Shapter v J Turn Ltd[2024] QCAT 438

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

BACKGROUND

1. [1]
   The Applicant, Charlotte Shapter (‘Shapter’), is the owner of a house property situated at 3 Mary Street, Hivesville. The house property has a real property description of lot 14 on registered plan 41258 and has an area of approximately 1,000 m². Shapter is noted as the sole registered proprietor of the land on the search of the title attached to the original application filed in the Tribunal on 24 April 2020. During the hearings Shapter was accompanied by Ross Caulfield (‘Caulfield’) who was introduced as Shapter’s partner and the material provided by Shapter notes Caulfield as an Applicant. At the hearings both Shapter and Caulfield gave evidence and made submissions under oath.
2. [2]
   Hivesville is a small rural town in the South Burnett district of Queensland. The area could be described as semi-rural. There is mains power connected near Shapter’s house, but Shapter’s house is off-grid and relies on power from 18 solar panels situated on the roof of the house. When there is not sufficient electricity generated from the solar panels situated on the roof of her house then Shapter must rely on electricity generated from a diesel generator situated on the property.
3. [3]
   The Respondent in these proceedings is a company, J Turn Ltd (‘Turn Ltd’). The Respondent was represented by Bruce McLeod (‘McLeod’) who advised the Tribunal that he had the authority of the company to represent the company in these proceedings. During the proceedings McLeod gave evidence under oath on behalf of Turn Ltd.
4. [4]
   Turn Ltd is the registered proprietor of a property which is situated at 1 Mary Street, Hivesville. This property is registered as lot 2 on registered plan 203076 and has an area of 2.435 hectares. This property is currently vacant land. McLeod gave evidence that he and his family intend to erect a house on the property.
5. [5]
   The properties at 1 and 3 Mary Street adjoin each other on one boundary. The disputation in these proceedings relate to four trees growing on Turn Ltd’s property. Therefore, Turn Ltd is the tree-keeper of the four trees under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’).
6. [6]
   The hearing of this matter took place on 4 March 2024. The application being heard was NDR058-20 which was filed in the Tribunal on 24 April 2020. The parties appeared in person. In this hearing two trees were at the centre of the dispute. There are several issues in dispute, and I will outline these issues later. However, the main issue in dispute is that a large tree on Turn Ltd’s property is causing shading of solar panels erected on the roof of Shapter’s house in the afternoon during the winter months. This in turn requires Shapter to manage the use of electricity and if necessary to use her generator to generate electricity for the house during the winter months. During the hearing I suggested that solar panel experts for both parties should undertake an inspection of Shapter’s property to ascertain if there was a cost-effective solution to erecting new solar panels or moving the existing panels to resolve the issue. Also, Shapter mentioned two further trees situated on Turn Ltd’s property which were causing concerns for Shapter.
7. [7]
   Shapter made another application filed in the Tribunal 12 April 2024 under the provisions of the NDR Act regarding these trees. It is file NDR057-24. I made orders that NDR058-20 and NDR057-24 should be heard together and that the arborists for both parties should prepare a joint report for Trees 5 and 6 for the Tribunal. The further hearing of both applications was heard on 9 July 2024.

LEGISLATION

8. [8]
   The legislation that is relevant and should be applied in considering tree disputes between neighbours is the NDR Act. The provisions of the NDR Act that apply to this dispute are ss 46, 52, 66 & 73 of the NDR Act. For the consideration of the parties I set out these provisions in full.

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.  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.

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.  This section does not create a civil cause of action based on a breach of a tree-keeper’s responsibilities.

Note—

This section is intended to help a tree-keeper and neighbours resolve any issues about a tree without a dispute arising. However, this section does not create a separate cause of action. This chapter provides ways of dealing with some issues that fall within a tree-keeper’s responsibilities under this section.

66 Orders QCAT may make

1.  Division 4 states the matters 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 2.5m 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.  severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

4.  Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.

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;

Examples—

•an order that requires the removal of the tree within 28 days

•an order that requires particular maintenance work on the tree during a particular season every year

•an order that requires particular work to maintain the tree at a particular height, width or shape

2.  require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;

3.  require a person to apply for a consent or other authorisation from a government authority in relation to the tree;

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.  require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;

7.  require a report by an appropriately qualified arborist.

