Brett v Cook[2024] QCAT 418

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   Seventeen tall trees sit alongside a common boundary between the parties’ respective properties. They are on Mr Cook’s land. They create both a visual and sound barrier between the properties.
2. [2]
   Mr Brett complains that the trees are a safety risk and that they interfere with the use and enjoyment of his land. Mr Cook asserts that the trees are not dangerous nor in any way adversely affecting Mr Brett’s land or his use of it.
3. [3]
   The opinion of the independent tree assessor appointed by this Tribunal, Mr Cameron James, supports Mr Brett’s case at least in part. Mr James disputes Mr Cook’s assertion that the trees are not a danger. He opines that some of the trees are at risk of failure in extreme weather conditions, and that the trees are interfering with the use of Mr Brett’s land at least in terms of the obstruction of sunlight. He recommends that the trees be substantially reduced in height, maintained at a reduced height, and remedial work be carried out to some of the trees to minimize the risk of future failure which could cause damage to property and/or injury to persons.
4. [4]
   I accepted that report and the opinions expressed by Mr James therein as being correct. Thus, for the reasons I have given herein, orders were made in terms of work to be performed on the trees with corresponding orders for the implementation of same.

Relevant Facts and Circumstances

5. [5]
   The parties are immediate neighbours. They each reside in their houses on their respective land. Mr Cook’s land has seventeen (17) trees growing along the common boundary, approximately 30 cm from the fence line. As at mid-July 2023, when an inspection of those trees was undertaken by Mr Cameron James, an independent tree assessor appointed by this Tribunal, they were identified by Mr James as Indian Mast trees all between 7 to 9 m in height.
6. [6]
   Mr Brett asserts that, during storms and high winds, branches from the trees fall onto his land such that they pose a safety risk to persons and property, and should the trees fall they could cause damage to his property. He says that in part the trees are already pushing on the common boundary fence causing it to lean into his yard. He also says that he must constantly clean up leaf litter, grass will not grow where the trees shade part of his yard, that the trees block sunlight to his kitchen window, that they affect the operation of his solar panels because they block the sunlight, and that they adversely affect the operation of his internet and phone service.
7. [7]
   On 2 August 2022 Mr Brett commenced this proceeding by filing an Application for a Tree Dispute wherein he expresses those complaints, save only for the last one about his internet and phone it being raised in subsequent communications to the Tribunal.^[1] Therein he also describes his efforts to have discussed his concerns with Mr Cook in an effort to find a resolution. He says that Mr Cook refused to engage with him in discussion thus the Application being made.
8. [8]
   He seeks orders of this Tribunal that the trees be removed, alternatively that branches be removed / pruned, alternatively that the trees be cut down to a specified height and away from the fence, and that Mr Cook pays the costs of that work.
9. [9]
   On my reading of the file as it has been sent to me it is apparent that there was either a delay or confusion in the service of the application on Mr Cook.^[2]  On 1 March 2023 directions were given by this Tribunal in terms of procedural matters, in part requiring service of the application on Mr Cook, and in part dealing with the appointment of a tree assessor / arborist to undertake an assessment of the trees and provide a report on same.
10. [10]
    On 20 March 2023, Mr Cook filed his response to the application. It was cast in language which was entirely unnecessarily very satirical,^[3] arguing against the complaints and the relief sought by Mr Brett. He asserted that the trees are not dangerous nor in any way adversely affecting Mr Brett.
11. [11]
    Notwithstanding that, looking past his satire, he made one meaningful statement in his response, such being “Whether the subject boundary trees are a danger is up to the arborist to so determine …”. Given his response was filed after the Direction to which I just referred was given, I infer that statement was in regard to such person once ultimately appointed.
12. [12]
    On 12 June 2023, directions were given by this Tribunal for the appointment of that tree assessor and for the provision of a report to the Tribunal on the issues raised in Mr Brett’s application.
13. [13]
    On 10 July 2023, the tree assessor, Mr Cameron James, carried out his inspection and assessment of the trees.
14. [14]
    On 4 August 2023, Mr James filed his report in this proceeding. His concluding opinion was that the trees need not be removed providing certain remedial work is attended to, namely the reduction of their height and the maintenance of same, some pruning of some of the trees is performed to remove future potential failure points, and all branches overhanging the common boundary be removed clear to the sky.
15. [15]
    On 25 October 2023, a direction was given by this Tribunal that unless either party requested an oral hearing by a specified date, the application would be determined on-the-papers. No such request was made.
16. [16]
    It is against this background that this proceeding came before me for determination on-the-papers.

