Thorley v McGee[2024] QCAT 373

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr McGee and Ms Boyle share a common boundary with Mr Thorley. A mock orange hedge is situated near the fence line on Mr McGee and Ms Boyle’s land. Mr Thorley applied^[1] for orders that:

   1. Mr McGee and Ms Boyle remove or prune the branches of the hedge;
   2. a person can enter Mr McGee and Ms Boyle’s land to carry out an order;
   3. a person can enter Mr McGee and Ms Boyle’s land to obtain a quote to carry out an order;
   4. Mr McGee and Ms Boyle pay the costs for carrying out these orders.
2. [2]
   Mr Thorley contends that the hedge:

   1. is causing injury to him as it causes him extreme stress because it hinders his quality of life;
   2. is likely to cause within the next 12 months serious damage to his land because it is devaluing his property; and
   3. is causing substantial, ongoing and unreasonable interference with his use and enjoyment of his land. He says that the hedge obstructs airflow to his house, which in turn encourages mosquitoes because it is still and says that the hedge is full of large black ants. He claims that the hedge is obstructing sunlight making it difficult to grow some types of vegetables. He is also concerned that his view, whilst not currently obstructed, will become obstructed if the height of the hedge continues to grow at the current rate.
3. [3]
   Mr Thorley says that the hedge should be pruned to an acceptable height and width so that he is able to maintain his side in future. He says Mr McGee and Ms Boyle have allowed the height and width of the hedge to get out of control.
4. [4]
   In his Statement of evidence^[2] Mr Thorley seeks orders that the hedge be maintained yearly to ‘carport or house gutter height’. As I understand it, this is a reference to Mr McGee and Ms Boyle’s carport or house gutter height.
5. [5]
   He seeks half of the costs he has incurred, which he states are $1,122.90. Mr Thorley paid a filing fee of $367. The balance of the costs are not explained but may relate to the arborist report he has filed to which I will refer below.
6. [6]
   Mr McGee and Ms Boyle dispute Mr Thorley’s claims.

Have the pre-requisites of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) been satisfied?

7. [7]
   I am satisfied that Mr Thorley has complied with the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act.
8. [8]
   There is evidence that he texted Mr McGee and Ms Boyle on 3 February 2023 about the hedge needing a trim on top and on his side and offered to help. There is also evidence that in late February 2023 he and his wife sought to mediate the dispute and that on 17 March 2023 they were informed that Mr McGee and Ms Boyle had declined the offer of mediation.
9. [9]
   There is some evidence that Mr Thorley complied with the direction to serve the Council with the Application by attending on the Council in person.
10. [10]
    There is no specific evidence as to whether the branches overhang the common boundary by at least 50cm. The Application asserts that branches overhang by 50cm or more and that the branches are more than 2.5 metres above the ground. Mr Thorley refers to a photograph. Although the evidence could be clearer, I find that it is more likely than not, based on the photographs attached to the Application, that at the time of the Application that at least some of the branches overhang the common boundary by 50cm or more and that at least some of those branches are more than 2.5 metres above the ground.^[3] The evidence is that the parties have been unable to resolve the issue informally and the process under section 57 of the ND Act does not apply to the extent that at least some of the branches are more than 2.5 metres above the ground.^[4]
11. [11]
    The primary issue, as I understand it, is the height of the hedge, which makes it difficult for Mr Thorley to maintain his side.

Should an order be made?

12. [12]
    I am satisfied, on the balance of probabilities, that an order is appropriate for the reasons set out below.
13. [13]
    Mr Thorley is the applicant and bear the onus of establishing on the balance of probabilities his entitlement to orders under the ND Act.
14. [14]
    The Tribunal has broad powers to hear and decide:^[5]

…any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

15. [15]
    Land is ‘affected by a tree’ at a particular time if branches from the tree overhang the land, the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land,^[6] and the land adjoins the land on which the tree is situated.^[7] A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[8]
16. [16]
    Limited evidence has been filed in this matter.
17. [17]
    As referred to earlier in these reasons, there is some photographic evidence before me that shows that at or about the time of the Application branches of the trees comprising the hedge overhang Mr Thorley’s land. It is not disputed that the hedge is situated on adjoining land.
18. [18]
    There is some dispute as to the height of the hedge to which I will refer later.
19. [19]
    I am satisfied that:

