McMahon v Savage[2024] QCAT 27

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant, Gina McMahon, the owner and occupier of a residence at 13 Penguin Parade, Burleigh Waters, had over a period of years a number of discussions with her neighbour Ron Black, the owner of the adjoining property at 11 Penguin Parade, in relation to two trees growing on Mr Black's property which overhang her property.
2. [2]
   Following Mr Black's death, she had a further discussion with his daughter and the executor of his estate Vivian Savage.
3. [3]
   Dissatisfied with the outcome of that discussion, Ms McMahon had some overhanging branches lopped on or about 10 March 2020 and filed in the Tribunal an application for a tree dispute on 3 April 2020.
4. [4]
   11 Penguin Parade was ultimately sold by Ms Savage to Christopher James Hughes and he was added as a party by the Tribunal.
5. [5]
   In her application, Ms McMahon alleged that the two trees caused substantial ongoing and unreasonable interference with her use and enjoyment of her property by dropping “tree debris” in her pool, damaging her pool pump and creepy crawly and lifting the block work dividing fence between the two properties which could cause the fence to fall.
6. [6]
   The application identified a crack which had developed in the fence and a photograph of that crack was included with the application. A further attachment to the application requested the costs of the tree lopping in the sum of $80 be “returned” to her.
7. [7]
   Ms Savage says that the offending trees and two others were cut down and removed from the property on 19 May 2020. Submissions lodged in the Tribunal acknowledged that the trees have been cut down and removed.
8. [8]
   Ms McMahon has indicated that she wished to persist with her claim for $800 and also seek reimbursement of the application filing fee of $345.80. On 13 January the Tribunal gave directions for the filing of evidence and submissions in relation to compensation and costs by both parties, with those issues to be determined on the papers without an oral hearing.

Compensation

9. [9]
   The Tribunal's jurisdiction to make orders is limited to those orders it is authorised to make by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or the relevant enabling act, in this case the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Neighbourhood Disputes Act’).
10. [10]
    While a tree keeper’s failure to cut and remove branches which overhang an adjoining property is a breach of the Neighbourhood Disputes Act (section 52(1)) that failure does not create a civil cause of action under the Act (section 52(3)). The Tribunal cannot make an order under section 52 based solely on the tree keeper’s breach.
11. [11]
    Section 66 of the Neighbourhood Disputes Act sets out the orders the Tribunal may make. Relevantly, section 66(2) gives the Tribunal power to make orders it considers appropriate to remedy, restrain, or prevent serious damage to the property and substantial ongoing and unreasonable interference with the use and enjoyment of the property.
12. [12]
    The Tribunal is not being asked to compensate Ms McMahon for any damage to the dividing fence or pool, and there is in any event insufficient evidence before the Tribunal to justify such an order. Since the trees have now been removed, there is no ongoing interference with the use and enjoyment of her land.
13. [13]
    Section 66(5) of the Neighbourhood Disputes Act permits the Tribunal to make an order requiring a tree keeper to pay the costs associated with carrying out an order made under section 66, but no such order has been made by the Tribunal. It was Ms McMahon's decision to lop the trees.
14. [14]
    For these reasons, the Tribunal does not have jurisdiction to make the orders sought by Ms McMahon.

Costs

15. [15]
    Section 100 of the QCAT Act provides that parties to proceedings in the Tribunal bear their own costs unless the QCAT Act or an enabling act provide otherwise.
16. [16]
    The Neighbourhood Disputes Act does not provide otherwise.
17. [17]
    Section 102 of the QCAT Act permits the Tribunal to make a costs order where the “interests of justice” require it. Ms McMahon asserts that she arranged to have the branches lopped because Ms Savage failed to adequately respond to her demand that action be taken.
18. [18]
    On Ms McMahon's account her discussions with Ms Savage took place in January 2020. Despite her assertions that Ms Savage was aware of the issue as early as 2016 (which is denied by Ms Savage) she could not reasonably be expected to do anything about it until after the death of her father and the grant of probate. I am unable to find any evidence which suggests Ms Savage has acted unreasonably to the detriment of Ms McMahon. The interest of justice does not require a cost order in this instance.
19. [19]
    I am of the view there is insufficient evidence to conclude that Ms McMahon's application would have succeeded in any event.
20. [20]
    The application is dismissed without orders for compensation or costs.