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Dunn v Reynolds[2024] QCAT 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Dunn and Anor v Reynolds [2024] QCAT 45

PARTIES:

Wayne Dunn and Kristine Dunn

(applicants)

v

MArk Anthony Reynolds

(respondent)

APPLICATION NO/S:

NDR004-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

30 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

  1. The Respondent is to prune the canopy of all trees along the eastern boundary of their property, to reduce the height to no more than level with the bottom of the guttering on the roof of the Applicants’ dwelling.
  2. The Respondent is to conduct lateral reduction pruning of all trees along the eastern boundary of their property, to reduce the canopies to behind the alignment of the dividing fence structure/boundary.
  3. The Respondent is to remove the Tuckeroo tree (Cupaniopsis sp.) to ground level.
  4. All tree debris is to be removed from the Applicants’ and Respondent’s property after the pruning is performed.
  5. The work required by this order is to be carried out:
    1. initially within 60 days of this order and thereafter not less than annually to maintain the canopies of the trees on the eastern boundary to the height and spread of the initial pruning.
    2. by an Australian Qualified Framework level 3 arborist with relevant public liability and work cover insurance cover.
    3. without the use of climbing spurs, climbing gaffs of climbing irons; and
    4. at the Respondent’s cost
  6. If the work is not completed within 60 days, the Applicants may arrange to have the work performed as above.
  7. Should the Applicants be required to arrange the work and/or the ongoing pruning stipulated above in default of it being done by the Respondent:
    1. the person(s) undertaking the work is/are entitled to enter the Respondent’s land to carry out the work upon the Applicants giving 14 days written notice of that intention to the Respondent.
    2. the costs incurred by the Applicants engaging a tree lopper and arborist to do the work in default of the Respondent are recoverable from the Respondent as a debt without further notice being required to be given.
  8. These orders remain in force and effect for a period of 10 years from the date hereof.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicants filed an application for resolution of a tree dispute – where the applicants claimed a tree interfered with the use and enjoyment of their land – whether the tree was likely to cause serious injury or damage – where the tree has substantial overhang onto the applicants’ property – where a tree-keeper is responsible for proper care and maintenance of the tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 12, s 14, s 15(1), s 45, s 46, s 48, s 48(1)(a), s 52, s 61 s 65, s 66, s 71, s 72, s 73, s 74, s 75

Belcher v Sullivan [2013] QCATA 304

Finch v Grahle [2017] QCAT 80

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The Applicants and Respondent are neighbours. The Applicants’ house is a single level house. The Respondent’s house is a two-storey house. The Respondent has 9 trees on their property which are within 300mm of the eastern boundary between the two properties. Branches from several of the trees extend over into the Applicants’ land.[1] The Applicants lodged an application in this Tribunal on 24 January 2022 claiming that:
    1. Multiple attempts have been made to discuss the risk and damage to the property due to the size and proximity of the trees, but the respondent was not receptive to any discussions.
    2. Trees are situated right at the boundary within 1 metre from the house and obstruct sunlight and are creating storm, fire, and insect hazard.
    3. There is a risk of serious injury within the next 12 months due to the risk of:
      1. Storm damage from tree debris; and
      2. Fire damage from tree debris.
    4. The trees have caused serious damage to the Applicants’ land and/or are likely to within 12 months due to:
      1. Localised flooding which has occurred due to blocked drain/gutter and change of natural water course; and
      2. Root damage which has been noted due to closeness to house and foundations; and
      3. The risk of storm damage, which is a real possibility from tree debris; and
      4. The risk of fire damage which is a real possibility from tree debris.
    5. The Respondent contributed to the damage by placing trees in raised sleeper beds on the boundary fence which changed the natural water flow on the properties resulting in localised flooding during storms and downpours on the Applicants’ property.
    6. Concrete was damaged due to root invasion.
    7. The Applicants have installed additional drainage at their own expect to address the issues of change of natural water flow, but these drains are now receiving root damage.
    8. The trees have cause substantial ongoing and unreasonable interference with the Applicants’ use and enjoyment of their land due to obstructions of sunlight in that:
      1. Solar panel effectiveness has been reduced and will reduce further if current and future tree growth is not checked.
      2. Clothesline is now in shade due to proximity and size of trees.
      3. All windows on the affected side of the house are now in shadow as they are shrouded by existing trees and future growth will further effect this.
  2. [2]
    The Applicants sought the following orders:
    1. to remove or prune the branches of the tree and other tree work (non-specified).
    2. An order that a person can enter the land to carry out the order.
    3. An order that a person can enter the land to obtain a quote to carry out the order.
    4. An order the Respondent pay the costs for carrying out these orders; and
    5. Other orders, being that there be regular maintenance to ensure trees are managed at a reasonable level and future placement of trees does not cause issues.
  3. [3]
    The Respondent lodged a response with the Tribunal on 16 March 2022 stating:
    1. The matter has been unable to be resolved due to the Applicants not approaching him to discuss the matter in a neighbourly civil fashion.
    2. The Applicants had cut the trees on his property without discussing with him and he has written to them stating they cannot cut down trees on his property, only the branches which overhang the fence line.
    3. The application is without merit, misleading, and there is no evidence to support the Applicants’ claims.
    4. The Respondent denies the trees overhang by at least 0.5 meters or that there is any risk of storm damage, fire damage, serious root damage, personal injury, serious flood damage, raised sleeper beds or trees blocking the sunlight.
  4. [4]
    The Respondent sought the Tribunal dismiss the application and make none of the orders as requested by the Applicants and, if within the scope of QCAT’s power, for the Tribunal to assess whether the Applicants have poisoned the Photinia on the Respondent’s property.