The Issues

17. [17]
    The issues in this proceeding fall to be decided under Chapter 3 Part 5 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).
18. [18]
    It is not in issue that an Indian Mast tree is a ‘tree’ for the purposes of that Act, and that there is more than one of them to be dealt with. It is common ground that the parties’ respective properties adjoin each other, that the trees are situated on Mr Cook’s land and as such he is the tree-keeper and so is responsible for the proper care and maintenance of the trees, and that Mr Brett is a neighbour relative to Mr Cook as the tree-keeper, all being terms used in the ND Act. As such no issues arise for determination in regard thereto.
19. [19]
    The sole issue is whether Mr Brett’s land was ‘affected’ by the trees in the manner provided for under s 46(a) of the ND Act, and if so what is the relief Mr Brett is entitled to.

Relevant Law

20. [20]
    For ease of reference, extracted here are the relevant provisions of the ND Act:

Part 1Introduction

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. …;

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.

44 Action may be taken in relation to more than 1 tree

1. To remove any doubt, it is declared that, if this chapter provides for doing a thing in relation to a tree, the thing may be done in relation to 2 or more trees.

2. …

Part 2Interpretation

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. 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. …

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. …; and

3. destroying the tree.

51Meaning 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.

Part 3Responsibilities, liabilities and rights

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. ….

Part 4Removal of overhanging branches

57Notice for particular overhanging branches

1. This section applies in relation to each of the overhanging branches—

1. only if the branch extends to a point over the neighbour’s land that is at least 50cm from the common boundary; and

2. only to the extent the branch is 2.5m or less above the ground.

2. The neighbour may give a written notice to the tree-keeper asking the tree-keeper to cut and remove the overhanging branches.

3. The notice must—

3. (a)
   …

Part 5QCAT orders to resolve other issues about trees

61Jurisdiction

QCAT 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 to QCAT, land is affected by the tree.

…

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. …;

3. to the extent the issue relates to the land being affected because branches from the tree overhang the land –

1. the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and

2. the neighbour can not properly resolve the issue using the process under part 4;

4. the neighbour has given copies of the application under section 63, other than to the extent the requirement has been waived.

66  Orders QCAT may make

1. Division 4 states the mattes for QCAT’s consideration in deciding an application for an order under this section.

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.

3. However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if –

1. the tree rises at least 2.5 m above the ground; and

2. the obstruction is –

1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or

2. …

4. …

5. Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

1. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

…

4. authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;

5. require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;

6. …;

7. require a report by an appropriately qualified arborist.

Division 4 Matters for QCAT consideration

70 Application of div 4

1. This division states matters for QCAT to consider in deciding an application for an order under section 66.

2. This division does not limit the matters QCAT may consider.

71Safety

The primary consideration is the safety of any person.

72Removal or destruction of living tree to be avoided

A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.

73 General matters to consider

1. QCAT must consider the following matters—

1. the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;

…

7. any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;

…

1. any risks associated with the tree in the event of a cyclone or other extreme weather event;

…

10. the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;

…

74 Other matters to consider if serious injury or damage alleged

1. If the neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, QCAT may consider –

1. …

2. any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.

2. …

75 Other matters to consider if unreasonable interference alleged

If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—

…

2. any steps taken by the tree-keeper of the neighbour to prevent or minimize the interference;

4. whether the tree existed before the neighbour acquired the land; and

…

Discussion on the Contest between the Parties

Threshold issues

21. [21]
    I am satisfied that the requirement of s 65(a) of the ND Act has been met. As I noted it earlier herein, Mr Brett explained in his application the efforts he had made to at the very least discuss his concerns with Mr Cook, which I infer was in an attempt to reach an agreement with him about the trees. As he described it therein those efforts were met with Mr Cook just walking away. Given the manner in which Mr Cook responded to the application, and his earlier communications with this Tribunal’s Registry, all being such as I referred to in paragraph [10] herein which I interpreted as demonstrating a belligerent attitude having been adopted by Mr Cook, I accept at face value that as being what occurred. As such it could not be said that Mr Brett had not made a reasonable effort to reach an agreement with Mr Cook.
22. [22]
    I am also satisfied that the requirements of s 65(d) of the ND Act have been met. On 1 March 2023, this Tribunal directed Mr Brett to serve a copy of his application on the relevant local government authority, and the Tribunal file records that as having occurred on 23 March 2023.
23. [23]
    As to the provisions of s 65(c) of the ND Act, I raise it here even though Mr Brett does not raise the issue of overhanging branches in his application. He is entirely silent on it, not answering the relevant question yes or no. However notwithstanding the absence of that, given what is raised by the tree assessor it is readily apparent to me that overhanging branches were at the time of his inspection, or very soon thereafter would have been, an issue. His reports records most of the trees having overhanging branches although at that time some under the requisite 50cm as provided for under s 65(1)(c)(i) of the Act, but in some instances exceeding that. As such, and given what I said earlier herein about Mr Brett’s efforts to have a discussion with Mr Cook, I readily inferred that even if Mr Brett had raised the issue he would not have been able to use the process under Chapter 3 Part 4 of the ND Act to resolve the issue of overhanging branches, and so the discretion afforded a neighbour under s 57(2) of the Act need not have been exercised by Mr Brett. Thus I could and did readily reach the level of satisfaction required under s 65(c) of the Act.
24. [24]
    For these reasons there is no statutory prohibition to Mr Brett pursuing the relief he seeks in this proceeding.

