Ciottariello v Hoole[2025] QCAT 65

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this proceeding about?

1. [1]
   This proceeding is about a tree dispute. Mr Ciottariello complains about five trees situated on Mr Hoole’s and Ms Hoole’s land which he says are affecting his land. The proceeding has been progressing in the Tribunal since 2020. The dispute now falls to be finally determined on the papers.

Jurisdiction

2. [2]
   I make the following findings:

   1. Mr Ciottariello is a ‘neighbour’;^[1]
   2. Mr Hoole and Ms Hoole are ‘tree keepers’;^[2]
   3. Five trees, the subject of the dispute, are situated on Mr and Ms Hoole’s land (collectively referred to as the trees);^[3]
   4. The trees are:^[4]
      1. Tree 1: Spotted gum
      2. Tree 2: Spotted gum
      3. Tree 3: Spotted gum
      4. Tree 4: Spotted gum
      5. Tree 5: Grey gum.
3. [3]
   In these reasons I will refer to Mr Ciottariello as the neighbour and Mr and Ms Hoole as the tree keepers.
4. [4]
   The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged, as at the date of the application to the Tribunal, land is affected by a tree.^[5]
5. [5]
   Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) (‘ND Act’) provides:

46 When is land affected by a tree

Land is affected by a tree at a particular time if—

1. any of the following applies—

1. branches from the tree overhang the land;

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

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

2. serious damage to the land or any property on the land; or

3. substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

2. the land—

1. adjoins the land on which the tree is situated; or

2. would adjoin the land on which the tree is situated if it were not separated by a road.

6. [6]
   In the originating application the neighbour alleges, among other things, that the trees have caused a substantial, ongoing and unreasonable interference with the use and enjoyment of his land. This interference is said to take the form of leaf litter and the obstruction of sunlight to the solar panels on the roof of the dwelling on the neighbour’s land. The Tribunal may make an order about the trees under s 66 of the ND Act if the Tribunal is satisfied that, inter alia, the neighbour has made a reasonable effort to reach agreement with the tree keeper.^[6] This requirement may be satisfied before or after a proceeding has been commenced. The parties have participated in a compulsory conference. I am satisfied that the requirements of s 65(a) of the ND Act have been met. There is nothing before the Tribunal to suggest that s 65(b), s 65(c) or s 65(d) of the ND Act are relevant to the jurisdiction of the Tribunal to decide the dispute.
7. [7]
   I am satisfied that the Tribunal has jurisdiction to decide the dispute.

The independent assessment of the trees

8. [8]
   The Tribunal engaged an assessor to assess and report on the trees.^[7] A report was prepared by Mr Michael Sowden, a certified arborist.^[8] Mr Sowden:

   1. Identified the trees:^[9]

2. Noted that the canopies of trees 1, 3 and 4 were overhanging the neighbour’s land;
3. Noted that multiple deadwoods were present in the trees, some exceeding 50mm in diameter;
4. Opined that several of the trees had been the subject of past pruning resulting in multiple pruning wounds displaying various amounts of wound compartmentalisation and several elongated stubs on the southern sides causing epicormic growth;
5. Noted that on the ground surfaces of the neighbour’s land and on the roof of the neighbour’s dwelling tree debris had accumulated consisting of smaller twigs and leaves;
6. Noted that the leaf and twig debris on the roof of the neighbour’s dwelling had been captured by existing gutter guards which were operating as designed;
7. Opined that the amount of debris present within the neighbour’s land could be adequately maintained within normal levels of routine maintenance required for an urban property;
8. Opined that the deadwoods within the trees and the weakly attached epicormic growth that had developed around the wounds of the extended stub cut limbs on the southern side of the canopies had the potential to fail within the ensuing 12 months and had the potential to impact within the neighbour’s property;
9. Opined that the trees were partially shading the solar panels on the roof of the neighbour’s dwelling during nearly all daylight hours starting with tree5 in the morning and continuing through to tree 1 in the evening;
10. Opined that the amount of partial shading would be variable depending on the varying foliage covering of the trees which would be from dense to sparse depending on the time of year and growth conditions;
11. Opined that the poor condition of the solar panels was an additional potential factor in the alleged reduced function of the panels. Mr Sowden observed the presence of ‘thick lichen indicating minimal to no maintenance has been performed to allow for their maximum efficiency given their location’;

9. [9]
   Mr Sowden, noting that the trees had been the subject of previous pruning works, states in his report:

