Lendjel v Buda[2024] QCAT 599

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicants and the respondents own adjoining suburban properties in Northwood Drive, Burpengary East, north of Brisbane. They share a common side boundary. The applicants own the home at 31 Northwood Drive. The respondents own the home at 33 Northwood Drive.
2. [2]
   The applicants were represented at the hearing by Adrienn Varjas and leave was given for her to do so because English and hearing were a problem for Mr Lendjel. Mrs Lendjel did not attend the hearing. Nor did Mr Buda.
3. [3]
   On 1 August 2022 the applicants filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’) for the pruning or removal of palm trees growing adjacent to and in some instances whose fronds went over the boundary line.
4. [4]
   In the application for a tree dispute filed on 1 August 2022, the applicants:

   1. contended that the dispute in respect of which a remedy was sought arose in a number of ways.
   2. contended that palm tree branches were said to overhang the boundary fence by 1.5 m approximately and the branches restricted vehicle access down the driveway on that side. These overhanging branches were said to be 70 cm and up to 7 m above the ground.
   3. did not contend that the trees had caused any injury to a person but it was contended that the trees had caused serious damage to the applicants’ land in that the tree roots were growing under the driveway and shed slab, pushing up bitumen.
   4. attached photos which show some uplifted bitumen, which appears to be toward the rear off the applicants’ property.
   5. complained that the applicants could not obtain engineer approval for a storage shed that they wanted to build until rectification of the damage to the bitumen on the driveway occurred.
   6. contended that storm water could not go into storm water drainage because it was blocked by tree roots, pushing up the driveway in that location.
   7. contended elsewhere in the application that the shed was unable to be built until the driveway was rectified. Essentially, then the issue concerns what should occur in relation to other hanging palm fronds, and whether, in fact, those palm fonds have been cut back as the respondents and the tree assessor contend that they were.
5. [5]
   Attached to the application was a document described as neighbour dispute and which provided as follows;

   1. There is a very serious problem with overhanging tree branches and tree roots growing under the applicants’ driveway & shed slab. Photos were attached.
   2. The first written Notice to the neighbours was sent on 3rd November 2020. The neighbours’ trees are causing very serious damage to their property.
   3. Tree roots are growing under driveway and shed slab, pushing up the bitumen.
   4. They cannot obtain Engineer Approval for storage shed until the driveway is rectified by their neighbours. They cannot use the shed and cannot operate their business.
   5. Stormwater cannot go into the drainage; it is blocked completely by the tree roots pushing up the driveway.
   6. Overhanging branches have never been cleaned and maintained by the neighbours. The branches restrict the vehicle access to their property.
   7. They cannot drive up on the driveway with a larger size car due to the overhanging palm trees. The pool cleaning company cannot drive in with a larger ute to service the pool.
   8. They have to clean the fallen palm tree leaves on a daily basis, which cause a lot of rubbish and constant mess on their property.
   9. The neighbouring trees have led to them incurring the following costs:
      1. (i)
         1. Removal of tree roots and make good bitumen driveway, with a quote for repair of the bitumen driveway only: $2,475.00. Quotes were obtained in March 2021, with a price increase of 10% $6,270.00 ie $627.00.
      1. (ii)
         2. Cut back to fence line & dispose overhanging branches, with a quote for $770.00.
      1. (iii)
         3. Engineer’s approval for the shed has been delayed from 4th January 2021. The engineer approval cannot be completed until the damaged driveway is rectified, see attached Engineers report. They cannot use the storage shed until it is approved. This causes serious problems to their business. In respect of the cost to build a storage shed at a new location, quotes were obtained for $14,358.25 comprising the supply of a shed: $10,046.00; to erect a shed: $2,500.00; to get approval for it: $1,812.25. The Building Approval was lapsing on 28th February 2022, and they had to apply for six months’ extension and a second final inspection. There is a quote for these fees of $770.00.
   10. They say they cannot operate their business without the storage shed and seek damages due to closing down their business over the last 18 months of $36,000.00.
   11. They say the neighbours are not cooperating with to solve these issues. They have returned all of the registered mails we sent, in unopened condition. They say the neighbours don't want to acknowledge any of the damages they are causing “with their irresponsible behaviour”.
6. [6]
   Self-evidently the principal monetary claims relate to the removal of tree roots and repairing of the Richmond driveway. Some kind of claim is also being made for the cost of building a storage shed. The largest component of the claim is a claim for damages for closing down a business in the amount of $36,000. The causal relationship between these claims and either the tree roots or the palm fronds is not particularly apparent, but seemingly the claim is that they are the claimed result of the damage to the bitumen. An attempt made on the day of the hearing to make a new claim for the entire cost of building a new fence on the fence line was refused.
7. [7]
   There was no articulation anywhere in the material filed by the applicants or in any testimony or submissions made during the hearing which would demonstrate any causal relationship whatsoever between what is complained about in relation to these trees and their roots and the closing down of the business or for that matter, any financial losses associated with it.
8. [8]
   The respondents purchased their land in 2003 from developers Heritage Pacific and built their home on it in 2005. When the previous owners of the applicants’ property 33 Northwood Drive built, over 12 months after the respondents, the respondents were concerned at how close they built to the fence line which left no room for vegetation. They were also concerned about how low they cut into the natural level of the land in their back corner (where the driveway and shed sit) as it was significantly lower than the respondents’ property and the property that backs onto it (17 Buttress Court).
9. [9]
   The respondents contend and I accept that the properties behind theirs and 33 Northwood Drive overflow in heavy rain as their storm overflow outlets allow water to rush onto their blocks, which is possibly a development flaw. They originally had some bamboo on the fence line, but they removed all of this when they became indirectly aware that the previous owners of 33 Northwood Drive were unhappy with it. They then planted some palms along the fence line which in time would give them, and the neighbours, privacy.
10. [10]
    The respondents contend and I accept that the applicants and their family business purchased the property in October 2016 and the property remained unoccupied for over two years. During the second year extensive renovations commenced. These renovations continued for 12 months, turning the house at 33 Northwood Drive into a duplex living arrangement. Renovations also took place in the rear shed of the property, making it into a business or building office. Then a building business was operated from 33 Northwood Drive causing an increased number of vehicles and foot traffic along the fence line.
11. [11]
    In 2020 Mr Lendjel began objecting to palm fronds falling onto his driveway and wanted them removed, or thrown into the respondents’ yard.
12. [12]
    In November 2020 a letter from the applicants requested the removal of a tree which the respondents did in December 2020. They had all trees adjacent to the respondents’ shed removed, and they poisoned all tree roots from the trees removed at a cost of $2,000.
13. [13]
    On 29 December 2020 there was a meeting between the parties during which the respondents made clear that they would not pay for his bitumen repairs as they believed the responsibility should have been on the previous owner for not adding a root barrier, for cutting below the natural land level and for using a poor medium such as bitumen.
14. [14]
    Since the QCAT application was brought, the respondents have significantly trimmed all trees on the fence line, which they had planned to do anyway at this time of year, but did a bigger trim than usual, which has impacted the privacy of their home living areas and pool area. They dispute the claim that bigger vehicles have been unable to access the property due to the trees on the fence line.