Statutory framework

  1. [5]
    The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute did arise, then the legislation facilitates for the resolution of that dispute.[2]
  2. [6]
    The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.[3] The tree involved in this application is undeniably a tree as provided for in the Act and this is confirmed in the Tree Assessment Report.[4]
  3. [7]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.[5] The affected land must adjoin the land on which the tree is situated[6] or would adjoin the land if it were not separated by a road.[7] As the Applicants and Respondent are neighbours who reside next to each other on adjourning land, I am satisfied that these properties meet the definition of “land” as required under the legislation.
  4. [8]
    Land is affected by a tree if branches from the tree overhang the land;[8] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,[9] serious damage to the land or property on the land,[10] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[11]
  5. [9]
    The Act provides for who is a tree-keeper.[12] That is, if the land on which the trees are situated is a lot recorded in the freehold land register.[13] For the purposes of this application, the trees are all situated on the land belonging to the Respondent, Mr Reynolds: therefore the Respondent is the tree-keeper for all the trees subject to the application.
  6. [10]
    The Act makes provision for the responsibilities of a tree-keeper, including ensuring that the tree does not cause serious injury to a person; or serious damage to a person’s land or any property; or cause substantial and ongoing and unreasonable interference with the use and enjoyment of that land.[14] The primary consideration for the Tribunal in deciding an application is safety.[15]
  7. [11]
    The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,[16] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,[17] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[18] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[19]
  8. [12]
    For interference that is an obstruction of sunlight, the tree must rise at least 2.5 metres above the ground[20] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.[21]
  9. [13]
    Without limiting the powers of the Tribunal to make orders under s 66(2) of the Act, the Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order under s 66.[22] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.[23]