    1. the hedge is on land recorded in the freehold land register.^[9]
    2. the Application can be made in relation to the hedge, which comprises two or more mock orange trees.^[10]
    3. Mr McGee and Ms Boyle are tree-keepers for the hedge.^[11]
    4. Mr Thorley is a neighbour in relation to the hedge.^[12]
20. [20]
    The Tribunal has broad powers to make an order it considers appropriate about a tree affecting the neighbour’s land to prevent serious injury to any person^[13] or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land^[14] or substantial, ongoing and unreasonable interference with Mr Thorley’s use of his land.^[15]
21. [21]
    The ND Act recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved.^[16] Mr Thorley does not seek the removal of the hedge. There is no evidence before me that pruning will harm the hedge.
22. [22]
    Under the ND Act Mr McGee and Ms Boyle, as tree-keepers, are responsible for:

    1. cutting and removing any branches of the trees comprising the hedge that overhang a neighbour’s land.^[17]
    2. ensuring the trees do not cause serious injury to a person or serious damage to a person’s land or property or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of a person’s land.^[18]

How tall is the hedge?

23. [23]
    I find that the hedge is more than 2.5 metres tall. There is insufficient persuasive evidence to enable me to make a more precise finding as to the height of the hedge.
24. [24]
    Mr Thorley obtained an arborist’s report from Mr Pratt.^[19] Mr Pratt’s report states that he undertook a visual assessment from ground level on 16 October 2023. He estimates that the height of the hedge is 5 metres and the length 20 metres. There is no evidence that he took measurements. He reports that the hedge encroaches into Mr Thorley’s land. He recommends hedge reduction by at least 2 metres or to gutter height of Mr McGee and Ms Boyle’s house be conducted and annually thereafter. The report does not expressly consider the factors set out in the provisions of the ND Act.
25. [25]
    Mr McGee and Ms Boyle dispute Mr Pratt’s estimates and rely upon some photographs showing the relative heights of fences and the hedge. They say the highest point of the hedge is 3.8 metres, a reduction of the hedge by 2 metres will result in the hedge being between 1.5 and 1.8 metres high. Mr McGee and Ms Boyle do not give evidence that they took measurements. Having regard to the photographic evidence I am not satisfied that the hedge is 5 metres high.

Serious injury and serious damage

26. [26]
    I not satisfied, on the balance of probability, on the limited evidence before me, that the hedge is causing serious injury to Mr Thorley or serious damage to his land or property on his land.
27. [27]
    The primary consideration under the ND Act is the safety of any person.^[20] There is no persuasive evidence before me that anyone’s safety is at risk from the hedge. Mr Thorley claims the hedge is causing him extreme stress as it hinders his quality of life. There is no detailed evidence in relation to this claim nor is there medical or psychological evidence to support Mr Thorley’s claim.
28. [28]
    Mr Thorley claims that the hedge is likely to cause serious damage to his land or property on his land within the next 12 months. He says it is devaluing his property. Mr McGee and Ms Boyle deny that the hedge is devaluing Mr Thorley’s property. They contend that the hedge was in a similar state at the time of Mr Thorley’s purchase and provide some photographs from realestate.com.^[21] It is difficult to compare those photographs with others in evidence before me. There is limited evidence as to the height and state of the hedge at the time of purchase.
29. [29]
    There is no detailed evidence in relation to this claim nor is there valuation evidence to support Mr Thorley’s claim.

Substantial, ongoing and unreasonable interference

30. [30]
    I am satisfied, on the balance of probability, that the hedge causes substantial, ongoing and unreasonable interference.
31. [31]
    I consider each of the matters relied upon by Mr Thorley.