   1. The previous pruning to the trees was not carried out in accordance with the applicable Australian Standard;
   2. Multiple elongated stubs on the southern sides of the canopies had been left. Leaving elongated stub cut limbs removes the ability of the tree to compartmentalise wounds at the branch collar, allowing for pathogen ingress through the open wounds, typically resulting in epicormically attached regrowth which develops around the perimeter of the pruning wounds as a stress response;
   3. Epicormically attached branches are highly likely to fail as they develop as a result of weak attachment point and strength;
   4. As there are multiple epicormically attached branches throughout the southern canopies of the trees, the failure of any of the branches represented a significant risk to the neighbour’s property throughout the southern side canopies of the trees.
10. [10]
    Mr Sowden made a number of recommendations in relation to the trees:

    1. The total removal of the trees could not be justified arboriculturally;
    2. Pruning works as set out in his report would, if undertaken, satisfactorily resolve the issues raised by the neighbour;^[11]
    3. Ongoing maintenance would be required at intervals not exceeding 18 months to maintain the southern canopies to the extent of the initial pruning. Additional maintenance should be performed involving the removal of all deadwoods greater than 25mm in diameter;
    4. The recommended works would require less than 20% of individual canopy removal from trees 1, 2, 3 and 4 and could likely be performed within the requirements of the Brisbane City Council Natural Assets Local Law 2003.

What do the parties say?

11. [11]
    The parties have each filed submissions. I have considered the totality of those submissions. 
12. [12]
    The neighbour’s position may be summarised thus:

    1. The trees deposit significant amounts of leaf litter^[12] on the neighbour’s land as a result of which he must undertake extensive maintenance to clean up the litter, including the roof and gutters of his dwelling;
    2. The presence of the trees and the resultant leaf litter has caused or contributed to the presence of lichen on the dwelling roof and the solar panels fixed to the roof;
    3. The presence of the trees prevents the effective operation of a TV satellite dish if one is fixed to the dwelling roof;
    4. The maintenance required to be undertaken by the neighbour to address the leaf litter deposited by the trees has resulted in an exacerbation of the pre-existing medical condition suffered by the neighbour;
    5. The trees pose a risk of serious damage to the neighbour’s land and property on the land and serious injury to persons if the trees or large limbs from the trees fall.
13. [13]
    The tree keepers’ position may be summarised as follows:

    1. The tree keepers are not responsible for any exacerbation of the neighbour’s pre-existing medical condition the result of maintenance duties undertaken by the neighbour related to the trees;
    2. The leaf litter from the trees is not excessive;
    3. The solar panels on the roof of the neighbour’s dwelling have been positioned on the incorrect side of the roof. Had the solar panels been installed on the far side of the roof, direct sunlight would be available most of the year;
    4. The solar panels are in poor condition and have not been maintained by the neighbour;
    5. The tree keepers had undertaken pruning works to the trees in 2016;
    6. Further pruning work on the trees was undertaken in April 2023 in accordance with the recommendations in Mr Sowden’s report. This work included both pruning and the removal of deadwood.

Discussion

14. [14]
    Before proceeding to address the substantive issues it is necessary to deal with a number of preliminary matters.
15. [15]
    The tree keepers have filed an application for orders that the neighbour’s submissions relating to his medical condition (to which I will refer later in these reasons) be disallowed. The application is refused. The relevance of, and the weight to be given to, the submissions will be addressed in these reasons.
16. [16]
    The tree keepers have filed an application for orders that the neighbour’s complaints about the impact of the trees on the solar panels be dismissed. The application also attaches various photographs of the trees and contains additional submissions about the trees. The Tribunal made directions for the parties to file any additional evidence and written submissions by stated dates.^[13] The parties complied with the directions. The tree keepers subsequently filed the further application. The application is refused. If the tree keepers wished to rely on further evidence or make further submissions they had the opportunity to do so.
17. [17]
    The neighbour seeks to rely upon the contents of two USB devices. Parties may file electronic evidence in the form of photographs, video and audio recordings subject to compliance with the relevant Practice Direction.^[14] The Practice Direction provides, inter alia, that audio, video or photographs must be in one of a number of specified formats. The USB devices filed by the neighbour include photographs and videos. The videos are not in a format specified in the Practice Direction. Accordingly, the videos will not be considered.