6.  In this section—

window includes a glass door, window forming part of a door, skylight or other similar thing.

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;

2.  whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;

3.  whether the tree has any historical, cultural, social or scientific value;

4.  any contribution the tree makes to the local ecosystem and to biodiversity;

5.  any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

6.  any contribution the tree makes to public amenity;

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;

8.  any impact the tree has on soil stability, the water table or other natural features of the land or locality;

9.  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;

11.  the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.

2.  For subsection (1)(c), the circumstances where a tree has historical, cultural, social or scientific value include where the tree—

1.  is, or is part of, Aboriginal cultural heritage under the Aboriginal Cultural Heritage Act 2003; or

2.  is, or is part of, Torres Strait Islander cultural heritage under the Torres Strait Islander Cultural Heritage Act 2003; or

3.  is, or is situated in, a Queensland heritage place under the Queensland Heritage Act 1992.

3.  For this Act, no financial value or carbon trading value may be placed on a tree.

9. [9]
   In these proceedings Turn Ltd is the tree-keeper. The responsibilities of the tree-keeper are set out in s 52 of the NDR Act. These responsibilities include:

   1. Cutting and removing any overhanging branches that overhang a neighbour’s land.
   2. Ensuring that the tree does not cause serious injury to a person, serious damage to a person’s land or any property on a person’s land or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
10. [10]
    Pursuant to s 46 of the Act land is affected by a tree at a particular time if:

    1. Branches of the tree overhang the land; or
    2. The tree has caused, is causing, or likely within the next 12 months to cause serious injury to person on the land, 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; and
    3. The tree adjoins the land on which the tree is situated.

EVIDENCE

11. [11]
    The Shapter house was erected in 2019. She complains about four trees. The parties refer to the trees as 1, 2, 5 and 6. These trees are situated on Turn Ltd’s land which adjoins Shapter’s land. Therefore s 46(iii) of the NDR Act applies.
12. [12]
    Tree 1 is a large blue gum which is approximately 24 metres in height and is 17 metres from Shapter’s house. Tree 2 is a dead iron bark which is approximately 20 metres in height and is 19 metres from the common boundary. Both trees are marked on the sketch filed in the Tribunal by Shapter on 24 April 2023.
13. [13]
    Trees 5 and 6 are approximately 2.5 metres from the common boundary and are the subject of a joint arborist’s report filed in the Tribunal on 19 June 2024. This report was prepared by Ivan Douglas Mellor (‘Mellor’) and Jonathan Cecil Cowen (‘Cowen’). See pages 10, 11 and 12 of this report. The trees are also illustrated on page 5 of the material filed in the Tribunal by Shapter on 12 February 2024 in file NDR058-20.
14. [14]
    Tree 5 is a dead iron bark and Tree 6 is a live blue gum of approximately 24 m in height. In the report there is a fork in Tree 6 which is approximately 6 metres above the ground.
15. [15]
    The report notes that branches of Trees 5 and 6 extend over the common boundary by more than 0.5 of a metre and these overhanging branches are over 2.5 metres above the ground.
16. [16]
    Shapter’s complaints are:

    1. Tree 1 causes shade over the solar panels in the afternoon during the winter months and the electricity generated by the solar panels during these times drops dramatically.
    2. The close proximity of the two live trees causes litter to accumulate on Shapter’s property and causes sooty mould and pollen to build up on the roof and on the solar panels. Pollen builds up on rainwater strainers and is likely to contaminate rainwater. These issues require cleaning and maintenance by Shapter.
    3. There is danger of the trees falling onto Shapter’s property which may cause serious damage to persons or property on Shapter’s property.
    4. There are branches of Trees 5 & 6 overhanging the common boundary which may break off and cause serious damage to person or property on Shapter’s property.
    5. Roots from Tree 1 pose a threat to Shapter’s land and improvements.
    6. Ongoing proliferation of termite and ants from Trees 1 and 2.
17. [17]
    The issue of positioning of Shapter’s house was raised by McLeod. That is Shapter knew about Tree 1 before she erected the house and planned the positioning of the solar panels. McLeod says that the positioning of the house and solar panels should have been designed to maximise the exposure to the sun. Shapter responded that the previous owners of Turn Ltd’s property had agreed to allow Shapter to regularly trim the branches of Tree 1 to allow maximum exposure of the sun to the solar panels. Turn Ltd will not agree to this proposal.

