Knight v Breen[2024] QCAT 399

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Knight and Mr Knight (the neighbours) are the owners of a home at 54 Stevenson Street, Barlows Hill, in coastal Central Queensland. They are an elderly couple.
2. [2]
   Mr Breen (the tree-keeper) is the owner of the adjoining home at 52 Stevenson Street, Barlows Hill. He is a retired professional horticulturist with over 50 years experience, and holds an industry qualification of an advanced Certificate of Horticulture from Ryde School of Horticulture (TAFE NSW).^[1]
3. [3]
   This matter concerns nine bamboo clumps growing on the tree-keeper’s land. The neighbours listed the issues caused by the bamboo in their Application for a Tree Dispute filed on 13 July 2020 as follows:

1. Our roof gutters are so clogged with bamboo leaves and we will need to pay someone to come in to clear them on a regular basis.
2. Our Ute which is kept on the concrete around that side of our house is continually clogged in the windscreen and motor with bamboo leaves. We paid $440 in July 2019 to have the leaves blown out and cleaned from the motor.
3. The bamboo trees are approx. 35ft high and block our antenna and solar panels and droop over onto our roof when it rains (and now nearly droop to the roof without rain).
4. There are bamboo leaves all clogged under our solar panels so we will need to employ someone to come in and clear them.
5. Our office downstairs is continually scattered with bamboo leaves as they bank up against the door and when it is opened, they blow into the room. (These cannot just be vacuumed as they clog the vacuum cleaner).
6. Our screen doors continually have bamboo leaves stuck in them as well.
7. The Aircon box at the back of our house also has leaves caught in the air holes.
8. We paid to have bark in our garden beds on that side of the yard, but it only lasts a couple of weeks before it is app. 4ins deep with bamboo leaves.
9. Roots from the bamboo are very invasive and are spreading further and further into our yard and garden beds.
10. Pandanus fruit drops into our yard and it not only stinks but the fruit is like standing on rocks so we have to rake it all up before mowing and put up with the smell which also bring the bats.

History of the matter

4. [4]
   There have been issues between the neighbours and the tree-keeper in relation to the bamboo since ‘one-two years’ prior to 24 May 2020.^[2]
5. [5]
   Since the application was filed on 4 August 2020, there have been Directions given in 2020, 2021, 2022, and 2023, in relation to progress of the matter, including as to a Compulsory Conference, and as to the appointment of a Tree Assessor,
6. [6]
   A Compulsory Conference was held before a Member of the Tribunal on 27 July 2021. The neighbours say that there was an agreement reached at that time as follows:^[3] 

I attended a teleconference with Geoff Breen and a member of QCAT back on 27 July 2021 which came to an agreement that the main issue for us was the control of the height of the bamboo growing along the fence line of both properties. I understand at the time that this solved our issue.

The agreement was that the bamboo was to be kept trimmed to a height of no more than 1 metre above the fence line.

As you can see by my photos, this has not been adhered to and we now request some form of Directions in writing for this to happen now and be kept trimmed to that height.

7. [7]
   Further directions were given on 20 March 2022 directing that the neighbours advise whether the tree dispute had been resolved. It does not appear that advice was given at that stage that the matter had been resolved.
8. [8]
   The matter then came on for a further Directions Hearing on 1 February 2023, at which time the Tribunal was obviously satisfied that the matter had not been resolved, and Directions were given for the appointment of a Tree Assessor.
9. [9]
   A Tree Assessment Report was filed on 10 July 2023.
10. [10]
    Directions were then given on 30 August 2023 for the filing of submissions by the parties, and for the hearing of the matter On the Papers. Submissions were subsequently filed by the parties.
11. [11]
    These are the Tribunal’s Reasons and Decision in the matter.

The Tree Assessment Report

12. [12]
    A Tree Assessment Report dated 7 July 2023 was filed by the tree assessor, Mr Cameron James, on 10 July 2023.
13. [13]
    The assessor conducted a site visit on 3 June 2023, and met with both the neighbours and the tree-keeper.^[4] 
14. [14]
    The assessor described the vegetation as follows:^[5]

The application relates to nine bamboo clumps growing on the respondent’s land in a screening row along the common boundary between 52 and 54 Stevenson Street. Eight of the clumps are known as Weaver’s bamboo and the other clump is a small attractive variety known as the Malay dwarf variegated bamboo.