Orders the Tribunal may make about trees

18. [18]
    The Tribunal may make the orders it considers appropriate to in relation to a tree affecting a neighbour’s land:

    1. to prevent serious injury to any person; or
    2. to remedy, restrain or prevent—
       1. serious damage to the neighbour’s land or any property on the neighbour’s land; or
       2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[15]
19. [19]
    I will address each of the complaints made by the neighbour about the trees:

Leaf litter

20. [20]
    It is well established in the Tribunal that the presence of leaf litter deposited by a tree will, generally speaking, not be sufficient to form the basis for an order about the tree. As was observed in Thomsen v White,^[16] decided soon after the introduction of the ND Act, the presence of trees in urban locations requires all residents to take some responsibility for cleaning gutters and leaf litter on a regular basis.
21. [21]
    I accept the opinion of Mr Sowden that the leaf litter deposited by the trees onto the neighbour’s land could be adequately dealt with by routine maintenance by the neighbour. The various photographs filed by the neighbour depicting leaf litter on his property including on the roof of his residence support rather than contradict the opinion of Mr Sowden regarding the extent of the leaf litter deposited by the trees. 
22. [22]
    The neighbour makes extensive submissions about his medical condition and the impact the condition has on his ability to address the impact of the trees on his property. The majority of this impact is said to relate to cleaning up leaf litter. The neighbour says that the ongoing presence of leaf litter from the trees constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of his land.
23. [23]
    In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford (‘Neverfail’)^[17] the Appeal Tribunal considered the following matters to be relevant in determining whether an interference is a substantial, ongoing and unreasonable one for the purposes of s 66(2)(b)(ii) of the ND Act:

    1. What is the nature and extent of the harm or interference said to be caused by the tree?
    2. Is the neighbour abnormally sensitive to the harm or interference said to be caused by the tree?
    3. Have all reasonable steps been taken by the tree keeper to minimise the harm or interference said to be caused by the tree?
    4. What is the type and extent of damage claimed to have been suffered by the neighbour?
24. [24]
    As the Appeal Tribunal noted in Neverfail, the common law requirements for establishing nuisance are a substantial and unreasonable interference with the use and enjoyment of land. The test is an objective one.^[18] As was also noted in Neverfail an abnormally sensitive person is not entitled to additional protection as a result of the person’s sensitivity.^[19] This qualification is particularly relevant in the present case.
25. [25]
    Section 66 must be construed according to the words of the section and in the broader context of Chapter 3 of the ND Act which deals with trees. Section 52(2) of the ND Act provides that a tree keeper is responsible for ensuring that a tree does not cause serious injury to a person or serious damage to a person’s land or any property on a person’s land or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land. This may appear to impose upon a tree keeper a strict liability in respect of trees situated on their land. Section 52(2) is however qualified by s 52(3) which provides that s 52 does not create a civil cause of action based on a breach of a tree keeper’s responsibility. The note to s 53(3) further clarifies the intended effect of the provision: ‘This section is intended to help a tree-keeper and neighbours resolve any issues about a tree without a dispute arising. However, this section does not create a separate cause of action.’
26. [26]
    The ND Act provides a remedy for an owner or occupier of land who asserts that their land is affected by a tree or trees on neighbouring land. In the absence of agreement being reached to resolve the issues, the owner or occupier may apply to the Tribunal. The Act however encourages parties to try to resolve disputes without the need to apply to the Tribunal.
27. [27]
    The wording of s 66(2)(b)(ii) reflects the common law requirements for establishing nuisance. As I have noted, the common law test for nuisance is an objective one. Applying the section objectively ensures that a proper balance is struck between the interests of both tree keepers and neighbours. Trees are an integral part of the urban landscape. If s 66(2)(b)(ii) is given a subjective application there is potential for tree keepers to have cast upon them an unfair and enlarged burden to maintain the trees on their land that might change according to the subjective circumstances of a neighbour.
28. [28]
    Support for the preferred meaning of s 66(2)(b)(ii) may be found in the Explanatory Notes to the original Bill. It was noted in the Bill^[20] that: ‘(t)his clause ensures that the object of the Bill, to provide a statutory remedy for a nuisance caused by trees growing in the neighbourhood, is not affected or frustrated by unsettled methods of calculating the monetary value of trees for natural asset purposes or carbon trading’ (emphasis added).
29. [29]
    It was also noted in the Explanatory Notes that:

The part^[21] enables an owner of land to apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order to remedy, restrain or prevent serious damage to the owner’s land or property on the land, serious injury to a person on the land, or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of their land as a consequence of a tree situated on adjoining land.

At common law an action in private nuisance may also be available in circumstances where a tree causes substantial and ongoing interference with a person’s use or enjoyment of land. (emphasis added)

30. [30]
    I have found that the amount of leaf litter deposited by the trees could be managed by the neighbour as part of the routine maintenance of his land. I accept that the neighbour suffers from a significant and debilitating medical condition which clearly impacts upon his ability to undertake physical activities including the performance of routine property maintenance.
31. [31]
    I find that the neighbour is, as a result of his medical condition, abnormally sensitive to the consequences of the presence of leaf litter deposited by the trees on to his land. I find that the nature and extent of the leaf litter deposited by the trees on the neighbour’s land does not constitute a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of his land for the purposes of s 66(2)(b)(ii) of the ND Act.