EXPERTS

18. [18]
    The parties called arborists, solar panel electricians and a botanist.
19. [19]
    In the main these experts agreed with each other regarding the health of the trees.

ARBORISTS

20. [20]
    Mellor and Cowan, arborists, both gave oral evidence. In their opinion there is no immediate danger of any of the four trees falling onto Shapter’s property in the next 12 months. They confirmed that the dead trees were not in danger of falling. They both described the other two trees as being healthy.
21. [21]
    The arborists stated that if any the branches of Trees 1 or 2 were to fall then those branches would drop onto Turn Ltd’s land. Even if the dead ironbark was to fall it is likely to fall parallel to the common boundary fence line and therefore was not a danger to anyone or property on Shapter’s land.
22. [22]
    Mellor and Cowan prepared a joint report dated 18 June 2024 and filed in the Tribunal on 19 June 2024. The joint report says:

    1. Tree 5 is dead and there is a recommendation to remove it at a cost of $1,500. As mentioned previously both experts stated there is no immediate danger of this tree falling onto Shapter’s property even though it leans towards Shapter’s dwelling.
    2. Tree 6 is healthy but extends over the common boundary by at least three to four metres. Shapter provided evidence that one branch fell from Tree 6 and landed on the common boundary fence.
    3. The arborists stated that there is a fork in Tree 6 about 6 metres above the ground and any pruning should take this fork into account so that Tree 6 is not weakened by the pruning. The arborists recommend pruning to reduce risk of failure at an estimated cost of $6,000 to $7,000 and pruning every three years at an estimated cost of $5,000 to $6,000.
    4. Both arborists stated that Tree 6 is otherwise healthy.
    5. There is a presence of sooty mould in the area but there was no evidence of sooty mould detected within or under the canopy of Trees 5 and 6.
23. [23]
    In the application in NDR057-24 Shapter is seeking removal of both Trees 5 and 6.
24. [24]
    McLeod would not agree to fell the two dead trees, but he agreed that Shapter could fell the dead trees at her cost on the basis that any contractors that Shapter employed had the requisite skill and appropriate insurance. Shapter would not agree to this proposal.
25. [25]
    Both arborists agree that Tree 1 is approximately 25 metres high and is reasonable heath.
26. [26]
    Both arborists did say that one of the sources of the sooty mould that Shapter is complaining about may be caused by Tree 1. That is the large blue gum. They say that sooty mould is present in the environment of 1 Mary Street but no evidence of sooty mould was found under the canopy of Tree 1. They go on to say that sooty mould was not found in any significant levels as would be the case with another species, a Cadaghi tree. See page 7 of the joint report filed in the Tribunal on 29 March 2024.
27. [27]
    The joint report for Tree 1 states that if the canopy for Tree 1 is pruned then care should be taken so as not to weaken the tree. Any work that is carried out should be undertaken according to Australian Standards by a level 5 arborist. They stated that special equipment is required for this task. The initial cost would be $7,000 to $8,000 with maintenance work required every three years at a cost of $5,000 to $6,000.
28. [28]
    There is no evidence that termites and ants from the four trees are a problem for Shapter’s property.