The bamboo plants in question were planted about 2 to 2.5 metres apart in a row about 600 or 700mm in from the boundary and parallel with the fence between 52 and 54 Stevenson Street. This would have been an effective layout for a batch of screening vegetation. Weaver’s bamboo grows to about 6m tall and as the number of stems per clump increases incrementally each year, the row would develop as a continuous thicket after a few years.

The single plant of the Malay dwarf variegated bamboo is the third clump in from the front of the property and appears to be a more recent addition to the screening row. The Malay dwarf gross to mature height of 3m to 4m tall and with its variegated leaf is the more attractive variety and is also easier to maintain.

Most of the bamboo clumps inspected had been pruned back in the months prior to the tree assessor visit. The first clump starting at the footpath was cut down to stump and treated with herbicide and the four clumps of the further end were also cut down and likewise treated. The remaining clumps were pruned down to about 2.5 metres. This is substantially different to the dimensions of the bamboo growth indicated in the application. Mature bamboo has a capacity to grow from shoot to full length in three months so I concluded I need to continue the tree assessment process, because even if the ‘tree ‘wasn’t causing interference at that time, the ‘tree ‘could potentially be causing interference in the next nine or 12 months.

15. [15]
    The assessor described each of the clumps of bamboo, and their health, as follows:^[6]

    1. B1 – Slender Weavers bamboo – 600mm high – presumed healthy
    2. B2 – Slender Weavers bamboo – 3.5m high – presumed healthy
    3. B3 – Malay dwarf variegated bamboo – 300mm high – presumed healthy
    4. B4 – Slender Weavers bamboo – 2.2m high – presumed healthy
    5. B5 – Slender Weavers bamboo – 2.2m high – presumed healthy
    6. B6 – Slender Weavers bamboo – presumed as dead
    7. B7 – Slender Weavers bamboo – 700mm high – presumed as dead
    8. B8 – Slender Weavers bamboo – 600mm high – presumed as dead
    9. B9 – Slender Weavers bamboo – 600mm high – presumed as dead
16. [16]
    The assessor observed that the clumps that were presumed healthy were mature bamboo clumps, so have the capacity to rapidly grow fresh stems and extend back to mature height within several months with good soil moisture and other seasonal conditions that one would expect in coastal Central Queensland.^[7]
17. [17]
    As to the clumps that were presumed as dead, he noted that, according to the tree-keeper, each clump was cut down and the stump had been treated.^[8] 
18. [18]
    The assessor considered that the bamboo had caused, was causing or likely to cause within the next 12 months, substantial interference with the neighbours’ use and enjoyment of the land as follows:^[9]

A. Bamboo plants touching building etc. Prior to the recent heavy pruning of the eight Weaver’s slender bamboo plants growing parallel to the common boundary the bamboo extending across the boundary would have nearly touched the house or as stated in the application contacted the antenna on roof and other parts of the building. This is within reach of the 8m maximum growth for bamboo culms described by several major bamboo retailers and wholesalers. The eight plants were mature and 6-8m culm length is therefore expected for the good growing conditions present at the site.

B. Leaf fall from the sheer mass of eight mature bamboo plants growing within 1.0m of the boundary with overhanging branches would produce a large volume of falling leaf. I have no problem accepting the description of bamboo leaf nuisance recorded in the application. The prevailing south-easterly wind direction at Barlows Hill assists carrying a little more leaf fall across the common boundary than gravity alone would produce.

19. [19]
    The assessor considered that in light of the anticipated further growth of the healthy bamboo clumps, and the likely interference they would cause to the neighbours’ use and enjoyment of their land, regular maintenance should be conducted as follows:^[10]

1. Any bamboo clumps on the respondent’s land near the common boundary should be maintained regularly by the respondent to limit their height to a maximum height of 3.5 metres above ground level.

This allows for any privacy considerations desired on behalf of the respondent and at the same time preventing the excessive bamboo growth from being able to reach and thence lean well over the common boundary. (Mature bamboo clumps can grow fresh culms 6-8m tall within three months).

2. The bamboo clumps shall be kept at least 300mm clear of the boundary fence so as to prevent the clump tussock from expanding and pushing on the boundary fence.