Tree Assessor’s Report

  1. [14]
    On 16 September 2022, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.
  2. [15]
    On 8 October 2022, Mr Michael Snowden, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 16 October 2022. Relevantly, the report states:
    1. The jurisdictional issue are all meet in that the property meets the provision of s 42 of the Act, the trees met the definition of trees under s 45, the Applicants’ and Respondent’s property adjourns and meets the provision of s 47, the trees are wholly or mainly situated on the Respondent’s property making him the tree- keeper, and the branches of the trees extend over into the Applicants’ property meeting the provisions of s 46(a)(i).
    2. The nine trees are seven Lillypilly trees, one Photinia (Tree 4) and one Tuckeroo (Tree 9). All trees except Tree 4 (the Photinia) are visibly healthy and are typical examples of their respective species. Tree 4, the Photinia, has sections of its canopy in decline with patrial canopy defoliation occurring.
    3. Branches from several of the trees extend over the Applicants’ land. The canopy of Tree 5 extended laterally across the diving fence structure and has several small branches in direct contact with the guttering of the Applicants’ dwelling which has been built within 1.2 metres of the boundary of the property. Tree 9, the Tuckeroo, is growing directly in contact with the dividing fence structure and has the growth potential to expand its trunk diameter; it is likely that it will eventually cause fence displacement and damage in the future, and therefore it is recommended that this tree be considered for removal to ground level.
    4. In relation to the Applicants’ claim that the trees are causing an interference to sunlight impacting the photovoltaic (solar) panel on their roof and impacting their house (including shadowing windows and the clotheslines) the assessor  determined that: while it is likely possible the trees subject to this application are partially contributing to a partial obstruction of sunlight reaching the Applicants’ photovoltaic panels, in the tree assessor’s opinion it is more likely the height difference and alignment of the respondent’s dwelling is causing the majority of the claimed loss of solar panel effectiveness. The height difference between the houses and the Applicants’ property being built to the boundary is also likely contributing to the obstruction of the sunlight reaching the dwelling and clothesline.
    5. Initial pruning and maintaining the subject trees to the level of the Applicants’ dwelling’s guttering will likely remove the potential for these trees to obstruct sunlight reaching the Applicants’ dwelling.
    6. Based on the respective small size and weather protected location of the trees; it was the trees assessor’s opinion that risk of storm damage and fires damage caused by the trees is extremely low.
    7. The trees have minimal potential to affect the natural water flow in the areas as it appears the dividing fence which extends down into the soil surface may be potentially altering water movement and it would be recommended that the service of a plumber/landscaper be consulted to design and install a suitable drainage system along the boundary of the Applicants’ property to deal with water flow.
    8. From an arboricultural perspective the root system of the trees subject to the application (other than the Tuckeroo) are highly unlikely to cause displacement or damage to the Applicants’ property in the future given the distance, land structure, and the tree specifies involved.
    9. While the Respondent’s property does not appear to be within a vegetation protection area, it is recommended the Respondent seek tree protection exemptions/approval from the Sunshine Coast Council prior to performing a tree interference.
    10. The report recommended canopy reduction pruning of all trees along the eastern boundary of the Respondent’s property to reduce the height to approx. 2.5 metres in height (equal to the guttering on the Applicants’ dwelling); lateral reduction pruning of all trees along the eastern boundary of the Respondent’s property to reduce their canopies to behind the alignment of the dividing fence structure/boundary, ongoing maintenance at intervals not exceeding 12 months to maintain the canopies to the height and spread of the initial pruning, and the removal to ground level of the single Tuckeroo impacting the eastern boundary fence.
    11. It was also recommended that the work be performed by a AQF level 3 qualified arborist, that the arborist or company provide proof of public liability and work cover insurance, that climbing spurs, gaffs, or irons shall not be used for the pruning works and all tree debris from both properties is removed after pruning.
    12. Both the Applicants and Respondent agreed in principle with the proposed pruning and single tree removal at the time of the assessment.
  3. [16]
    The Tribunal made directions on 25 November 2022 that if the parties agree to resolve the dispute in terms of the proposed agreement in the tree assessment, the agreement was to be signed and returned by 16 December 2022. The Applicants signed the agreement confirming they consented to resolving the matter in line with the tree assessor’s recommendations. The Respondent returned the agreement confirming that he did not consent to the proposed agreement.
  4. [17]
    On 11 January 2023 the Tribunal made filing directions about filing of further evidence.
  5. [18]
    In compliance with the directions the Applicants filed a further statement together with 24 pages of attachment on 7 February 2023. The statement confirmed the Applicants agree with the tree assessor’s recommendation and will abide by the Tribunal’s decision and had followed the recommendation of the assessor and installed a stronger drainage system on their property to mitigate water issues. The additional evidence included photos to evidence the further tree growth and impact on the clothesline, the shading on the solar panels at different times of the day, and addressed the Applicant’s concerns in relation to water damage, leaf debris, and storm damage.
  6. [19]
    In compliance with the directions, on 16 March 2023 the respondent filed a further statement and attached one page of the tree assessment report. The Respondent agreed to perform work on trees 4, 5 and 6 (being the Photinia and 2 Lillypilly trees) as described in the report but stated the pruning height should be 3.5 metres (as opposed to the 2.5 metres recommended in the report), being the height of the solar panels, and asserted the sun reflection from the Applicants’ solar panel causes a nuisance to the Respondent. The Respondent further stated that the Applicants made false and misleading statements in their QCAT application about the risk of storm damage and fire damage and that the tribunal should consider this in making a decision.
  7. [20]
    On 10 May 2023 the Tribunal directed the matter would be determined on the papers without an oral hearing. This is that decision.