SOLAR PANEL EXPERTS

29. [29]
    Wesley John Corbett (‘Corbett’) and Gregory Taffe (‘Taffe’), Solar Panel experts/electricians, both gave oral evidence. Tests were undertaken and they both concluded that Tree 1 was causing a shadow over Shapter’s solar panels in the afternoon during the winter months and the efficiency of these solar panels dropped dramatically during the winter months. They both examined Shapter’s house and advised that the problem could be rectified with further solar panels at a cost of approximately $11,000 to $13,000. This cost would be a combination of solar panels and extra battery capacity.
30. [30]
    They stated that mains electrical power was available approximately 100 metres from Shapter’s property. However, they stated that for Shapter to connect to this mains power source would cost in excess of $20,000. So, this was not a cost-effective solution for Shapter.
31. [31]
    Shapter initially advised the Tribunal that sun does shine on the solar panels in the morning and she and Caulfield try to manage the situation by using kerosene for heating and any slack is taken up by running the generator during the winter months. The generator comes on automatically when there is not enough energy stored in the batteries. They try to avoid having the generator start in the morning as a concession to their neighbours.
32. [32]
    Caulfield stated that the cost to run the generator per annum was approximately $200 to $500 per annum. The solar panel experts estimated that this cost is between $300 to $500 and possibly up to $1,000 per annum.
33. [33]
    Corbett was questioned about the design of the solar panels, and he stated that he designed the solar panel system but had no input into the design or positioning of Shapter’s house. He stated that the solar panel system would work more efficiently if Tree 1 was trimmed.

BOTANIST

34. [34]
    David Robert Francis (‘Francis’) has a Bachelor of Science degree, and he is an ecologist. He prepared a report which was filed in the Tribunal on 21 February 2023. Francis also gave oral evidence during the hearing. He stated:

    1. Tree 1 is approximately 100 years old and old trees are very important to an area as they provide a habitat for many animals and birds. Hollows in old trees are very important for breeding purposes.
    2. Old trees are not rare in this area, but all old trees are very valuable for many animals and birds such as bats, gliders and insects. There is evidence that koalas are in the area.
    3. Pollen is produced by many trees which flower mainly during the summer months. Pollen can travel in the wind over great distances.
    4. Sooty mould is sometimes present around eucalyptus trees.
    5. There are many trees in the vicinity of Shapter’s house and pollen could have emanated from many sources.
    6. Francis was cross examined by Shapter. Francis stated that pollen would emanate from Tree 1 but he could not say how much pollen came from Tree 1 as compared with other trees in the vicinity of Shaper’s property.
    7. Tree 1 adds to the general biodiversity of the area.

FINDINGS

35. [35]
    The applications have been filed by Shapter and she must prove her case on the balance of probabilities.
36. [36]
    To succeed in her claims Shapter must demonstrate pursuant to s 46 of the NDR Act that her property is affected by Trees 1, 2, 5 or 6 at a particular time. Her property is affected if any of the following apply:

    1. Branches from any of the trees overhang her property.
    2. Any of the trees has caused, causing, or likely within the next 12 months to cause –

1.  serious injury to a person on her property; or

2.  serious damage to her land or property on her land; or

3.  substantial, ongoing and unreasonable interference with Shapter’s use and enjoyment of her land.

