CT v PC[2024] QCAT 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Applicant and Respondent are neighbours sharing a dividing fence between the two properties. The Applicant lodged an application in this Tribunal on 23 July 2021 claiming that:

   1. Trees on the Respondent’s property have caused substantial, ongoing and unreasonable interference with their use and enjoyment of their land due to:
      1. Severe obstruction of sunlight to the main window of the living area.
      2. Obstruction and interruption of access to natural breeze/ventilation.
      3. Severe obstruction of view that existed when purchased house.
      4. Excessive leaf litter likely to be generated from bamboo plants, likely to affect the outdoor living space within the next 12 months.
   2. The trees are bamboo which were planted on 28 February 2021 by the Respondent to obstruct the view of the retaining wall and fence without notice or consultation with the Applicant.
   3. The Applicant attempted to resolve the dispute by face-to-face meeting, SMS  and email correspondence exchanged from 1 March 2021 to 8 April 2021.
   4. Given the growth potential of the bamboo, the trees need to be removed as pruning will be ineffective.
2. [2]
   The Applicant sought the following orders:

   1. To remove the trees.
   2. In the alternative, to remove or prune the branches of the trees to 2.5 metres, with maintenance pruning every 6 months to the same level.
   3. An order that a person can enter the land to carry out the order.
   4. An order that a person can enter the land to obtain a quote to carry out the order.
   5. An order the Respondent pay the costs for carrying out these orders.
3. [3]
   The Respondent lodged a response with the Tribunal on 20 August 2021 stating:

   1. The Respondent denies that the trees currently have any effect on the Applicant’s use or enjoyment of their land, or that it will in the future, in that:
      1. There is no current obstruction to the windows and as the Applicant’s and Respondent’s houses have a North South aspect the tree will have no impact on the light.
      2. Natural breeze will not be affected by the trees.
      3. While there may be some obstruction of view in the future, the view is not significant in nature, is not enjoyed by the other neighbours in the area, and is partially obstructed by the Applicant’s trees which extend well above the fence line.
      4. Excessive leaf litter is not relevant and is generally not sufficient to justify an order.
   2. The Respondent has maintained and intends to continue to maintain the trees and has advised the Applicant of his intention to maintain the trees.
   3. There is ongoing animosity between the Applicant and the Respondent over previous renovation plans and building approvals.
   4. The main purpose of the planting was to create a green wall effect that covered an unsightly 3 m high fence constructed out of 5 different types of material and to provide a level of privacy from the Applicant’s property due to the height of their back deck which overlooks into the Respondent’s backyard and bathroom.
   5. Reasonable efforts were not made by the Applicant to reach an agreement before lodging the QCAT application as they only ever requested the Respondent to remove the Bamboo rather than pruning.
4. [4]
   The Respondent sought the Tribunal dismiss the application and make no orders as the trees will be maintained and do not impact the Applicant’s property now and will not in the next 12 months.
5. [5]
   A non-publication order was made by the Tribunal on 6 December 2021 prohibiting the publication of the name or contact details of the Applicant.

Statutory framework

6. [6]
   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.^[1]
7. [7]
   The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.^[2] 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.^[3]
8. [8]
   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.^[4] The affected land must adjoin the land on which the tree is situated^[5] or would adjoin the land if it were not separated by a road.^[6] As the Applicant 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.
9. [9]
   Land is affected by a tree if branches from the tree overhang the land;^[7] 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,^[8] serious damage to the land or property on the land,^[9] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[10]
10. [10]
    The Act provides for who is a tree-keeper.^[11] That is, if the land on which the trees are situated is a lot recorded in the freehold land register.^[12] For the purposes of this application, the trees are all situated on the land belonging to the Respondent, therefore the Respondent is the tree-keeper for all the trees subject to the application.
11. [11]
    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.^[13] The primary consideration for the Tribunal in deciding an application is safety.^[14]
12. [12]
    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,^[15] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,^[16] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[17] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[18]
13. [13]
    For interference that is an obstruction of sunlight or view the tree must rise at least 2.5 metres above the ground^[19] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land, or a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.^[20]
14. [14]
    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.^[21] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.^[22]