The relevant provisions of the ND Act

15. [15]
    Under s 46 of the ND Act land is taken to be affected by a tree only in limited circumstances. Accordingly, the land is only tree-affected if it satisfies one of the following, namely:

2. the tree has caused, is causing, or is likely within the next 12 months to cause—

1. (A)
   serious injury to a person on the land; or

1. (B)
   serious damage to the land or any property on the land; or

1. (C)
   substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;

16. [16]
    The applicants bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act. The tribunal has broad powers 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”.^[1]
17. [17]
    The ND Act defines “tree” to mean any woody perennial plant or any plant resembling a tree in form and size. This definition has been held in case law to include roots and stumps rooted in land and a dead tree.^[2] 
18. [18]
    Land is ‘affected by a tree’ if the tree has caused 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 the land adjoins the land on which the tree is situated. A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[3]
19. [19]
    Under s 66 of the ND Act the tribunal has broad powers to make an order it considers appropriate about a tree to:

1. prevent serious injury to any person;

2. remedy, restrain or prevent serious damage to the Applicants’ land or any property

3. remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicants’ use and enjoyment of the neighbour’s land.

20. [20]
    What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.^[4]
21. [21]
    In Belcher v Sullivan [2013] QCATA 304 Judicial Member Dodds held:

1. [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”.

1. [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.

1. [24]
   Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

22. [22]
    The ND Act s 72 recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved. I am required to consider various matters including the contribution to amenity the trees make to the respondents’ land including their contribution to privacy and protection from noise.^[5]
23. [23]
    I am satisfied that the applicants have met the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act in that they have made reasonable efforts to resolve this dispute prior to commencing this proceeding.

Arborist report

24. [24]
    A Tree Assessor’s report was prepared for the tribunal by Steven Richards after his site visit on 20 February 2023. Neither party called Mr Richards or cross examined him.
25. [25]
    The Tree Assessor’s report describes four “trees” which are actually three trees and a group of 16 Golden Cane Palms assessed for the report as follows.