Mr Brett’s complaint & Mr Cook’s response to it

25. [25]
    In the section of these reasons entitled ‘Relevant Facts and Circumstances’ I have identified the essence of Mr Brett’s complaint and Mr Cook’s response to it. I need not repeat that here nor expand on it in any detail. It suffices to simply observe that these facts and circumstances show the extent to which Mr Brett has been affected by these trees, and will continued to be affected by them should substantial remedial action not be taken. The independent tree assessor’s report shows that to be the case. Moreover, as Mr Cook stated in his response, it was a matter for the arborist to determine whether the trees are a danger, and from that statement I infer he readily defers to that determination. In that regard Mr James’s report effectively makes Mr Brett’s case as being one to be concluded in the affirmative. It dispels entirely the arguments raised within Mr Cook’s response, to the extent such could be found amongst the satire including sarcasm.
26. [26]
    The only issue that could not be resolved on Mr Brett’s material is the nature and extent of that remedial action. However Mr Cameron’s report addressed that issue.
27. [27]
    At paragraph [14] herein, I briefly referred to the content of that report. In my opinion that sums up the circumstances with precision. However given the matters raised under s 70 to s 75 of the ND Act for this Tribunal’s consideration, to which I return later in these reasons, for completeness I note the following relevant and key aspects of that report:

    1. The seventeen (17) trees were all described as a ‘tall young early mature tree’, at the time of the inspection from 7 to 9 m in height, but which would grow to about 20 m in height;
    2. Six (6) of the trees overhang the boundary by more than 50 cm;
    3. Eight (8) of the trees are reported as being subject to a potential failure at what is described as a ‘codominant union’, which I understand to be a point within the structure of the tree where there is a branching out into effectively two trunks, such which if the tree fails at that point it could impact, in some instances, Mr Brett’s property causing damage;
    4. It is possible that such a failure could cause an injury to a person in Mr Brett’s yard, although Mr James considers such to be unlikely in the circumstance that the failure would more likely than not occur during adverse weather conditions, being when such a person would most likely not be in the yard;^[4]
    5. In Mr James’ opinion, the risk of potential failure would increase over time as the numerous defective co-dominant unions deteriorate and the trees get taller, although he opines that would be beyond the 12 month timeframe provided for in the ND Act provisions;
    6. There is no evidence of the trees adversely affecting the fence structure, although he observed one of the trees growing close to one fence post and as such it is possible that the root plate of the tree could be pushing on the footing to the post;
    7. The leaf fall would not meet the threshold of being a substantial interference because the trees are evergreen as opposed to deciduous and thus lose leaves slowly and continuously during the year;
    8. There was no evidence of root invasion;
    9. There was obstruction of sunlight to the ground floor windows to the kitchen of Mr Brett’s house;
    10. The row of trees does provide a visual barrier between the properties however it adds little extra visual privacy beyond that already in existence from the timber fence and permanent metal shutters on the upstairs window on Mr Cook’s house and the tall shed to the rear of Mr Cook’s house;^[5]
    11. The row of trees does assist with muting noise transmission from Mr Brett’s house to Mr Cook’s house;
    12. If the height of the trees were reduced, it would alleviate the issue of blocking the sunlight, and by virtue of reducing the mass of the tree it would also reduce the volume of leaf fall. This means the trees do not need to be destroyed but rather could be retained without significant continued impact on Mr Brett’s land; however if they are to be retained then remedial action is required in terms of the bifurcated codominant unions to avoid them becoming potential failure points, and at the same time the overhanging branches could be cut back to the boundary line.
28. [28]
    This report carries substantial weight. Not only is it concise in its content, but it also addresses the issues succinctly and directly. I am persuaded by it. I accept it as being the answer to the dilemma Mr Brett faces and has been endeavouring to have Mr Cook recognize, accept, and act on.