Tree Assessor’s Report

15. [15]
    On 22 May 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.
16. [16]
    On 24 May 2022, Mr David Gunter, the Tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 25 May 2022. Relevantly, the report states:

    1. The jurisdictional issues are met in that the property meets the provision of s 42 of the Act, the trees met the definition of trees under s 45, the Applicant’s 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.
    2. In relation to the whether the Applicant’s land is affected by the trees, some culms encroach into the view from the Applicant’s deck and dining area, but the current encroachment is relatively minor. Further growth of the subject trees is predicted to be relatively rapid in the species and further encroachment is expected within 12 months.
    3. The subject trees are 7 Bambusa Oldhami “dwarf” trees, planted 12 months prior, and are relatively young but show good vitality. They are not uniform in height and exhibit some individual culms which do encroach into the view from the Applicant’s deck. Future growth of all trees to the height of these culms would completely obstruct the view from the Applicant’s property and significantly increase shade in the Applicant’s rear yard and deck area.
    4. The retaining wall which is situated on the property boundary fence is unsightly and future growth of the bamboo clumps would provide an attractive screen and become a significant landscape feature.
    5. Plants on the Applicant’s side of the property boundary fence encroach on the view to a greater extent than the subject trees at this stage.
    6. The Respondent indicated they are happy to maintain the trees to an agreed height provided their privacy is not compromised.
    7. While there are some minor impacts to the Applicant’s property, these are not considered unmanageable, and the removal of the trees is not required.
    8. Both parties agreed that maintenance to control the growth and eventual height of the subject trees would be required. However, the final cut height is in dispute.
    9. The height of the top of the dividing fence on the Respondent’s property is 3.2 metres. A cut slightly above that would appear to be ideal for the species and provide additional privacy to the Respondent.
17. [17]
    The Tribunal made directions on 19 July 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 12 August 2022.
18. [18]
    The agreement was not signed and on 5 September 2022 the Tribunal made filing directions about filing of further evidence.
19. [19]
    In compliance with the directions, on 12 October, the Applicant filed a three-page affidavit  written by herself and a two-page affidavit from her husband TT which contained two attachments, being emails containing correspondence between TT and  the Respondent about the trees (which are largely a duplicate of the information provided in the response to the application lodged by the Respondent) and copies of printouts from the internet in relation to bamboo. Both affidavits largely reiterate the information in the application and confirm the Applicant and her husband’s concerns about the trees having an adverse impact on their property, although no specific information or evidence is provided other than referencing the application and the Tree assessor’s report.
20. [20]
    The Applicant and TT both assert the Respondent had not advised them of what type of bamboo was planted which caused them stress and they state in the sworn affidavits that “the Respondent had not provided any written evidence or details to me or in these proceedings in respect to the genus of the bamboo trees” (Emphasis added).
21. [21]
    It is unknown whether the Applicant and TT had not received and/or had not read the response to the application lodged on 20 August 2021, but the statement is not correct, and the Respondent clearly confirmed in annexure B question 35(j) contained within the response lodged with the Tribunal that the plants are Bambusa Oldhami dwarf trees.
22. [22]
    In compliance with the directions, on 9 February 2022, the Respondent filed a three-page affidavit with three exhibits, being current photos of the bamboo, printouts from the internets of bamboo growth research the Respondent had undertaken, and a photo evidencing the Applicant’s plants coming through the dividing fence on to the Respondent’s property. The Respondent’s affidavit largely details the information in the Response lodged and provides detail of the Respondent’s maintenance of the bamboo to date and intention to continue to maintain the trees, his research into the growth habits of bamboo, and concerns he has about the Applicant’s trees overhanging and growing on his property and on the dividing boundary fence.
23. [23]
    On 23 November 2022 in reply the Applicant filed a further two-page affidavit from her husband TT containing one exhibit, being further internet searches about bamboo growth. The affidavit reiterated TT’s concerns in relation to the growth of the bamboo, gave details as to the height of the bamboo at present (but provided no photographs to evidence it,) stated he was unaware of the Respondent’s intention to maintain the bamboo, or that he has been actively maintaining it, and provided his response to the Respondent’s concerns about the Applicant’s trees.
24. [24]
    The affidavit states that since the application has been filed, neither TT or the Applicant have been given any written or verbal assurance of the Respondent’s intent to commit to maintaining the bamboo. It is noted however that exhibit TST-1 to the affidavit of TT dated 12 October 2022 contains emails from the Respondent on 16 March 2021 and 24 March 2021, before the application was filed, confirming the Respondent’s intention to maintain the bamboo. The Respondent also states in the response lodged on 20 August 2021 at question 23 and 34(i) that he intends to maintain the bamboo and this information was reiterated to the Tree assessor by the Respondent on 24 May 2022.
25. [25]
    On 6 February 2023 the Tribunal directed the parties to advise the Tribunal of the outcome of their ongoing negotiations by 6 March 2023 and directions were made for filing of further material. Neither party complied with the direction nor filed any further material. The Tribunal also directed the matter would be determined on the papers without an oral hearing. This is that decision.