20. [20]
    The assessor made the following recommendations as to appropriate orders in relation to the bamboo as follows:^[11]

    1. All bamboo plants growing on the respondent’s land near the common boundary should be pruned or otherwise maintained at a maximum height of 3.5 metres.
    2. Pruning work on living trees is to be conducted by a person with a minimum AQF level 3 Certificate in Arboriculture or international equivalent (ISA Certified Arborist or UK qualified Arborist). In the case of a dead tree, a person with a felling ticket for chainsaw use would be suitably qualified.
    3. The pruning work should be performed to conform to AS 4373-2007 or a corresponding horticultural standard or other horticultural industry best practice.

Submissions as to the Tree Assessment Report

21. [21]
    The tree-keeper filed a comprehensive response to the Tree Assessment Report. He described it as ‘deficient in its details’ and ‘not a balanced report, regardless of any of his recommendations’.^[12] 
22. [22]
    The tree-keeper did not accept the qualifications of the assessor, and did not accept the assessor’s interpretation of the available information.
23. [23]
    The tree-keeper was critical that the assessor had not made written notes during his visit; did not ask what type or composition of chemicals had been used on the bamboo; and did not consult with the tree-keeper about any recommendations that he may have about the future management of his bamboo.
24. [24]
    The tree-keeper was also critical of the detail in the Report, in that it did not establish how the assessor had concluded that the clumps were cut down in the weeks before the inspection, did not include photos of each individual clump, or make mention of the trench cut with a chainsaw by him and a friend over a considerable period of time between the larger clumps of Slender Weavers bamboo and the fence.
25. [25]
    Many of the issues which the tree-keeper raises in his submissions as to the assessment report are not fundamental issues which are relevant to be considered as to whether a Tree Order should be made.
26. [26]
    The tree-keeper appeared to express a view that there was no need for any Orders to be made:^[13] 

All of the action I have taken has been without any directions from the Tribunal.

I have removed several palms and trees that were never mentioned in the Application.

My actions have gone beyond what was requested, within reason, in the original Application.

That has never been acknowledged by either the Applicant or the Tribunal.

27. [27]
    The neighbours responded to the submissions of the tree-keeper with what they described as ‘utter disbelief’ that the tree-keeper could write 12 pages of response regarding the arborist’s visit, and submitted as to the history of the matter and the appropriate orders as follows:^[14]

Initially, I made a personal, peaceful approach by visiting him at his house on 20 August 2019 (over 4 years ago) and the problem could have been solved simply by trimming the many bamboo clumps which were well in excess of 6m high along the border and/or adversely affecting our property with debris in our driveway/carport and blockages in our gutters. Approx 90% of the winds here on the coast (we are also situated on a hill) blow from the south-east directly into our place. This was a simple request which has just blown out of proportion.

We can appreciate his remarks regarding privacy through the bedroom window (even though his window is not clear glass). The other trees he has there at present also give privacy to that window.

A 3.5m height from the ground would prevent the bamboo drooping into our property and growing to a height where heavy debris drops into our property. The condition of the bamboo is fine at present but needs to be kept at that level in the future.

Discussion

28. [28]
    A ‘tree’ is defined in section 45(1)(b) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) as meaning any plant resembling a tree in form and size, and the example is given of ‘bamboo’.
29. [29]
    Section 46(a)(ii) provides that land is affected by a tree if the tree has caused, is causing, or is likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
30. [30]
    Section 66(2)(b)(ii) provides that the Tribunal may make the Orders it considers appropriate in relation to a tree affecting the neighbour’s land to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
31. [31]
    It is well established that the mere dropping of leaf litter by trees in itself is not sufficient to found the making of Orders. In Finch v Grahle the Tribunal held that:^[15]

Generally speaking, leaf litter will not, of itself, be sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of land.