37. [37]
    Turn Ltd is the tree-keeper of Trees 1, 2, 5 and 6 pursuant to the provisions of the NDR Act.
38. [38]
    Trees 1 and 2 were present when Shapter designed her house, including the positioning of the solar panels, and constructed her house in its current position in 2019.
39. [39]
    During the hearings Shapter now accepts that Trees 1 and 2 are in no danger of falling onto Shapter’s property. Therefore, the only issues that are relevant for Trees 1 and 2 are the pollen, sooty mould, leaf debris and the shading of the solar panels.
40. [40]
    Shapter says that the previous owner of Turn Ltd’s property was prepared to allow Shapter to trim Tree 1 to reduce the impact on the solar panels. Turn Ltd will not consent to such trimming. At the conclusion of the hearing, I asked Shapter if she was still prepared to be responsible for the cost of the trimming of Tree 1. Shapter stated that she was not now prepared to pay this cost after what McLeod has put her through.
41. [41]
    The experts state that Tree 1 is causing a shadow over Shapter’s solar panels which affects their efficiency in the afternoon during the winter months. The cost to Shapter to run her generator during these months is between say $500 and $1,000 per annum.
42. [42]
    The solar panel experts say that Shapter’s electrical supply during the winter months could be resolved with the installation of further solar panels and possibly new battery storage at a cost of between $11,000 and $13,000.
43. [43]
    The arborists estimate that the initial cost to trim Tree 6 is $7,000 to $8,000 and a cost of between $5,000 and $6,000 every three years. Tree 1 is some 24 metres in height, and it is much larger than Tree 6. Further equipment to reach the branches of the tree is required to properly trim Tree 1. An arborist is also required to ensure that any trimming of Tree 1 does not weaken the tree and a management plan is recommended so that the tree is trimmed every three years by an arborist.
44. [44]
    Turn Ltd will not consent to the removal of any of the trees. Turn Ltd will allow Shapter to remove Trees 2 and 5 at her cost if such removal is carried out by a qualified arborist who has the appropriate insurance.
45. [45]
    Shapter and Turn Ltd are in an area that is semi-rural with many trees present in the general vicinity of both properties.
46. [46]
    Trees 2 and 5 are dead. The arborists state that there is no danger that these trees are likely to fall onto Shapter’s property over the next 12 months.
47. [47]
    Tree 1 is more than 100 years old and contributes to the local ecosystem and biodiversity of the area.
48. [48]
    Tree 6 has part of its canopy overhanging Shapter’s property. Section 52 of the NDR Act makes the tree-keeper responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.
49. [49]
    To trim Tree 6 and maintain it is expensive. Initial trimming would be $6,000 to $7,000 and maintenance every three years would be $5,000 to $6,000. The overhang of Tree 6 is more than 50 cm as specified in s 65(c) of the NDR Act.
50. [50]
    If any of the branches of Tree 5 overhang the common boundary by more than 50 cm and are more than 2.5 m above the ground, then these branches are the responsibility of Turn Ltd.
51. [51]
    I propose to make orders for Turn Ltd to remove any of the offending branches of Trees 5 and 6 that extend over the common boundary fence that extend over the fence by more than 0.05 m and are over 2.5 m above the ground.
52. [52]
    The most cost-effective way of dealing with Trees 5 and 6 may be to remove the trees. However, this is something for Turn Ltd to consider.
53. [53]
    Shapter complains of pollen and sooty mould being present on the sun panels, on her roof, and blocking her drainage to her water tanks. I find that the sources of this pollen and sooty mould could be from many sources close to or at a considerable distance from Shapter’s property. Therefore, Shapter has not proved on the balance of probabilities that Tree 1 or Tree 6 is the sole or major source of all the pollen and sooty mould that is on Shapter’s property. In any event it seems to me that these problems can be eliminated or minimised by regular cleaning and general maintenance at a minimal cost.
54. [54]
    The matters that I must consider in making a decision under the NDR Act are set out in s 73 of the NDR Act. This includes whether Tree 1 contributes to the local ecosystem.
55. [55]
    The previous decisions of the Tribunal are of assistance in assessing what is substantial and ongoing interference with a landowner’s enjoyment of their land regarding the issue of trees.
56. [56]
    The Tribunal has also considered the question of whether the trees or vegetation were present before Shapter constructed her house in 2019. The Tribunal has found that the presence of the trees or vegetation does not prevent a claim but the issue of who pays for the removal or trimming of the trees or vegetation is relevant.
57. [57]
    The matter of Thomsen v White [2012] QCAT 381 (‘Thomsen’) involved the construction of a new house where a very large ficus tree was growing in an adjoining property. The ficus tree was approximately 24 metres wide and approximately 50 years old and some of the tree roots extended into the homebuilder’s property. The homebuilder complained that the tree blocked sunlight and caused mould. The homebuilder knew of the existence of the tree prior to commencement of the construction of the house. At paragraph 24 Senior Member Stilgoe says

the existence of the tree prior to construction will not be taken into account in determining whether an order will be made but will be relevant when determining who should pay for the work.