The long since removed tree

26. [26]
    Tree 1 was a tree of unknown species that was no longer there at the time of inspection. It had been positioned wholly within the respondents’ property and is located approximately 2.5 m from the dividing fence. A retaining wall approximately 400 mm in height, with the cut side being on the applicants’ side, is located within the applicants’ property and does not form part of the dividing fence. A root from the pre-existing, now removed tree, has used the retaining wall and surface beneath the bitumen as a conduit for growth. The compacted conditions from the development in the area had prevented deep rooting and the conditions were favourable for root exploration in the immediate surrounding region at surface level. Aerial photography dated from June 2016 clearly showed a mature canopied tree in-situ.
27. [27]
    In relation to that now removed tree, the Tree Assessor says and I accept that the amount of lift in the asphalt is indicative of many years of root ingress, requiring time to extend the fibrous root into the region and then undergo secondary thickening to the point that upheaval occurs. This would denote that the uplift would have been clearly visible and prominent at when the applicants purchased the home in October 2016.
28. [28]
    The Tree Assessor says and I accept that the cut for the levelling of the applicant's block at the time of construction, would likely have severed roots of the existing tree at the boundary. These severed roots then found conditions favourable for exploitation in the loose, drainage gravel at the rear of the wall. Water which rests beneath the semi-porous asphalt and the compacted subsurface beneath creates an additional conduit for root exploration.
29. [29]
    The Tree Assessor says and I accept that whilst further cracking and upheaval would have occurred from the time of purchase to the time that the tree was removed, based on the extent of upheaval and the length of the root, there is no doubt that visual evidence was clear and damage at the time of purchase considerable. Removal of the tree has subsequently killed the root system however the dead root tissue and the heaved asphalt remains.

The 16 Golden Cane Palms

30. [30]
    “Tree No. 2” is actually a group of 16 Golden Cane Palms, planted along the north side of the respondents’ property on the dividing fence. The palms are wholly located within the respondents’ property and are positioned approximately 1 m from the dividing fence on average. The morphology of the palms is umbrella shaped and the northern facade of the Palms extends across the dividing fence. At the time of inspection, pruning of the fronds had been conducted to create clearance over the applicants’ driveway however certain fronds were only clear to a height of 2 m above the drive level. Whole stems had been removed in certain cases creating a more upright façade. However, this practice needed to be continued for the length of the stand. The stand of Golden Cane Palms lining the property boundary serve as a valuable screening mechanism between the two properties. Correct pruning methodology for long term intervals of management will keep the vista and function of the stand whilst mitigating undesired encroachment.
31. [31]
    The respondents contend and I accept that those whole stems had been removed in certain cases creating a more upright facade and they say, and I accept that they will continue with this practice.

The two multi-stemmed Golden Penda

32. [32]
    Tree No. 3 is a mature, multi-stemmed Golden Penda. It is wholly located within the respondents’ property and is positioned approximately 1.5 m from the dividing fence. At the time of inspection, large pruning wounds were observed which were the result of pruning conducted to reduce the lateral extension and clearance over the applicants’ property. Clearance over the driveway is 4 m and in current standing this tree was considered managed and will not interfere within the next 12 months.
33. [33]
    Tree No. 4 is another mature, multi-stemmed Golden Penda. It is also wholly located within the respondents’ property and is positioned approximately 2.5 m from the dividing fence. At the time of inspection, large pruning wounds were observed which were the result of pruning conducted to reduce the lateral extension and clearance over the fence. That tree was also considered managed and would not interfere within the next 12 months.

