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Thomas v Hines QCATA 30
Thomas v Hines  QCATA 30
Jean Helena Thomas
Barbara Paula Rosa Hines
On the papers
Senior Member Stilgoe, OAM
Member Dr Cullen
7 April 2016
Appeals – Neighbourhood Disputes – Trees – Whether trees had potential to cause serious danger or substantial, ongoing, and unreasonable interference with land – Tribunal relied properly upon outcomes documented in Joint Expert’s Report – appeal dismissed.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66
QCAT Practice Direction No 4 of 2009
Metro South Hospital and Health Service & Leighton v Luthje  QCATA 145
Ollier & Grubb v Kuhnemann  QCATA 112
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Senior Member Stilgoe, OAM
- In this matter, I have had the benefit of reading Member Dr Cullen’s reasons in draft. I agree with her reasons, and conclusions, and the order she proposes.
Member Dr Cullen
- Jean Thomas resides at a home located on Queens Park Circuit, in Oxenford. Mrs Thomas’ property is adjacent to a property owned by Barbara Hines on California Drive.
- This appeal arises out of a neighbourhood dispute involving four gum trees. The trees are located approximately two metres from the fence line of California Drive, overhang the common boundary between the properties, and extend over the pool area of Queens Park Circuit.
- In January of 2014, Mrs Thomas filed application NDR022-14 in the Tribunal seeking an order for removal of the four trees pursuant to ss 46 and 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
- The Act gives the Tribunal jurisdiction to make order in relation to trees that affect a neighbour’s land, in order to prevent serious injury to any person; or to remedy restrain, or prevent serious damage to land or any property on the land; or cause substantial, ongoing and unreasonable interference with the use and enjoyment of the land.
- Mrs Thomas now seeks to appeal to the QCAT Appeals Tribunal on the basis that the Tribunal below erred at law. Where an appeal is based on an error of law, leave is not required.
Nature of the appeal
- Mrs Thomas’s appeal is based on the assertion that, in relying on the Joint Expert’s Report in deciding to dismiss the application, the Tribunal failed to consider the impact of the trees on her property, and her use and enjoyment of the land. Mrs Thomas argues that the Tribunal’s reliance on the Joint Expert’s Report amounts to a failure to consider a relevant factor in deciding whether to make an order regarding s 46 of the Neighbourhood Disputes Act and an error of law. She argues that the learned Member below only considered the ‘health of the trees,’ and did not consider the impact they had upon her safety, use and enjoyment of her land.
- Mrs Thomas also argues that it is ‘medically necessary’ that these trees be removed, as her elderly husband needs the pool for therapy.
- In a letter of support, filed together with the appeal, the tree arborist engaged by Mrs Thomas, Mr Bill Wilcox, asserts that the trees were planted all those years ago in a deliberate effort to cause ‘major upset’, and to ‘flaunt’ the system. He refers to the planting as ‘mischievous behaviour’. There is no evidence to support these unusual allegations made by a supposedly neutral expert. Strictly speaking, this evidence was not before the Tribunal below and should not be considered by the Appeal Tribunal, as there is no Order permitting Mrs Thomas to file additional evidence in support of her application.
Decision at first instance: NDR022-14
- In her application, Mrs Thomas contended that the four gum trees were planted after her pool was built in 1992. She said that the leaves, branches and bark falling from the trees, as well as guano from birds roosting in those trees, has caused damage to her property within the meaning of s 46(ii)(B) of the Act. She told the Tribunal that leaf litter caused her pool cleaners to malfunction. Further, she contended that the gum trees unreasonably interfered with her use and enjoyment of the land, within the meaning of s 46(ii)(C) of the Act. This is because it was frequently necessary to manually clean the pool, and the trees blocked the view and prevented sunlight from reaching the pool.
- The learned Member below also heard evidence that the trees located on Ms Hines’ property were, following advice from an arborist, now being pruned regularly. Additionally, the Tribunal was told that the occupants of Ms Hines’ property were now feeding birds at the front of the property in an effort to mitigate the amount of tree and bird litter falling into Mrs Thomas’ property.
- There was significant expert evidence before the learned Member below, from three different arborists. Mrs Thomas engaged Mr Wilcox; Ms Hines engaged Chad Summers; and the Tribunal appointed David Gunter as an independent tree assessor. An expert’s conclave was convened by the Tribunal, resulting in a Joint Expert’s Report prepared by Mr Gunter, which was then signed by all three experts.
