Nielsen v Yang[2024] QCAT 267

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   By an Application for a tree dispute filed on 1 September 2022 (‘the Application’), the first-named applicant (‘Mr Nielsen’) sought orders pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’) that the Respondent carry out work to remove two trees (described by Mr Nielsen as a ‘fig tree’ and a ‘melaleuca tree’) which are located on a property owned by the Respondent. Mr Nielsen is the owner of one of two lots which, together with common property, comprise the scheme land for the Triton Villas Port Douglas Community Titles Scheme 31210 (‘the Scheme’). The second-named applicant is the Body Corporate for the Scheme (‘the Body Corporate’). The Respondent’s property adjoins the scheme land. The properties are located in Port Douglas, Queensland.

2. [2]
   A Tree Assessment Report dated 24 July 2023 (‘the Report’) was prepared by Mr Steven Richards, who was appointed by the Tribunal to inspect the trees and provide an expert report to the Tribunal on the issues raised in the Application.
3. [3]
   Mr Richards identified three trees on the Respondent’s property. The relevant details of the trees are set out in the Report as follows:

4. [4]
   Mr Richards refers to the respective trees as follows:

   1. Tree 1: a ‘Weeping Benjamin Fig’ (which has grown as a ‘Strangler Fig’ using Tree 2 as a host);
   2. Tree 2: a ‘Broad-Leaved Paperbark’; and
   3. Tree 3: a ‘Mango’ tree.
5. [5]
   Mr Nielsen’s primary complaint is of the ‘invasion’ of his property by the branches and the roots of Tree 1 and Tree 2. Mr Nielsen has provided photographs of a root from Tree 1 that passes under the dividing fence, has lifted concrete stepping stones, and blocked the storm water drain at the edge of his verandah. Tree roots are said to have penetrated the ground beneath the slab of Mr Nielsen’s house.
6. [6]
   Neither of the Applicants nor the Respondent have provided a separate arborist’s report.

Joinder of the Body Corporate and leave to be represented

7. [7]
   On 28 February 2023, Mr Nielsen filed with the Tribunal a letter signed on behalf of the Body Corporate, as directed by Direction 1 of Directions made by the Tribunal on 6 February 2023. The letter was signed by Mr Nielsen, and Mr Ric Clooney (who is the only other lot owner in the Scheme), as committee members. The letter:

   1. identified the name of the Body Corporate;
   2. stated that both parties agreed that the Body Corporate be joined as an applicant to the proceedings;
   3. stated that the Body Corporate consented to Mr Nielsen being granted leave to represent the Body Corporate in the proceedings.
8. [8]
   In my view, Mr Nielsen is properly a party to the Application.^[1]
9. [9]
   However, given that the proposed orders potentially require access to be provided to the arborist to the Applicants’ property to carry out the work (which would necessarily require access to the common property and Mr Nielson’s property), I consider that it is appropriate to make an order joining the Body Corporate as a further applicant to the proceeding (and to grant leave to Mr Nielsen to represent the Body Corporate for the proceeding).

The Report

Tree 1

10. [10]
    In the Report, Mr Richards said the following in relation to Tree 1:

    1. Tree 1 is wholly located within the Respondent’s property and is positioned approximately one metre from the dividing fence;
    2. Tree 1 is 12 metres in height with an average canopy spread of 16 metres;
    3. Tree 1 was not planted; it has organically germinated;
    4. Tree 1 is using Tree 2 as a host;
    5. branches from Tree 1 extend approximately seven metres across the dividing fence at a height of four metres above ground level;
    6. roots from Tree 1 were observed at 11 metres from the base of the tree growing in close proximity to the foundations of Mr Nielsen’s dwelling;
    7. Tree 1 is mature, however, growth rates are still very dynamic and the full size potential of the tree has not been reached;
    8. root exploration and establishment, as well as increases in canopy size, will continue for many years;
    9. Tree 1 will continue to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;
    10. removal of Tree 1 needs to occur in a short time frame to ensure that the future health of Tree 2 is not compromised;
    11. it is recommended that Tree 1 be removed in its entirety to ensure the survival of Tree 2 and to mitigate the nuisance been caused and to prevent further invasive growth;
    12. Tree 1 has become a nuisance and if left to survive it will overtake the area destroying infrastructure and killing Tree 2;
    13. all strangling roots encircling the trunk of Tree 2 will need to be carefully removed to ensure ‘girdling’ does not continue;
    14. due to access issues for machinery and vehicles, tree removal will need to occur utilising a climbing arborist to carefully dismantle the tree using ropes and pulleys to lower component parts.