Findings

  1. [21]
    I am satisfied of the interpretation and jurisdictional issues in s 45 to s 49 and s 61 of the Act and find that these are trees within the definition under s 45 of the Act, the Applicants and Respondent are the registered owners and appropriate parties, the trees are primarily on the Respondent’s property making the Respondent the tree-keeper and the branches overhang the land to the Applicants’ property, meaning the land is affected by the tree and there is jurisdiction for the Tribunal to determine the matter pursuant to s 61 of the Act.
  2. [22]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied the Applicants have made a reasonable effort to reach agreement with the Respondent and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues. The issues relate to the Applicants’ land being affected because branches from the trees overhang the land and I find branches extend to a point over the Applicant’s land that is at least 50 cm from the common boundary. These issues cannot properly be resolved using the process under part 4 of the Act and the Applicants have given the copies of the application to the Respondent as required under s 63 of the Act.
  3. [23]
    I have considered the requirements under s 73 to the extent that is required. The trees are located close (within 30 cms) of the boundary; have been trimmed in the past; and there appears to be no requirement for approval from the local council for pruning or removal; however, the tree assessor recommends the Respondent make enquiries before undertaking any work. There is no evidence that the trees are of any particular historical, cultural, social, or scientific value, and limited information is provided in relation to the contribution the trees make. In the absence of any other expert evidence, I find in line with the tree assessor’s evidence that the trees have limited impact on soil stability, or the water table and the risk associated with the trees in cyclone or extreme weather events is low.[24]
  4. [24]
    In relation to the tree assessor’s recommendation for the removal of the Tuckeroo tree, I have considered s 69 and s 72 of the Act. Given the location of the tree so close to the boundary that it is growing directly in contact with the dividing fence it would not be appropriate to replace the Tuckeroo with another tree, noting the placement of the tree is the key issue.

Serious Injury and Damage.

  1. [25]
    The Applicants allege the trees have caused, are causing, or are likely to cause severe damage to the Applicants’ land or property on the Applicants’ land. In the circumstances, to the extent relevant, I have considered the matters in s 74 of the Act.
  2. [26]
    What constitutes serious injury or damage, and substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,[25] Judicial Member Dodd said:

[22] ‘Serious’ is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible.”

[23] ‘Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance.