- In the Joint Expert’s Report, the experts agreed that the amount of leaf litter was not excessive, given the nature of the suburb and the number of mature canopy trees within it. The report acknowledged that trees other than the gums, including those on Mrs Thomas’ own property, contributed to leaf litter. The report acknowledged that the pool maintenance would be ongoing and demanding, but concluded that this was normal to expect in a leafy suburb. Further, the report acknowledged that there was minimal risk of any damage to property or people as a consequence of the trees. Ultimately, the report concluded that the trees were appropriate for the site, an acceptable distance from the boundary, and that removal of the trees would not ‘alleviate any perceived problems’.
Decision on the appeal
- When the Tribunal convenes an expert’s conclave, a Tribunal Member supervises the process to ensure that all the experts in attendance have an opportunity to express their views. The experts are obliged, first and foremost, to assist the Tribunal in understanding the issues before it.
- Despite having signed the Joint Expert’s Report, Mr Wilcox appeared at the hearing of this matter in the Tribunal below and then endeavoured to offer evidence that the Joint Expert’s Report failed to address matters material to Mrs Thomas’s application. This conduct, by an expert, treads into the realm of advocacy, and risks the expert being seen to be partisan.
- Mr Wilcox explains that he signed the conclave report because it, ‘listed a number of points that were relevant to Arboricultural issues, all of which could not be disputed when kept in the arboricultural area.’
- The Tribunal must consider Mrs Thomas’s application for leave to appeal within the context of the Act. It is clear that the Experts Conclave resulted in outcomes that were entirely consistent with the learned Member’s decision below to dismiss Mrs Thomas’s application.
- There are strong policy reasons that such conduct by an expert should be discouraged. The entire point of utilising the Tribunal’s resources to convene a conclave and narrow the agreed and disputed issues before the hearing is to assist the Tribunal in determining the application. If Mr Wilcox genuinely believed there were other issues, as an expert witness, it was his obligation to advise the Member at the time of the conclave, and to refuse to sign the joint report.
- These factors led the learned Member below to rely upon the outcome of the Joint Expert’s Report in concluding that Mrs Thomas’s application should be dismissed.
- During the hearing, the learned Member referred expressly to the Joint Experts Report’s findings that ‘there is minimal risk of the trees failing or falling so as to cause dangerous damage to people or property’ in providing reasons for why an order was unlikely to be made with respect to s 46(a)(ii)(A) or (B) of the Act.
- Toward the end of the hearing, the learned Member directly referred to the Joint Expert’s Report’s finding that the removal of the trees would not alleviate any of the perceived problems regarding the unreasonable interference with enjoyment and use of the land and that the leaf litter was not excessive, given the nature of the suburb.
- It is clear that the Joint Expert’s Report determined that there was ‘minimal risk of the trees falling or failing so as to cause serious damage to people or property.’ Whilst the experts acknowledged that the trees shed bark, they say it is limited to, ‘approximately two months per year and is unlikely to cause serious damage or harm.’ The Tribunal acknowledges that Mr Thomas is elderly and in ill health, however, the issues in relation to the pool described can be overcome through maintenance. Whilst perhaps more expensive than maintenance may be for a pool with no trees in the vicinity, it is clear that the Experts Conclave did not consider the maintenance regime overly onerous.
- The learned Member clearly did consider factors beyond the ‘health of the trees’ only. The learned Member had express regard to the views expressed by Mr Wilcox at the hearing of the matter below, as well as the Joint Expert’s Report. This evidence did address the impact of the trees on Mrs Thomas’ property, and considered the impact of their presence upon the use and enjoyment of her land.
- The learned Member below was quite entitled to favour the outcomes documented in the Joint Expert’s Report, following a conclave, in preference to the assertions of Mr Wilcox at the hearing. Mr Wilcox cannot properly be both an expert, and a ‘support person’. When he appeared as a ‘support person,’ he lost the status of being a neutral expert, in contravention of the Practice Direction requiring him to assist the Tribunal. His proper role was to assist the Tribunal, first and foremost, which required him to, ‘speak for the trees,’ rather than on behalf of Mrs Thomas.
- Mr Wilcox’s submissions on appeal are of no assistance. The Act does not allow the Tribunal to consider any issues of intent by planters of trees; the Tribunal must find that there is a present danger or unreasonable interference occasioned by the trees.
- There has been no error of law by the learned Member below, and the appeal is dismissed.
- Published Case Name:
Thomas v Hines
- Shortened Case Name:
Thomas v Hines
 QCATA 30
Senior Member Stilgoe, OAM
07 Apr 2016