Findings of the Tribunal

26. [26]
    Consideration was given to whether the application should be dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) due to the failure by the Applicant to advise the Tribunal of the outcome of the negotiations and comply with any further filing directions. However, given the order was made to both parties and there was no guillotine clause which put the parties on notice it may be dismissed for noncompliance, the Tribunal considered it would not be procedurally fair to do this, and has determined the matter on the merits.  
27. [27]
    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 Applicant and Respondent are the registered owners and appropriate parties, and the trees are primarily on the Respondent’s property making the Respondent the tree-keeper. As it is alleged that the land is affected by the trees due to the trees causing a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, there is jurisdiction for the Tribunal to hear this matter.^[23]
28. [28]
    As the Applicant is seeking the trees be removed, s 72 of the Act has been considered, which recognises the importance of trees in residential neighbourhoods and makes it 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 Respondent’s land and their contribution to privacy and protection from noise,^[24] and have taken into account the requirements under s 73 to the extent that is required and the findings in the Tree assessor’s report in relation to this, and the Respondent’s evidence on why he planted the trees. The trees have been trimmed in the past, and there appears to be no requirement for approval from the local council for pruning or removal; there is no evidence that the trees are of any particular historical, cultural, social, or scientific value.
29. [29]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied the Applicant has 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 do not relate to the Applicant’s land being affected because branches from the trees overhang the land and the Applicant has given the copies of the application to the Respondent as required under s 63 of the Act.
30. [30]
    In terms of whether the Applicant’s land is affected by tree as required under section 61 of the Act, the Applicant does not allege that there are any overhanding branches or that the trees cause or are likely to cause serious injury or property damage within 12 months, so the only issue is whether the trees are causing substantial, ongoing unreasonable interference with the Applicant’s use and enjoyment of their land. Whether there is substantial, ongoing and unreasonable interference with the Applicant’s property is the primary issue in this matter.
31. [31]
    What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,^[25] Judicial Member Dodd said:

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

Unreasonable interference from leaf litter

32. [32]
    I accept that there could be some interference with the Applicant’s use and enjoyment of the land arising out of plant matter dropping onto their property. However, there has been no evidence provided by the Applicant, such as photographs, to evidence the degree of any leaf litter. The Applicant has not alleged that this was a current issue at the time the application was filed, only that excessive leaf litter is likely to be generated from the trees, impacting the Applicant’s outdoor living areas in the future.
33. [33]
    The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the Applicant’s use and enjoyment of the land.^[26] Maintenance of the Applicant’s property is their responsibility. For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds, or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
34. [34]
    Whilst no doubt inconvenient, leaf litter is a natural incident of suburban living. The Tree assessor’s report did not identify any evidence of substantial or excessive leaf litter and there is no other evidence to demonstrate that it has or is likely to cause substantial, ongoing and unreasonable interference within the next 12 months. As such I am not satisfied the leaf litter on the Applicant’s land is causing or likely to cause substantial, ongoing, and unreasonable interference with the Applicant’s use and enjoyment of the Applicant’s land within the next 12 months.