Solar panels

32. [32]
    If the substantial, ongoing and unreasonable interference with the use and enjoyment of land caused by a tree is claimed to be the obstruction of sunlight, the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.^[22]
33. [33]
    The neighbour makes various assertions about the performance of the solar panels on the roof of his residence. In addition to these assertions the neighbour has filed: a copy of an Origin Energy payment slip; a photograph of an inverter panel; a photograph of an Energex electrical panel. It is difficult to know what to make of this evidence. The neighbour also makes various submissions about meter readings, solar credits and the generation of power by the solar panels.
34. [34]
    In circumstances where a neighbour comes to the Tribunal asserting that the presence of trees on neighbouring land severely obstructs sunlight to a roof and thereby impacts the operation of solar panels, the Tribunal will generally require cogent, objective evidence in support of the assertion if a finding of severe obstruction is to be made. The evidence will usually take the form of a report by an appropriately qualified person able to comment on the particulars of the solar energy system, the expected performance of the system, the extent of shading caused by trees and the impact of the shading on the performance of the system. The neighbour offers no such evidence either in the form of a report by a qualified person or his own detailed evidence addressing the matters to which I have referred.
35. [35]
    I accept the evidence of Mr Sowden and the neighbour that the trees may have had, and may to continue to have, an impact on the performance of the solar panels. What I am unable to determine is what the extent of that impact has been and might continue to be. 
36. [36]
    It is apparent from the report by Mr Sowden, the evidence of the tree keepers and the neighbour’s own evidence is that for a number of years the solar panels were not adequately maintained resulting in the accumulation of lichen on the surface of the panels. It stands to reason that this is likely to have impacted the performance of the solar panels, perhaps significantly. The neighbour says that he has now cleaned the panels however the performance of the solar system continues to be adversely impacted by the trees. However, these statements simply lead one back to my earlier observations about the lack of cogent evidence in this regard. I also note that while Mr Sowden commented in his report on the shading to the panels caused by the trees, it is not contentious that the tree keepers have since undertaken pruning works to the trees. I accept the tree keepers’ submission that the pruning works have resulted in a reduction in the shading to the solar panels. There is however no cogent evidence before the Tribunal about the current extent of any shading caused by the trees.
37. [37]
    I am not satisfied on the evidence that the impact of the trees on the performance of the solar panels constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

Risk of serious injury or damage to the neighbour’s land or to property on the land