[24] Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

  1. [27]
    While it is understandable that the Applicants have concerns about potential for storm or fire damage caused by the tree due to the closeness of the trees to their property and given the trees overhang the boundary, some of which are touching the Applicants’ roof and guttering, there needs be to more than just concerns and the evidence needs to support that serious injury or significant damage is likely to occur within the next 12 months.
  2. [28]
    Taking into account the expert opinion of the tree assessor that the risk of storm damage is highly unlikely for these types of trees due to the small  canopy sizes and the wind-sheltered position of the trees, and that risk of damage from fires is highly unlikely due to the lush green foliage which is likely not to be easily prone to ignition,  I do not find that the trees are likely to cause serious injury or significant damage due to storm or fire damage within the next 12 months.
  3. [29]
    In relation to the actual damage claimed in terms of localised flooding, root damage, and storm damage in terms of a broken window, there is insufficient evidence to demonstrate that serious damage has occurred as a result of these issues, which was caused by the Respondent’s trees.
  4. [30]
    While it is accepted that the Applicants’ window, which is located immediately opposite two of subject trees, was damaged after a storm, there is not sufficient evidence that the trees caused this damage. The Applicants did not observe the tree to cause the damage and have come to the conclusion that the tree debris “may” have caused the damage as there was no evidence of any other cause. This is not sufficient to determine, on the balance of probabilities, that the tree caused the damage.
  5. [31]
    In relation to flooding, while it is accepted that the Applicants may have suffered localised flooding, there is insufficient evidence to find that this is the direct result of the trees, when the tree assessor’s report determined that the trees have minimal potential to affect the natural water flow in the area and that it appears the dividing fence structure between the two properties which extends down into the soil surface may be potentially altering water movement.[26]
  6. [32]
    In relation to root damage, while the Applicants’ photos demonstrate some roots are coming thought the fence and the tree assessor found basal root crowns of the subject trees growing in a narrow soil area between the concrete surface and the dividing fences, with the exception of the Tuckeroo (Tree 9) there was insufficient evidence to demonstrate that they have caused significant damage or will likely to do so within the next 12 months. The tree assessor’s report found no significant roots within the exposed trench/drain within the Applicants’ property, no visible displacement or damage, and determined from an arboricultural perspective (with the exception of the Tuckeroo tree), the subject trees are highly unlikely to cause displacement or damage to the Applicants’ property in the future due to the distance, land structure and tree species involved.[27] In the absence of any evidence to contradict this expert evidence, I prefer that evidence.
  7. [33]
    In terms of the Tuckeroo tree (Tree 9) which is growing directly in contact with the dividing fence structure, the tree assessor recommended removal of the tree to ground level, due to the growth potential to expand it’s trunk diameter and cause fence displacement and damage in the future.[28]
  8. [34]
    While at the time of the report in October 2022 the tree assessor noted it was unlikely the tree would have the growth potential within the next 12 months to cause displacement or damage, they determined that it is likely that it will eventually cause the fence to displace and be damaged and described it as inevitable.[29]
  9. [35]
    The Respondent agreed in principle with the recommendation to remove the tree while small and not causing inevitable fence displacement and damage. However, they have not removed the tree and appear to no longer agree with the tree assessors recommendation that it should be removed. There was however no information in the Respondent’s submission dated 16 March 2023 as to why the Respondent has had a change of position and does not agree with this recommendation.
  10. [36]
    Given 15 months have passed since the tree assessor’s inspection and report in October 2022 and the  tree has not been removed and has been allowed to continue to grow in that time, and factoring in the tree assessor’s opinion that this will cause inevitable fence displacement and damage,  I find that the Tuckeroo tree is impacting the fence and given it has continue to grow over the past 15 months it is likely to cause serious damage to the Applicants’ property, being the dividing fence, within the next 12 months. 
  11. [37]
    In relation to the Tuckeroo tree, given the recommendations for removal of the tree, I have considered the provisions of s 69, s 72 and s 74(2) in the Act. I am satisfied that the Tuckeroo is impacting on the boundary fence and in the circumstances, given the location of the tree so close to the boundary and the dividing fence, there appears to be no other option to satisfactory resolve the issue other than to remove the plant to ground level. The Respondent as the tree-keeper has been aware of the concerns in relation to the Tuckeroo tree and the recommendation to remove it for over a year and there is no evidence that they have taken any steps to remove the tree or prevent or reduce the risk of further damage.

Leaf Litter

  1. [38]
    I accept that there is some interference with the Applicants’ use and enjoyment of the land arising out of plant matter dropping onto their property, and the Applicants stated that leaves have previously dropped on the roof blocking the gutters. The Applicants also claim that the leaf debris that accumulates and forms part of the water events adds to the issues of drainage and water damage and have provided photographs to support their claims.
  2. [39]
    The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the Applicants’ use and enjoyment of the land.[30] Maintenance of the Applicants’ property is their responsibility.
  3. [40]
    Whilst no doubt inconvenient, leaf litter is a natural incident of suburban living. The tree assessor’s report noted that only small amounts of leaf debris could be identified as originating from the trees subject to this application and was accumulated on both the Respondent’s and Applicants’ properties.[31] Having considered the photos provided by the Applicants and in the absence of any other expert evidence, I am not satisfied the leaf litter is causing serious damage to the Applicants’ land or any property on the Applicants’ land, or substantial, ongoing, and unreasonable interference with the Applicants’ use and enjoyment of the Applicants’ land.