Unreasonable interference – Obstruction of sunlight

35. [35]
    The Applicant alleges the trees are causing, substantial, ongoing, and unreasonable obstruction of sunlight to the windows of the main living area, outside deck, and dining area of the Applicant’s home, as well as obstructing access to the natural breeze/ventilation. In the circumstances, I have considered the matters set out in s 75 of the Act.
36. [36]
    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.^[27]
37. [37]
    Based on the Tree assessor’s report, I am satisfied that the trees in this matter do rise at least 2.5 metres above the ground and part of the obstruction of sunlight alleged is in relation to the Applicant’s windows. While the Applicant also alleged the trees obstruct the sunlight to the deck, this is not relevant to the consideration as only obstructions to windows or the roof meet the statutory criteria.
38. [38]
    The Applicant provided no independent evidence in the form of any photographs or expert evidence to demonstrate any substantial obstruction of sunlight at present or that it is likely to occur within 12 months. The tree assessment report does not support finding of any current substantial obstruction, noting any impacts are minor and manageable. The tree assessment report also provides no evidence of any impact on the sunlight to the Applicant’s windows by future growth of the trees, referencing only shading to the yard and deck area.
39. [39]
    Other than raising concerns about the height the Palms can grow to, there was no evidence provided by the Applicant in terms of any impact to the natural breeze or ventilation. As such there is insufficient evidence to demonstrate any substantial, ongoing and unreasonable interference of the trees based on this concern.
40. [40]
    In the circumstances, as there is no other independent evidence to contradict the Tree assessor’s report, which raises no significant concerns in terms of obstruction of sunlight to the Applicant’s window or impact on the natural breeze, and states that there are only minor impacts that are manageable and the removal of the tree is not required, and that there would only be an impact if there was future growth to the height of the current culm, (although the Respondent has indicated thy are happy to maintain the trees provided privacy is not compromised), there is insufficient evidence to demonstrate that the Trees are or will in the next 12 months cause substantial, ongoing and unreasonable obstruction to sunlight or natural breeze.