58. [58]
    Thomsen shows that the fact that the tree existed before the house was erected does not prevent a claim from being made under the provisions of the NDR Act but this issue is relevant in determining who should be responsible for the cost of removing a tree.
59. [59]
    Shapter has not provided any evidence that the Trees are causing any root damage or causing any termite or ant problems to Shapter’s house or property. Therefore, I dismiss this part of Shapter’s claim.
60. [60]
    Shapter has complained of leaves and debris emanating from the Trees. Shapter has not provided sufficient evidence to demonstrate that the debris and leaves that falls on Shapter’s property comes solely or principally from Trees 1 and 6. In any event the Tribunal has considered this issue in other matters:

    1. In the matter of Street v Smith [2018] QCAT 193 Member Deane at paragraph 23 estimated that maintenance and cleaning of leaf debris of half an hour per week was not substantial, ongoing and unreasonable interference.
    2. In the matter of Graham & Ors v Welch [2012] QCA 282 it was determined the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not normally provide a basis for the ordering the removal of an urban tree. In these proceedings I note that the area is semi-rural, but I believe that the same principles apply. Also, what complicates this issue in these proceedings is the significant number of trees in the general vicinity of Shapter’s property.
61. [61]
    It is clear that Tree 1 is affecting the generation of electricity from the solar panels erected on Shapter’s roof in the afternoon during the winter months.
62. [62]
    The question that must be answered: is Shapter’s property affected at a particular time by Tree 1? See s 46 of the NDR Act. To answer this question, one must examine s 46(a)(1)(C) of the NDR Act. That is Shapter’s solar panels must be affected by Tree 1 at a particular time and it must have caused, be causing, or be likely to cause over the next 12 months substantial, ongoing and unreasonable interference with Shapter’s enjoyment of her property.
63. [63]
    To answer the question above the obstruction must be “severe”. Section 66 outlines what orders the Tribunal can make in these types of cases. Section 66(3) of the NDR Act states that the interference is an obstruction to sunlight only applies to “severe obstruction of sunlight to…a roof…”.
64. [64]
    What is “severe”? The Tribunal has previously found that a severe obstruction is considerable one. See paragraph 54 of the decision of Senior Member Brown in the matter of Robertson v Darvas [2016] QCAT 136. Robertson’s case examined the issue of sunlight to a window of a house during winter. In this case the Tribunal dismissed the application.
65. [65]
    The impact of the loss of the generation of electricity from the solar panels requires Shapter to generate electricity using a diesel generator. Estimates of this cost from Shapter and the solar power experts ranged from $500 to $1,000 per annum. Shapter advised the Tribunal that she moved off-grid with her partner, Mr Caulfield, to go green. She was also concerned with the effect on her neighbours of the noise and fumes from the generator. Shapter also stated that power is generated in the morning during winter and the loss of power from the solar panels can be managed with the use of the generator and kerosene heaters.
66. [66]
    The cost to  Turn Ltd to have Tree 1 removed or pruned, and have it pruned every three years, is many thousands of dollars when compared with the relatively small sum to generate power from the diesel generator. Taking these factors into account I find that the obstruction of the sunlight to Shapter’s solar panels in the afternoon during the winter months is not a severe obstruction and Shapter’s land is not affected by Tree 1 regarding the factors set out in s 46 of the NDR Act.
67. [67]
    Taking all above factors into account I find:

    1. Except for the issue of any overhanging branches, Shapter’s property is not land affected by Trees 1, 2, 5 and 6 as set out in s 46 of the NDR Act. Therefore, I propose to make orders to dismiss these applications.
    2. Shapter’s land is affected by Trees 5 and 6 regarding the application to remove the overhanging branches. I propose making orders for removal of any offending branches.
68. [68]
    The parties have raised the issue of costs and they both suggested that the Tribunal should order for costs against the other party. I am sure that the parties have expended substantial monies in engaging their experts to give reports and to be available to give oral testimony in the Tribunal proceedings. It is my view that each of the parties has been partly successful in their prosecution and defence of the applications. Accordingly, I do not propose to make any orders for costs in these proceedings.
69. [69]
    As can be seen from the material filed in both these proceedings the parties have been in dispute with each other for several years. The relationship between the parties can only be described as extremely acrimonious. I suggested during the hearings that it may be beneficial for both parties to have without prejudice discussions to possibly come to a resolution, at least on some of the issues in dispute. The parties refused to engage with each other and there were many interruptions during the proceedings instigated by both parties. It is hoped that the parties can work more co-operatively in the future.
70. [70]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) states that each party to a proceeding must bear the party’s own costs for the proceeding. The facts and circumstances of these applications do not warrant my making any orders for costs. Accordingly, I do not exercise my discretion to make any orders for costs.