Unreasonable interference – Obstruction of sunlight

  1. [41]
    The Applicants allege the trees have caused, or are causing, substantial, ongoing, and unreasonable interference with the use and enjoyment of the Applicants’ land, namely in relation to obstruction of sunlight to their windows, clothesline, and solar panels. In the circumstances, I have considered the matters set out in s 75 of the Act.
  2. [42]
    An obstruction of sunlight is interference only if:
    1. the tree rises at least 2.5 metres above the ground; and
    2. the obstruction is a severe obstruction of sunlight to a window or roof of the dwelling on the neighbour’s land.[32]
  3. [43]
    I am satisfied that the trees in this matter do rise more than 2.5 metres above the ground and the obstruction of sunlight alleged is in relation to the Applicants’ roof and windows.
  4. [44]
    In relation to the concerns about the windows and the clothesline being in shade from the trees, I do not find that this is a substantial, ongoing, and unreasonable inference causing a severe obstruction of the sunlight. The impact on the clothesline does not meet the definition under s 66(3)(b)(i) of the Act and the specific impact on the windows is not well evidenced in the material. In addition, the tree assessor’s report found that given the tree alignment to the Applicants’ dwelling, it is likely that the trees are only causing partial obstruction during the late afternoon as the sun moves into a north-western direction. The considerable height difference between the building and close proximity of both dwellings (given the front section of the Applicants’ building is built to the boundary and the rear section is within 1.2 metres of the boundary) is likely an issue contributing to the obstruction of sunlight reaching the Applicants’ dwelling and clothesline.
  5. [45]
    In line with the evidence provided by the Applicants including the additional photographs provided as exhibits in the submissions made on 7 February 2022, I accept that the subject trees are an ongoing and unreasonable interference with the Applicants’ use and enjoyment of their land, as it is impacting on their solar panels on their roof.
  6. [46]
    The issue is, however, whether this ongoing interference is substantial and severe. Section 75 of the Act requires there be consideration of whether anything other than the tree has contributed to or is contributing to the interference. While the Applicants assert that it is the trees that are impacting the solar panels and have provided photographs to demonstrate shadowing on the solar panels, they have not provided any other expert or independent evidence to demonstrating that the trees are having a significant and substantial impact on their solar panel effectiveness. While they have provided the solar feed amounts in a graph for 2020-2021, there was only 3-4 months which were able to be compared across each of the graphs and there may be other factors, such as the weather during the month, and age of the solar panels, which could impact on the effectiveness.
  7. [47]
    The tree assessor confirmed that it is likely possible the trees subject to the application are partially contributing to a partial obstruction of sunlight reaching the Applicants’ solar panels. However, in his opinion, it is more likely the height difference between the neighbours’ houses and the alignment of the Respondent’s dwelling which is causing the majority of the claimed loss of solar panel effectiveness.[33]
  8. [48]
    In the circumstances, as there is no other independent evidence to contradict the tree assessor’s report, while I find there is some interference which is ongoing and unreasonable, I cannot find it is substantial or severe given the majority of the obstruction is not currently being caused by the subject trees.