Obstruction of wind/airflow

32. [32]
    I am not satisfied, on the limited evidence before me, on the balance of probability, that the hedge causes substantial, ongoing and unreasonable interference within the meaning of the ND Act by reason of the hedge obstructing wind/airflow because there is insufficient evidence to find that the hedge causes a substantial obstruction of wind/airflow.
33. [33]
    Mr Thorley says that the hedge obstructs wind and impedes airflow to his house, which encourages mosquitoes. He says that light breezes do not penetrate the hedge so that they cannot rely upon them to cool their home and minimise their electricity consumption.
34. [34]
    He says that as he is getting older, he needs the height to be reduced so that he is able to maintain his side. In the Application he seeks an order that the hedge be maintained at a height of 2 metres.
35. [35]
    Mr McGee and Ms Boyle say that their house is 4 metres from the boundary fence and the hedge is lower than the roof peak of their house, which at its highest is 4.8 metres. They dispute that the hedge, as distinct from possibly their house, obstructs breezes. They rely upon photographs attached to their Response^[22] which appear to show the hedge below their roof peak and below the gutter line of Mr Thorley’s house, which appears to be at a similar level to the roof peak. They say that they do not have an issue with mosquitoes.
36. [36]
    There is no meteorological evidence about the prevailing breezes or their frequency. The evidence is that Mr McGee and Ms Boyle’s land is to the north of Mr Thorley’s land. I accept that the existence of the hedge may contribute to airflow reduction from northerly breezes. I accept that generally a breeze will deter mosquitoes. I also accept that if there are breezes electricity consumption is likely to be less than when there are no breezes because fans or air-conditioning are more likely to be relied upon when there are no breezes.
37. [37]
    However, there is no sufficient evidence before me upon which I could find that such interference is substantial.

Obstruction of sunlight

38. [38]
    I am not satisfied, on the balance of probability, that the hedge causes substantial, ongoing and unreasonable interference within the meaning of the ND Act by reason of obstruction of sunlight.
39. [39]
    In the Application Mr Thorley relies upon an obstruction of sunlight and said that the hedge made it difficult to grow some types of vegetables.
40. [40]
    Where the interference claimed is an obstruction of sunlight the tree must rise at least 2.5 metres above the ground and the obstruction to a window or roof of a dwelling must be severe.^[23]
41. [41]
    There is no evidence before me that the trees cause a severe obstruction of sunlight to a window or roof of Mr Thornley’s dwelling as distinct from shading his vegetable garden. In any event, there is some evidence before me that Mr McGee and Ms Boyle removed a section of the hedge adjacent to Mr Thorley’s vegetable garden to allow more sunlight on that area of his garden.

Obstruction of view

42. [42]
    Mr Thorley refers to a possible obstruction of a view in future if the trees continue to grow taller. It is not necessary to consider this ground because Mr Thorley does not claim a current obstruction and there is no persuasive evidence as to when such an obstruction is likely to occur.
43. [43]
    Where the interference is an obstruction of a view it must be a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. As referred to earlier there is limited evidence of the height of the trees when Mr Thorley purchased and how that compares to the current height of the trees.
44. [44]
    The Tribunal has previously found that a severe obstruction is one that must be considerable.^[24]
45. [45]
    I do not consider this ground further.

Ants

46. [46]
    I am not satisfied, on the limited evidence before me, on the balance of probability, that the hedge causes substantial, ongoing and unreasonable interference within the meaning of the ND Act by reason of the hedge having ants.
47. [47]
    Mr Thorley says that if they try to trim the hedge it is full of large black ants. I infer that the ants bite but there is no evidence as to the severity of the consequences.

Difficult to maintain

48. [48]
    I am satisfied, on the balance of probability, that the hedge causes substantial, ongoing and unreasonable interference by reason of it being difficult to maintain.
49. [49]
    Mr Thorley essentially says, and I accept, that as he is getting older, he is finding it difficult to maintain his side of the hedge because the hedge is more than 2.5 metres high and branches overhang into his land. He says, and I accept, that he now needs to hire someone to trim his side of the hedge.
50. [50]
    Mr McGee and Ms Boyle, as tree-keepers are responsible for cutting and removing any branches of the trees comprising the hedge that overhang a neighbour’s land. Any previous agreement by Mr Thorley to maintain his side does not relieve the tree-keepers’ of their responsibilities under the ND Act. Their refusal to comply with their obligations has resulted in the hedge being difficult to maintain for Mr Thorley and now requires that he pay someone to do so. I find, on balance, that this is a substantial, ongoing and unreasonable interference when it is not Mr Thorley’s obligation to maintain the hedge.