38. [38]
    The Tribunal may make orders it considers appropriate to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land.
39. [39]
    I have referred earlier in these reasons to Mr Sowden’s opinion regarding the previous pruning work undertaken in respect of the trees. Mr Sowden recommended that further pruning and dead wooding works be undertaken in respect of the trees. The tree keepers say that this work was undertaken. I do not understand the neighbour to say otherwise.
40. [40]
    It is necessary to examine closely what Mr Sowden said about the risk posed by the trees, bearing in mind that the tree keepers have since undertaken tree works. Mr Sowden opined that the branches at the site of the 2016 pruning works had the potential to fail within the ensuing 12 months which in turn had the potential to impact within the neighbour’s property. Mr Sowden also opined that the failure of any of the branches represented a significant risk to the neighbour’s property throughout the southern side canopies of the trees. The difficulty with Mr Sowden’s report is that he does not further elaborate on what ‘potential’ means. Certainly, the use of the term is not reflective of words found in s 66 of the ND Act. The Tribunal may make orders it considers ‘appropriate in relation to a tree affecting the neighbour’s land.’ It is a matter of discretion to be exercised by the Tribunal applying the relevant statutory provision to the facts of the case. 
41. [41]
    As has been observed by the Tribunal on numerous occasions, the use by the legislature of the words ‘serious injury’, ‘serious damage’, ‘substantial, ongoing and unreasonable interference’ and ‘severe obstruction’ in the ND Act was deliberate. The words convey a clear legislative intent that the threshold for making orders about a tree is a not insignificant one.
42. [42]
    One may assume that Mr Sowden’s use of the term ‘potential’ was deliberate. He might otherwise have used the term ‘likely’ or otherwise not have qualified his opinion about the future failure of the tree regrowth. The word ‘potential’ in the present context means the possibility of something happening.^[23]
43. [43]
    Mr Sowden opines in the report that the ‘the failure of any of (the multiple epicormically attached branches) represent a significant risk to the applicant’s property.’ This statement must be read in the context of the preceding comments in the report to which I have referred regarding the potential for the branches to fail.
44. [44]
    In my view Mr Sowden’s opinion is that the tree regrowth might fail in which event the failed regrowth might impact within the neighbour’s property. While I accept that Mr Sowden opines that the failure of a branch represented a significant risk to the neighbour’s property, one is still left with the uncertainty as to if and when this might in fact occur.
45. [45]
    The uncertainty attending aspects of Mr Sowden’s opinion is directly relevant to whether it is appropriate to make an order about the trees. It might be said of a vast number of trees in urban environments that a branch of the tree has the potential to fail and has the potential to impact on neighbouring land. As I have observed however, the bar set by s 66 is not a low one. When a neighbour comes to the Tribunal seeking orders about a tree, the onus is upon the neighbour to place before the Tribunal evidence to support the appropriateness of the orders. That there is a possibility branches from the trees may fall and a possibility that some of the branches may impact within the neighbour’s land is insufficient to justify an order about the trees. I am not persuaded that, on the present state of the evidence, it is appropriate to make orders about the trees to prevent serious injury to persons or to remedy, restrain or prevent serious damage to the neighbour’s land or property on the land.
46. [46]
    My conclusion is reinforced by a number of other relevant considerations.
47. [47]
    In the originating application for a tree dispute when asked ‘(h)as the tree caused serious injury to any person’ the response of the neighbour was ‘have almost tripped on tree limbs/branches that have fallen and landed on my front steps at night time when they were virtually invisible.’ When asked ‘(h)as the tree caused serious damage to your land, or property on your land’ the neighbour’s response was that no such damage had been caused however it was likely within the next 12 months, ‘constant leaf litter … block(s) my property’s gutters, drains, solar panels, pool cleaner and filter.’ The matters referred to by the neighbour in the originating application are, in my view, reflective of the neighbour’s primary complaint regarding the leaf litter deposited onto his property and the shading of the solar panels and the impact of the consequent property maintenance on his pre-existing medical condition. There is no mention in the originating application of serious damage to the neighbour’s land or property on the land. Nor is any evidence offered by the neighbour of previous damage. In his submissions, the neighbour makes various assertions about the possibility of one or more of the trees falling onto his property. Mr Sowden makes no mention of this possibility. The neighbour refers to the previous owner of his property advising the neighbour at or about the time of purchase that trees on the tree keepers’ land had previously fallen. The neighbour’s assertion is made in the absence of any supportive evidence.
48. [48]
    In addition to the foregoing, it is not contentious that since Mr Sowden assessed and reported on the trees, the tree works he recommended have been undertaken by the tree keepers. Presumably these works have addressed the issues identified by Mr Sowden and the potential for branches to fail and fall on the neighbour’s land. If the works had not been productive of this outcome one would have expected the neighbour to have filed submissions or evidence to this effect.
49. [49]
    All of these matters support my finding that it is not appropriate to make orders about the trees.

Other matters

50. [50]
    For the sake of completeness I will address a number of other matters raised by the neighbour in his submissions.
51. [51]
    The neighbour refers to statements made during a compulsory conference. Evidence of anything said or done during a compulsory conference is not admissible at any stage in a proceeding.^[24] I disregard the neighbour’s submissions insofar as they repeat or rely upon anything said or done during the conference.
52. [52]
    The neighbour makes reference to a termite nest situated on the tree keepers’ land. The termite list is not on or adjacent to any of the trees. the neighbour says that the presence of the nest is reflective of the tree keepers not acting responsibly. The presence or otherwise of the termite nest is irrelevant in this proceeding.
53. [53]
    The neighbour refers to a dividing fence constructed by the tree keepers on the common boundary. There is no cogent evidence that the presence or otherwise of the fence is relevant to the determination of the relevant issues relating to the trees.
54. [54]
    The neighbour refers to the trees interfering with satellite television reception to his dwelling. The neighbour refers to a conversation he had with a technician regarding the installation of a satellite dish. The neighbour says that he has been unable to access satellite television services and has incurred the expense of additional data costs presumably as a result of his being required to access streaming services via cable. There is no statement of evidence or report by the technician or by a suitably qualified person. There is no cogent evidence offered by the neighbour supporting his assertion regarding the impact of the trees on satellite television reception other than the submissions to which I have referred. I am unable to make any findings about this issue in the absence of such evidence.

Conclusion

55. [55]
    The application is dismissed.