Work required to the palms and disposition of the application

34. [34]
    The Tree Assessor’s report says, and I accept that the leaning Golden Cane stems on the northern facade of the stand of golden palms should be removed in their entirety to upright stems. This practice will completely remove overhanging stems and fronds encroaching upon the applicants’ property, whilst also maintaining a leafy aspect from that perspective and leaving the vista unchanged from the respondents’ vantage. The Tree Assessor’s report says, and I accept that the removal of these stems will have no long-term detrimental impact on the palm clumps as a whole. New shoots will emanate from the base of the clumps taking several years to grow however management of these shoots will be a simple task.
35. [35]
    As to whether the applicants’ land is affected by the trees, the tree assessor concluded and I accept that at the time of his assessment, there were no significant impacts to the applicants’ property, or their enjoyment of said property. The respondents have clearly spent time and money to ensure that very little foliage extends into the applicants’ property. If the trees continue to be maintained in this manner, then in my opinion there is no further arboricultural work required.
36. [36]
    I also reject the contention that the trees have damaged the bitumen driveway since the applicants bought their property and prefer the arborists’ opinion about this to the assertions made by the applicants.
37. [37]
    In relation to the leaning palm stems which the Tree Assessor has suggested be removed to ground level to create an upright stand, the respondents conceded as early as May 2023 that they would address those stems and organise removal themselves as they had done for many previous years. They resisted an order that an arborist be required to remove those because they had been able to deal with those trees themselves and had already previously spent in excess of two thousand dollars in removal of trees some four years ago. They have undertaken to produce the outcome which is referred to in sections 2.4 and 4 of the arborist's report, namely that the northern facade of the stand of palms should be removed in their entirety to upright stems. So, this would mean completely removing overhanging stems and fronds encroaching upon the applicants’ property, whilst also maintaining a leafy aspect from that perspective and leaving the vista unchanged from the respondents’ vantage.
38. [38]
    The Tree Assessor suggests that an arborist do this work to the stems on the northern facade of the stand of golden palms to make them upright stems, however I am not persuaded that the expense of an arborist is warranted for the maintenance of these golden cane palms.

Removal of palm fronds falling on the applicant’s driveway

39. [39]
    At the hearing, the applicants sought to tender a substantial body of a new material, some of which raised claims for an entitlement to be reimbursed for the cost of erecting a new fence.
40. [40]
    Reliance upon that material was not permitted although the applicants were permitted to tender photographs taken of the driveway adjacent to the palms and which showed that in storms that week, palm fronds had been cast over the fence line and onto the applicants’ driveway. Those photographs show five such fronds however ordinarily, these would not cause much of an issue as they are demonstrably relatively light and smallish fronds that an able-bodied person would have no real issue in picking up and binning them or putting back over the fence line. The fact is though, that due to Mr Lendjel’s age and frail health, this creates an obvious problem.
41. [41]
    I am confident that the respondents can be relied upon to attend to the removal of those from time to time once notified of their presence.
42. [42]
    Accepting and applying the approach identified above in Belcher v Sullivan [2013] QCATA 304 by Judicial Member Dodds, I am not satisfied that the damage to the driveway has been caused by any of these trees that remain there nor that root entry across the boundary has caused any or any serious damage of any kind nor amounted to on-going and unreasonable interference with the applicants’ use and enjoyment of their land which was substantial.
43. [43]
    During the hearing, the respondents acknowledged the issue with high level overhanging palm fronds and undertook to cut a lot of the palm tree stems now that a new fence has been constructed. I consider that it is inappropriate to order the removal of those overhanging palm fronds so there is no encroachment. The respondents have undertaken that they will cause the palm stems to be removed to ground level to create an upright facade on the northern periphery to prevent encroachment over the applicants’ property. I will give the parties liberty to apply in respect of the application should that maintenance not occur and I will consider making formal orders in that regard.
44. [44]
    The respondents have also said they will reduce the number of palms as well along that fence line and would do that between now and February as well as trim or remove the Golden Penda trees.
45. [45]
    Even if I had been persuaded that it was serious damage or amounted to on-going and unreasonable interference with the applicants’ use and enjoyment of its land which was substantial, it does not follow that the trees must now be lopped or kept to some particular height. Under s 66 of the ND Act the tribunal has broad powers to make an order it considers appropriate about a tree to remedy a situation where that situation was held to exist. There are other remedies available to deal with that interference or potential further interference in the future, including the applicants trimming any overhanging or protruding foliage.
46. [46]
    I am not satisfied that an order for removal trimming or height limitation of the trees is required or desirable to remedy, restrain or prevent serious damage to the applicants’ land or any property. Nor am I satisfied that removal of the trees is required or desirable to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land.
47. [47]
    I accept that the damage which has been caused to the bitumen was caused by the manner of construction of improvements on what is now the applicants’ property and that it has resulted from inadequate construction or engineering detail. The damage to the bitumen has not been caused in any sense by the conduct of the respondents in any way which sheets home responsibility to the respondents.
48. [48]
    I refuse to order compensation in respect of any of the other claims for relief or  damages or compensation which the applicants have asked for in the application, and particularly those set out above namely the cost to make good the bitumen driveway, the claimed cost to build a storage shed at a new location, costs related to the building approval lapsing or damages due to closing down a business because there is no foundation shown for any of them.
49. [49]
    For those reasons I refuse the application.
50. [50]
    I order that the application filed 1 August 2022 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is dismissed.
51. [51]
    I grant the parties liberty to apply in respect of these orders or any ancillary issues that arise in consequence of the findings I have made.