Tree 2

11. [11]
    Mr Richards said the following in relation to Tree 2:

    1. Tree 2 is a mature Broad-Leaved Paperbark which is wholly located within the Respondent’s property and is positioned approximately one metre from the dividing fence;
    2. Tree 2 is 20 metres in height with an average canopy spread of eight metres;
    3. Tree 2 has been in situ for 60 to 70 years and is protected by Douglas Shire Council as part of a development application;
    4. Tree 2 extends across an ‘adjacent property’ (which I take to mean Mr Cooney’s lot within the Scheme) by approximately three metres but does not encroach upon Mr Nielsen’s property;
    5. limb clearance above ground level is approximately eight metres;
    6. Tree 2 is ‘hosting’ Tree 1 and is being girdled. Health is still good which is in part due to the very thick padded nature of Paper Bark trees however in a short period of time the ‘cambium’ will be crushed blocking vascular flow and killing Tree 2.

Tree 3

12. [12]
    Mr Richards said the following in relation to Tree 3:

    1. Tree 3 is a juvenile to early mature Mango which is wholly located on the Respondent’s property and is positioned approximately 300 mm from the dividing fence;
    2. Tree 3 is seven metres in height with an average canopy spread of four metres;
    3. Tree 3 is suppressed beneath the canopies of Trees 1 and 2 and is growing ‘phototropically’ (which I take to refer to growing towards the sunlight) to the east across the dividing fence;
    4. no component of the canopy is above the Respondent’s property;
    5. Tree 3 will become isolated and exposed upon removal of Tree 1 increasing problems for the dividing fence if left in its current position;
    6. it is recommended that Tree 3 be removed in its entirety as part of the process of removing Tree 1 to prevent current and future nuisance.

The Respondent’s position

13. [13]
    In the Response filed 24 October 2022, the Respondent, in summary:

    1. opposed the removal of Tree 2; and
    2. appears to have requested a ‘registered arborist’ to investigate Tree 1, including how the roots could be ‘trimmed’.

Is it appropriate to make any orders under s 66 of the NDA?

14. [14]
    Subject to subsections 42(2) to (4) of the NDA, pursuant to s 61 of the NDA, the Tribunal has jurisdiction to hear and decide any matter in relation to a ‘tree’ in which it is alleged that, as at the date of the Application, ‘land is affected by the tree’.^[2]
15. [15]
    In the present case, a threshold question arises as to whether the Tribunal has jurisdiction to deal with Tree 2.

Tree 2

16. [16]
    As noted by Mr Richards, Tree 2 is the subject of a development application relating to the Respondent’s property. Tree 2 is required to be maintained.
17. [17]
    In my view, by operation of s 42(4)(c) of the NDA, Chapter 3 of the NDA does not apply in relation to Tree 2 and the Tribunal has no jurisdiction to make orders in relation to that tree.^[3] For completeness, I note that Mr Richards’ recommendation was that Tree 2 be retained and the Tribunal would have refused to order the removal of Tree 2 in any event.
18. [18]
    I will now address Trees 1 and 3.

Trees 1 and 3

19. [19]
    Part 5 of the NDA (in which s 59 and s 61 are situated) applies if the ‘neighbour’ cannot resolve the issue using the process under Part 4 of the NDA. I find that the Applicants cannot resolve the issue under Part 4^[4] because, in relation to Trees 1 and 2, it is alleged that the Applicants’ land is affected by a tree ‘other than because branches from the tree overhang the land’ (see Example 1 to s 59 of the NDA), and in relation to Tree 3, the branches overhang the scheme land by more than 50cm and at a height of in excess of 2.5 metres. I am also satisfied that the Applicants have made a reasonable effort to reach agreement with the Respondent,^[5] having regard to the correspondence sent by Mr Nielsen to the Respondent.
20. [20]
    Having regard to the Report, I find that each of Trees 1 and 3 is a ‘tree’ as defined in s 45 of the NDA.
21. [21]
    I further find that each of the Applicants is a ‘neighbour’ within the meaning of that term by virtue of:

    1. s 49(1)(a) of the NDA in respect of Mr Nielsen;^[6]
    2. s 49(1)(b) of the NDA in respect of the Body Corporate.
22. [22]
    As to when land is ‘affected by a tree’, s 46 of the NDA provides:

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.

23. [23]
    On the basis of the material before the Tribunal, I find that:

    1. Trees 1 and 3 are situated on the Respondents’ property (see s 47(1) of the NDA);
    2. the respective properties are adjoining properties (see s 46(b)(i) of the NDA);
    3. the Respondent was given copies of the Application (see s 65(d) of the NDA);
    4. Mr Nielsen’s land is affected by each of the Trees (see s 46 of the NDA) because:
       1. branches from each of the Trees overhang the land;
       2. additionally, for the reasons set out below in relation to s 66, each of Trees 1 and 3 is causing, or is likely within the next 12 months to cause, substantial, ongoing and unreasonable interference with the use and enjoyment of Nielsen’s land.
24. [24]
    Pursuant to s 66 of the NDA, if land is found to be affected by a tree, the Tribunal ‘may’ make orders it considers appropriate including, relevantly, to ‘remedy, restrain or prevent’ ‘substantial, ongoing and unreasonable interference with’ the use and enjoyment of Mr Nielsen’s land (see s 66(2)(b)(ii)).
25. [25]
    As to the meaning of ‘substantial’, in Belcher v Sullivan,^[7] K.S. Dodds, Judicial Member, said:^[8]

‘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.