The Division 4 Matters

29. [29]
    However notwithstanding my acceptance of that report, it does not immediately follow that I should make orders consistent with it. There remain matters for me to consider in deciding an application for an order under s 66 of the ND Act. These are covered as relevant to this proceeding by s 71 to s 75 as I have extracted those provisions earlier herein, and to which I now return as I indicated earlier I would.
30. [30]
    Having read and considered the parties’ respective material as filed, and Mr James’s report, in particular those parts of it to which I have already referred, I make these observations relevant to those provisions and the issues in this proceeding:

    1. In terms of s 71, there is a considerable risk of safety and significant injury to persons or damage to property should remedial action not be taken in respect of the trees;
    2. In terms of s 72, Mr Brett’s complaints can be addressed without removal of the trees;
    3. In terms of s 73(1)(a), the trees are not only very close to the common boundary, but from what I observe from the photographs that both parties have provided, they are also close to structures on Mr Brett’s land, including his house, and as reported by Mr James some trees are at risk of failure which if occurred would most likely impact on some of those structures;
    4. In terms of s 73(1)(g), the trees do contribute to the amenity of Mr Cook’s land including relative to privacy and noise transmission;
    5. In terms of s 73(1)(i), the risk of failure of at least some of the trees in their current condition would increase in an extreme weather event;
    6. In terms of s 73(1)(j), the impact of pruning the trees and reducing their height would be to alleviate the risks of failure and the interference with Mr Brett’s land.
31. [31]
    What will be observed from these observations is that one of the factors for consideration favour Mr Cook. The trees provide him with amenity. However, notwithstanding that to be so, as per s 71 of the ND Act the primary consideration is the safety of any person. Whilst Mr James opines that the risk of failure of the trees is raised in extreme weather events but at which time it is doubtful a person would be in the vicinity of the trees, that is not sufficient to rule out the possibility that a person could be there and so their safety be at risk. Thus, to the extent any of the general matters under s 73 favour Mr Cook as the tree-keeper, and thus could be viewed as going against taking any form of remedial action on the trees, such must yield to the paramount provision of s 71.
32. [32]
    In addition, in terms of 74(1) and s 75(b), from my reading of the material filed there is an apparent absence of Mr Cook having taken any steps to not only recognise the risks of injury, damage, or interference, caused by the trees but moreover to thus take any steps to prevent or even minimize same. Once again anything under s 73 which favours Mr Cook as the tree-keeper must yield to these provisions.
33. [33]
    Finally, in terms of s 75(d), whilst Mr Brett acknowledges that the trees existed before he acquired his land, in this instance I do not consider that to be a relevant factor. This is so notwithstanding what I have said in other matters where complaints were made about trees that were existing before the complaining neighbour acquired the relevant land.^[6] In those matters the complaint was in terms of the obstruction of a view. Here the complaint is one primarily of safety and of the blocking of sunlight. Such are very different circumstances to those involving solely the obstruction of a view.
34. [34]
    For these reasons, I did not see any reason not to adopt the recommendations of Mr James in terms of the work to be performed to the trees so as to alleviate the detrimental effect on Mr Brett’s land.

Conclusion

35. [35]
    On reading and considering the material as filed by the parties in this proceeding, and in particular that identified and expressed by the Mr James as the independent tree assessor appointed by this Tribunal, I was satisfied that Mr Brett had a valid complaint. I was also satisfied it was one being ignored by Mr Cook.
36. [36]
    The trees on Mr Cook’s land are a risk to the safety of persons and/or property if left as is, and also cause a substantial, ongoing, and unreasonable interference with the use and enjoyment of Mr Brett’s land. But notwithstanding that, it is not necessary to destroy the trees. There is another solution that can satisfactorily resolve the issues Mr Brett complains of, such which retains to some degree the amenity the trees afford Mr Cook. That solution, as recommended by Mr James, is to:

    1. Prune the trees down to a height of 4.5 m and thereafter maintain them under 6.0 m;
    2. Prune out each and every bifurcated codominant stem union;
    3. Prune all branches overhanging the common boundary back to the boundary line and clear to the sky; and
    4. In all instances ensure the work is carried out by a person with a minimum AQF Level 3 Certificate in Arboriculture or international equivalent, and such to be done to conform to AS 4373-2007 or a corresponding horticultural standard.
37. [37]
    Accordingly, I made orders to that effect with corresponding orders made in terms of those provided for under s 65(5) of the ND Act to facilitate the implementation of same.
38. [38]
    Mr Brett did not make any application to this Tribunal in terms of his costs of the application, or the cost he has incurred in compliance with this Tribunal’s directions relevant to the engagement of Mr James as the tree assessor. As such no orders were made in that regard.