Respondent’s concerns

  1. [49]
    In terms of the Photinia plant, while there was evidence in the tree assessor report that it was not visibly healthy and partial canopy deflation was occurring,[34] there was no evidence to support a finding that it had been poisoned, and if so, who poisoned it. As such I decline to make any finding on this issue.
  2. [50]
    In relation to the concerns that the Applicants have provided false and misleading information as to the risk posed by the trees’ capacity to cause storm damage, fire damage, or flooding damage, while there is insufficient evidence to make a finding  that it is likely that the trees will cause a significant risk of storm, fire, or flooding damage within the next 12 months, the trees do overhang the Respondent’s property, and some of them touch the Applicants’ roof and guttering, which may explain why the Applicants held such concerns. It is commonplace in litigation for two parties to have opposing views on the issues in dispute, and only one view is determined to be correct. While I do not find these grounds of the application are made out in relation to actual damage or risk of serious injury of damage, there is also no evidence that the Applicants deliberately made false or misleading statements to the Tribunal.
  3. [51]
    The Respondent raised concerns in their submissions dated 1 March 2023 that the reflection of the sun from the Applicants’ solar panels is causing a nuisance to the Respondent. This was the first time the issue was raised, there was no finding to support this assertion in the tree assessor’s report, and the Respondent had not provided any evidence as to what the nuisance is and how it is being caused by the solar panels. As such I can make no finding on this point, and do not consider it a relevant consideration in the determination of the matter.

Decision

  1. [52]
    In terms of the Tuckeroo tree which is growing directly in contact with the dividing fence structure, I find that it is impacting the fence and is likely to cause serious damage to the Applicants’ property, being the dividing fence, within the next 12 months. 
  2. [53]
    I am not satisfied at this time that any of the trees, other than the Tuckeroo, have caused or are likely to cause serious injury to a person or serious damage to the land or property on the land within 12 months.
  3. [54]
    In relation to whether the trees cause substantial, ongoing, and unreasonable interference with the Applicants’ use and enjoyment of the land, I accept that there is some interference with the Applicants’ use and enjoyment of the land arising out of plant matter dropping onto their property and the shading of the solar panels. However, it is not substantial and has not caused a severe obstruction of sunlight.
  4. [55]
    There are, however, overhanging branches which means that the Applicants’ property is affected by the trees, and so the Tribunal has jurisdiction to make orders about the trees.
  5. [56]
    The responsibility for controlling the branches and trees, by cutting and removing any branches of the trees that overhanging the boundary, so they do not extend over the dividing fence, is the responsibility of the Respondent as the tree-keeper.
  6. [57]
    I am satisfied to the requisite standard that the Respondent is not cutting and removing branches of the trees that overhang the Applicants’ land. As such it is open to the Tribunal to make such orders pursuant to s 66 of the Act. Given the tree assessor found that it is likely possible that the trees are contributing to partial obstruction of sunlight reaching the Applicants’ solar panels, albeit it was not a substantial or severe obstruction at the time of his report and the pruning and maintenance of the trees to the level of the Applicants’ dwelling’s guttering would likely remove the potential for the trees to obstruct the sunlight reaching the Applicants’ dwelling, I consider it appropriate to make orders for pruning and maintenance in line with the tree assessor’s recommendation.
  7. [58]
    There is dispute in terms of the level the trees should be pruned to. The tree assessor recommended that the trees should be pruned to the level of the Applicants’ dwelling’s guttering, being 2.5 metres, as this would likely remove the potential for the trees to obstruct sunlight reaching the Applicants’ dwelling.
  8. [59]
    The Applicants are content with this recommendation. The Respondent asserts the pruning level should be 3.5 metres, which is said to be equal to the bottom of the Applicants’ solar panels. This level is based on an assertion the standard height of guttering on a single-story house is 3.3 metres, both houses are north-facing and an assertion that sun reflection on the solar panels is causing a nuisance to the Respondent.
  9. [60]
    In light of the finding that although not severe, the trees may have been causing some obstruction of sunlight impacting the solar panels and the photos demonstrate the tress have been touching the Applicants’ roof and guttering, and the tree assessor determined that if the trees are at or below the guttering level this should remove the potential for the trees to obstruct sunlight reaching the Applicants’ dwelling, this level appears appropriate to address the concerns in this matter.
  10. [61]
    While it may be the case that the standard height is 3.3 metres, the tree assessor determined the specific guttering on the Applicant’s house was 2.5 metres. As the Respondent provide no real reason as to why the pruning should be a metre higher than recommended other than disputing the level of the guttering and that the sun causes  reflection off the solar panel and causes a nuisance,  something not previously raised and not supported by any evidence, I prefer the expert advice and recommendation of the tree assessor and I find that the branches overhanging the Applicants’ property should be pruned in accordance with the recommendations of the independent tree assessor.
  11. [62]
    However, for the avoidance of doubt over the specific height of the guttering, I make no order about a specific height in metres and simply order that the trees be pruned and maintained to a height at or below level with the bottom of the guttering on the roof of the Applicants’ dwelling.
  12. [63]
    The decision of the Tribunal is as follows:
    1. The respondent is to prune the canopy of all trees along the eastern boundary of their property, to reduce the height to no more than level with the bottom of the guttering on the roof of the Applicants’ dwelling.
    2. The Respondent is to conduct lateral reduction pruning all trees on the along the eastern boundary of their property at 47 Lamatia Drive, Mountain Creek, to reduce the canopies to behind the alignment of the dividing fence structure/boundary.
    3. The Tuckeroo tree (Cupaniopsis sp.) is to be removed to ground level.
    4. All tree debris to be removed from the Applicants’ and Respondents’ property after the pruning is performed.
    5. the work required by order be carried out:
      1. initially within 60 days of this order and thereafter not less than annually to maintain the canopies of the trees on the easter boundary to the height and spread of the initial pruning.
      2. by an Australian Qualified Framework level 3 arborist with relevant public liability and work cover insurance cover.
      3. without the use of climbing spurs, climbing gaffs of climbing irons; and
      4. at the Respondents’ cost
    6. If the work is not completed within 60 days, the Applicants may arrange to have the work performed as above.
    7. Should the Applicants be required to arrange the work (and/or the ongoing pruning stipulated above) in default of it being done by the Respondent:
      1. the person(s) undertaking the work is/are entitled to enter the Respondent’s land to carry out the work upon the Applicants giving 14 days written notice of that intention to the Respondent.
      2. the costs incurred by the Applicants engaging a tree lopper and arborist to do the work in default of the Respondent are recoverable from the Respondent as a debt without further notice being required to be given.
    8. These orders remain in force and effect for a period of 10 years from the date hereof.