32. [32]
    However, where the amount or effect of the leaf litter is unreasonable due to the quantity or nature of the litter, it may constitute a substantial, ongoing and unreasonable interference.
33. [33]
    The tree assessor expressed the view that the sheer mass of eight mature bamboo plants growing within 1.0m of the boundary with overhanging branches would produce a large volume of falling leaf, and said that he had no problem accepting the description of bamboo leaf nuisance recorded in the application.
34. [34]
    I accept the views of the tree assessor as to the volume and effect of leaf litter that could be produced by the bamboo.
35. [35]
    I accept the contentions of the neighbours that the bamboo did, at the time of the application, cause interference as alleged, and consider that such interference would constitute substantial, ongoing and unreasonable interference.
36. [36]
    The height, condition, and number of individual bamboo plants has varied over the past five years of the life of this dispute. I accept that at times, when the bamboo has been heavily pruned by the tree-keeper, as appears to be the situation at the time of the on-site inspection for the tree assessment report, no substantial, ongoing and unreasonable interference would occur.
37. [37]
    However, at times when the bamboo is not being regularly and appropriately maintained, I consider a substantial, ongoing and unreasonable interference with the neighbours’ enjoyment of their land would occur.
38. [38]
    The assessor expressed the view that the bamboo had caused, was causing, or was likely to cause within the next 12 months, substantial interference with the neighbours’ use and enjoyment of the land. I accept that would be the case, if no appropriate pruning was done in that 12 months.
39. [39]
    A consideration in this matter is that the tree-keeper has been varied in the maintenance of the bamboo. The submissions in this matter were made about 12 months ago, and I do not have current evidence as to the state of the bamboo.
40. [40]
    However, this matter has been very protracted, and I do not consider it is in the interests of the parties, or in accordance with the objects of the Tribunal to bring matters to resolution, to seek further evidence as to the current condition of the bamboo.
41. [41]
    To some extent, the current condition is not of high relevance, as it is clear that the bamboo has at times not been properly maintained, and that it is quick-growing in the conditions of the Central Queensland coast.
42. [42]
    I do not accept the submission of the tree-keeper that no Orders should be made as he looks after matters himself. The tree-keeper has not made any clear declaration of his intention in relation to preservation or maintenance of the bamboo.
43. [43]
    I consider that the neighbours are entitled to the comfort of Orders being in place, rather than having to depend upon the unstated actions of the tree-keeper, particularly having regard to the obvious breakdown in relations between them.
44. [44]
    Further, under section 78(1) of the Act, an order lasts for 10 years after the day on which the order was made unless the order expressly provides otherwise, and the order ‘runs with the land’ as the order is recorded in the Register maintained by the Tribunal under section 79(1) and the land then becomes ‘land affected by an application or order’ under section 82, and the Orders are binding upon any subsequent purchaser of the land.
45. [45]
    Whilst the tree-keeper might maintain the bamboo in a satisfactory condition in the absence of a Tribunal Order, the situation remains that any bamboo on the land would need to be similarly maintained by any subsequent purchaser, and the neighbours would have no assurance that a subsequent purchaser would have the expertise or intent of the tree-keeper and maintain the bamboo appropriately, and could face the prospect of having to bring fresh proceedings against the subsequent purchaser. I do not consider that such an outcome is consistent with the objectives of the Act or the Tribunal to bring matters to finality.
46. [46]
    If the tree-keeper does intend to maintain the bamboo in accordance with a minimum height of 3.5 metres, or does remove some or all of the bamboo plants, then no detriment will be caused to him by the making of Orders to that effect.
47. [47]
    I note that the neighbours concur with the recommendations of the tree assessor as to the maximum height at which the bamboo should be maintained of 3.5 metres.
48. [48]
    I therefore consider that it is appropriate that Orders should be made under Section 66 of the Act.
49. [49]
    I accept the findings of the tree assessor as to the appropriate provisions that should be encompassed in the Orders, and make Orders consistent with the recommendations of the tree assessor.
50. [50]
    I make Orders as follows:

1. The owner of 52 Stevenson St, Barlows Hill, is to regularly prune or otherwise maintain all bamboo plants growing on the land near the common boundary with 54 Stevenson St, Barlows Hill, to a maximum height of 3.5 metres above ground level.
2. The bamboo clumps shall be kept at least 300mm clear of the boundary fence.
3. Pruning work on the bamboo plants is to be conducted by a person with a minimum AQF level 3 Certificate in Arboriculture or international equivalent (ISA Certified Arborist or UK qualified Arborist). In the case of a dead plant, a person with a felling ticket for chainsaw use would be suitably qualified.
4. The pruning work is to be performed to conform to AS 4373-2007 or a corresponding horticultural standard or other horticultural industry best practice.