper’ of those trees for the purposes of Chapter 3 of the ND Act.^[1] Thus, any damage which can be shown to have been caused by those trees, and the liability for same, was effectively inherited by them once they became the owners of the land on which the trees were situated. The fact that they removed the trees upon becoming the owners does not matter. It left open the possibility of the applicants seeking relief against them under s 68 of the ND Act in terms of such damage, such falling within the ambit of s 46 of the Act and thus a tree dispute.
30. [30]
    That being so, in terms of the tree dispute as it was pressed by the applicants, as I read and understood the material before the Tribunal:

    1. it was common ground that the offending trees had been removed; but
    2. the applicants asserted that the trees, when they were in existence, were the cause of the damage to the retaining wall on their land, and as such pressed for relief from this Tribunal.
31. [31]
    In this regard a few critical observations must be made:

    1. It is entirely unclear as to whether the trees were simply cut down and so are left to continue to grow both vertically and in terms of an advancing root structure, evidence of same which should have been provided by the applicants, such which could continue to exacerbate the damage if the tree root system was causing it.
    2. It may be the case that the stumps have also been removed so that it may properly be said the trees have been destroyed for the purposes of s 51 of the ND Act and so such exacerbation was not even a possibility.
    3. Save only for some photographs the applicants provided which show what appears to be root growth through a structure which could be a retaining wall, albeit without any identifying marks which show the place at which it is said these photos were taken, and as such of no probative value, there is an absence of any evidence from the applicants to support the assertion that the cause of the damage to their retaining wall were the trees. Moreover, there was an entire absence of evidence that shows the damage is such to be categorised as ‘serious’ or ‘substantial’ for the purposes of s 46, s 52, and s 66 of the ND Act.^[2]
    4. There is also an absence of any evidence, or at the very least submissions, from the applicants as to what efforts they have made to reach agreement with the respondents on the issues complained of regarding alleged damage, nor any evidence of them having taken all reasonable steps (to the extent any were available) under any relevant local law, local government process, or local government administrative process, so as this Tribunal could be satisfied such has occurred, or is not open to be a relevant consideration, all for the purposes of ss 65(a) and (b) of the ND Act.
32. [32]
    All that being so, the fact the trees have now been removed, at least to the extent they were cut down, effectively resolved the applicants’ complaint and the relief they sought in their application to this Tribunal, recalling it was merely for an order that the offending branches be removed or pruned and that the costs of doing same be met by the respondent.
33. [33]
    But, to the extent the applicants sought to expand their application to seek relief in terms of damage to their property alleged to have been caused by the trees, absent the requisite evidence of that asserted fact, there is simply no basis upon which this Tribunal can make any finding in the applicants’ favour.

Conclusion

34. [34]
    For these reasons, there is no premise for this Tribunal to grant any of the relief the applicants seek in this proceeding, be it in the form requested in the original application as made, or as sought to be expanded by the applicants during the course of the proceeding. The only possible outcome was that the application should be dismissed. An order was made to that effect.