26. [26]
    In my view, the evidence of Mr Nielsen plainly establishes that the roots of Tree 1 are causing and will continue to cause substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Nielsen’s property. The roots have caused and are causing property damage by lifting concrete stepping stones and blocking the storm water drain at the edge of Mr Nielsen’s verandah. I also accept Mr Nielsen’s contention that the exposed roots represent a serious tripping hazard for a person such as himself (who has a neurological condition), as well as potential visitors to his property (see Mr Nelson’s submissions filed on 10 November 2023, paragraph 4). I am satisfied that s 46(a)(ii)(C) of the NDA is satisfied.
27. [27]
    With respect to Tree 3, the evidence of Mr Richards is that the whole of the canopy of the tree overhangs the dividing fence, that is, none of the canopy sits over the Respondent’s property. Mr Richards also notes that upon removal of Tree 1, Tree 3 will become isolated and exposed, increasing problems for the dividing fence and that Tree 3 should be removed in its entirety to prevent current and future nuisance. I am satisfied that on the basis of Mr Richards’ evidence s 46(a)(ii)(C) of the NDA is satisfied.
28. [28]
    Section 72 of the NDA provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. In my view, the issue with respect to each of Trees 1 and 3 cannot be satisfactorily resolved other than by removal.
29. [29]
    With respect to Tree 1, as noted by Mr Richards, it is strangling Tree 2 and will ultimately kill Tree 2. There is no suggestion by Mr Richards that any remedial work short of removal can be undertaken to prevent the intrusion of roots into Mr Nielsen’s property and to prevent the grave risk posed to Tree 2 by Tree 1. In those circumstances, I consider that Tree 1 should be removed.
30. [30]
    With respect to Tree 3, one possible solution may be to cut the tree down at a height immediately below that of the dividing fence. However, this would leave a tree stump less than approximately two metres in height. In my view, this is not a satisfactory solution and it is appropriate to remove the tree in its entirety.
31. [31]
    Given the risk posed by Tree 1 to Tree 2, I consider it appropriate that the work be carried out within six weeks of the date of the Decision. I also consider that the work should be done at the Respondents’ cost given that Trees 1 and 3 are wholly situated on the Respondent’s property and that Mr Nielsen first raised the issue of the intrusion of, relevantly, the roots of Tree 1 with the Respondent in late November 2021. Given the difficulty of removal of Tree 1, I consider that, consistently with Mr Richards’ recommendation, the removal of the trees should be undertaken by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, who holds insurance cover for the work.
32. [32]
    I also propose to make orders requiring the Applicants to provide access to the arborist if needed. The detailed orders are set out at paragraph [33] below, which orders I consider appropriate to make pursuant to s 66 of the NDA.

Orders

33. [33]
    For the above reasons, pursuant to s 66 of the NDA, I make the following orders:

    1. Body Corporate for Triton Villas Port Douglas Community Titles Scheme 31210 (‘the Body Corporate’) is joined as a further applicant to the proceeding.
    2. David Nielsen is granted leave to represent the Body Corporate in the proceeding.
    3. The Respondent must carry out work to remove the following trees (‘the Trees’) on the Respondent’s land:

1. the Ficus benjamina (Weeping Benjamin Fig); and
2. the Mangifera indica (Mango tree).
   4. The removal of the Trees (‘the Work’) must be carried out:

1. within six (6) weeks of the date of the Decision;
2. by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the work; and
3. at the Respondent’s cost.
   5. If the arborist requires access to any part of the Applicants’ land to carry out the Work:

1. the Applicants must provide access to the arborist, if access is requested by notice given by the Respondent or the arborist to the Applicants, by email or personal service, not less than three (3) days prior to the date on which the Work is to be carried out; and
2. any culms, stems, or other vegetative matter must be removed from the Applicants’ land in the carrying out of the Work.

6. Should the Work not be carried out by the Respondent within the period set out in Order 4(a):

1. the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Order 4(b);
2. for the purpose of carrying out the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondent’s land to carry out the Work, subject to the Applicants giving notice to the Respondent, by email or personal service, not less than three (3) days prior to the date on which the Work is to be carried out; and
3. the cost incurred by the Applicants in engaging an arborist to carry out the Work shall be recoverable from the Respondent as a debt.