Other considerations

51. [51]
    I am required to consider various matters including the contribution to amenity the trees make to Mr McGee and Ms Boyle’s land, the local ecosystem, public amenity and privacy.^[25]
52. [52]
    The parties accept that the hedge contributes to their privacy. Mr Thorley’s house is a double story house with front and rear verandahs and a north facing kitchen, all of which at least in part look over Mr McGee and Ms Boyle’s land and their single-story house.
53. [53]
    Mr McGee and Ms Boyle estimate the height of Mr Thorley’s upper story to be approximately 3.5 to 5.5 metres from ground level. Mr McGee and Ms Boyle dispute that their privacy would be maintained if the hedge was reduced to 2 metres. They contend it would degrade their quality of life and devalue their property. They point to the 5 sets of windows at the rear of their house,^[26] which face south towards the hedge and Mr Thorley’s house. They estimate that they are approximately 2 to 3 metres from ground height. They also give evidence that the gutter height at the back of their house is just over 3 metres high.
54. [54]
    The evidence is that the hedge was in place at the time Mr Thorley purchased his home. As stated earlier in these reasons, there is no detailed evidence as to the height of the hedge at that time compared to at the commencement of the Application or at the time of filing statements of evidence.
55. [55]
    Mr McGee and Ms Boyle contend that the hedge contributes to the amenity of their land including in relation to landscaping, garden design and protection from the elements.
56. [56]
    I may consider any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or interference or the likelihood of injury or damage or interference.^[27]
57. [57]
    There is no specific evidence as to these matters other than previous agreed trimming and discussions as to maintenance of the trees, about which there is a factual dispute.
58. [58]
    Mr Thorley says that Mr McGee and Ms Boyle agreed to maintain the hedge. Mr McGee and Ms Boyle say that they agreed to maintain their side of the hedge and Mr Thorley agreed to maintain his side of the hedge.
59. [59]
    It is difficult to reconcile the evidence to make a finding as to what the agreement was. However, even if Mr McGee and Ms Boyle’s version was accepted there was no agreement about who was to maintain the height of the hedge. They are the tree-keepers with responsibilities under the ND Act.
60. [60]
    Mr Thorley’s evidence is that in or about January 2022, by previous agreement, he had cut the height of the hedge to the top of Mr McGee and Ms Boyle’s carport. About a year later he sought the hedge to be trimmed again because it had grown. Mr McGee and Ms Boyle concede^[28] that they had given permission for Mr Thorley to trim the hedge on Mr Thorley’s side to the level of their carport, which they contend is 3.5 metres. They also say that Mr Thorley trimmed the hedge shorter than agreed and cut the hedge on their side of the fence, which impacted their privacy by making the hedge short and thin.

What orders are appropriate to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Thorley’s land?

61. [61]
    I find that Mr McGee and Ms Boyle are to trim initially and at least annually thereafter:

    1. the height of the hedge to 3.3 metres;
    2. the hedge so that no branches extend past the common boundary.
62. [62]
    There is no clear evidence of the width of the hedge or the width which would remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Thorley’s land.
63. [63]
    Mr McGee and Ms Boyle have failed to comply with their obligations to cut and remove any branches of the hedge that overhang into Mr Thorley’s land. There is no clear evidence before me that they take steps to maintain the height of the hedge.
64. [64]
    To prevent ongoing interference with Mr Thorley’s use and enjoyment of his land I find that they are to annually trim the height of the hedge to 3.3 metres and trim branches so that they do not extend past the boundary. This should minimise the likelihood that branches will overhang into Mr Thorley’s land. If the height of the hedge is reduced to 3.3 metres and maintained annually at that height the hedge will remain taller than the windows on the southern side of Mr McGee and Ms Boyle’s house, which, on the evidence before me, will assist to maintain each parties’ privacy.  

Human Rights Act 2019 (Qld)(‘HR Act’)

65. [65]
    The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.^[29] A human right may only be subjected to reasonable limitations.^[30] The parties, who were self-represented, did not make any submissions in relation to the HR Act.
66. [66]
    In deciding this application:

    1. I am not acting as a public entity because I am not acting in an administrative capacity.^[31]
    2. I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.^[32]
67. [67]
    I accept that this proceeding and the determination of it potentially impacts both parties’ rights to a fair hearing and I considered them. In coming to my decision, I have considered the documents filed by both parties.^[33]
68. [68]
    I accept that these proceedings and my decision potentially impacts other rights, in particular property rights^[34] and the right to privacy and reputation.^[35] I have considered the parties’ human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.^[36] Any limitation of the human rights is consistent with the objects of the Act^[37] and the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).^[38]