Footnotes

[1]  Tree Assessment Report of Michael Sowden dated 16 October 2022 at 2.2.2 & 2.2.12.

[2]  The Act, s 3.

[3]  Ibid, s 45.

[4]  Tree Assessment Report of Michael Sowden dated 16 October 2022 at 2.1.2.1

[5]   The Act, s 61.

[6]  Ibid, s 46(b)(i).

[7]  Ibid, s 46(b)(ii).

[8]  Ibid, s 46(a)(i).

[9]  Ibid, s 46(a)(ii)(A).

[10]  Ibid, s 46(a)(ii)(B).

[11]  Ibid, s 46(a)(ii) (C). 

[12]  Ibid, s 48.

[13]  As provided for in the Land Title Act 1994 (Qld), s 48(1)(a).

[14]  The Act, s 52.

[15]  Ibid, s 71.

[16]  Ibid, s 66(2)(a).

[17]  Ibid, s 66(2)(b) (i).

[18]  Ibid, s 66(2)(b)(ii).

[19]  Ibid, s 72.

[20]  Ibid, s 66(3)(a).

[21]  Ibid, s 66(3)(b)(i).

[22]  Ibid, s 66(5)(e).

[23]  Ibid, s 73.

[24]  Tree assessor’s report at paragraphs 4.7 and 4.8.

[25]  [2013] QCATA 304.

[26]  Tree assessor’s report, at paragraph 3.4.3.

[27]  Ibid, paragraphs 3.5 &3.5.1.

[28]  Ibid, paragraphs 3.6-3.6.3 and 4.10.

[29]  Ibid, paragraphs 3.6.1-3.6.3.

[30] Finch v Grahle [2017] QCAT 80.

[31]  Tree assessor’s report, at paragraph 2.2.8.

[32]  The Act, ss 66(3)(a), 66(3)(b)(i).

[33]  Tree assessor’s report, at paragraph 2.3.7.

[34]  Ibid, at paragraph 2.2.3.

Close

Editorial Notes

  • Published Case Name:

    Dunn and Anor v Reynolds

  • Shortened Case Name:

    Dunn v Reynolds

  • MNC:

    [2024] QCAT 45

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    30 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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