Unreasonable interference – Views

41. [41]
    It is well established that in Australia, there is no general right to a view.^[28] The Act creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act.^[29]
42. [42]
    The Act makes it clear that there is a three-step process which the Tribunal must follow when determining applications for orders under s 66(3)(b)(ii) of the Act. Firstly, the Tribunal must consider what view existed when the Applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, sections 72, 73 and 75.^[30]
43. [43]
    In terms of the first step there is a lack of evidence from the Applicant as to what the view was that existed at the time she took possession. She has not provided the Tribunal with any evidence of this fact in terms of photographs, or the For-Sale information, and the Applicant makes little mention of the state of the views at the time she took possession. As such it is not known what the height or volume of either the Applicant’s trees or any trees on the Respondent’s property were at that time.
44. [44]
    In terms of whether the Respondent’s trees are causing a severe obstruction, the Tribunal has noted that ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. During Parliamentary Debates, the then Attorney General commented: ‘The severity threshold requires that the view must be nearly blocked out.’ Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.^[31]
45. [45]
    There is no evidence before the Tribunal that there is a severe obstruction of the Applicant’s view. The Applicant has provided no independent evidence of this allegation and has not even provided photographs to demonstrate her view of the trees. The only photographs provided of the trees and the Applicant’s view are in the Tree assessor’s report and from the Respondent.
46. [46]
    The Tree assessor’s report does not support the assertion that there is severe obstruction of the Applicant’s view. It describes the impacts as minor and notes that the Applicant’s own plants encroach into the Applicant’s view to a great extent than the Respondent’s trees.
47. [47]
    While the Tree assessor’s report does state that future growth of the trees to the height of the culms would completely obstruct the views of the Applicant, no timeframe is provided for how long it would take for the trees to grow to this level. As such I could not be satisfied that this is likely to occur within 12 months. In addition, the Respondent has advised that they intend on maintaining the trees, which also makes it difficult to find it likely that the trees would cause a severe obstruction within 12 months.
48. [48]
    While it is clear on the evidence that the Applicant is very concerned about the potential growth of the trees and that the Respondent will not maintain the trees, this concern does not appear to be founded in evidence.
49. [49]
    The Respondent advised the Applicant’s husband TT in writing, before the application was made, on 16 March 2021 and 26 March 2021, that he intends to maintain the Bamboo plants. These emails are attached to both the response filed by the Respondent and TT’s affidavit filed on behalf of the Applicant. In the response filed on 20 August 2021 in question 32, 35(l) and Annexure c question 6, the Respondent again confirmed that he intends on maintaining the tree. The Tree assessor noted in their report dated 27 May 2022 that the Respondent had confirmed that he is happy to maintain the trees at an agreed height, provide that his privacy is not compromised. In the Respondent’s affidavit dated 9 November 2022 he confirmed that he had been maintaining the bamboo and intended to maintain the bamboo trees in the future to ensure they did not impact on the Applicant’s property.^[32]
50. [50]
    The Respondent has provided photographs of the trees, taken on 28 October 2022. When comparing these photographs with those in the Tree assessor’s report taken 5 months earlier, the trees appear to be no larger and in fact the culms look smaller. which would seem to support the Respondent’s statement that he has been maintaining the trees.
51. [51]
    The Applicant provided no evidence to support her view that the Respondent will not maintain the trees and they are likely to cause a severe obstruction within 12 months, other than that she does not believe him. In the circumstance, given the Respondent’s consistent advice he will maintain the trees and the photograph evidence provided to support this, I prefer the Respondent’s evidence.
52. [52]
    As such I find that there is no evidence that the trees will likely cause a severe obstruction to the Applicant’s view given the Respondent intends to maintain the trees to prevent them growing too high and causing a severe obstruction.
53. [53]
    Accordingly, there is no evidence to satisfy me that the trees cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land due to a severe obstruction of a view, as there is no evidence to find that there is a severe obstruction of a view of any kind now, or that it is likely within the next 12 months, nor is there evidence of what the view from the Applicant’s dwelling was at the time the Applicant took possession of the land.

Respondent’s concerns

54. [54]
    The Respondent has raised concerns about the Applicant’s trees impacting on his property in his affidavit dated 9 November 2022.^[33]
55. [55]
    The Respondent has not filed any application or counter claim in relation to the trees, nor was there any evidence that the legislative requirement has been complied with. 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

56. [56]
    Based on the lack of evidence to support the Applicant's claim that there is a severe obstruction of sunlight or view, or that leaf litter is causing an unreasonable interference, either now or in the next 12 months, I am unable to find that the Applicant’s land is affected by the subject trees due to substantial, ongoing and unreasonable inference with the Applicant’s use and enjoyment of their land.^[34]
57. [57]
    As there is no severe obstruction, I am unable to make an order dealing with any interference.
58. [58]
    There were no submissions by either party on costs and the starting position in the Tribunal is that each party usually bears their own costs, unless it is in the interest of justice to make a costs order.^[35] As the application was unsuccessful, it would not be in the interest of justice to make a cost order in favour of the Applicant, and there is no evidence before the Tribunal of any costs incurred by the Respondent, noting the Applicant paid the contribution towards the Tree assessor’s report. Accordingly, I make no order in relation to costs.
59. [59]
    For these reasons I refuse to make any orders and I order that the application is dismissed.