Carew-Reid v Hart
[2018] QCAT 167
•8 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Carew-Reid v Hart [2018] QCAT 167
PARTIES:
JANE VANESSA CAREW-REID
(applicant)v ROBIN HART
(respondent)
APPLICATION NO/S:
NDR175-15
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
8 June 2018
HEARING DATE:
23 January 2017, 2 and 3 May 2017
HEARD AT:
Brisbane
DECISION OF:
Senior Member Guthrie
ORDERS:
1. By no later than 5 July 2018, Ms Robin Hart must select and engage at her cost an AQF qualified to minimum level 3 arborist (‘the arborist’) to provide advice to Ms Robin Hart and Ms Jane Vanessa Carew-Reid as to how best to satisfy the Tribunal’s orders and to carry out the work required to satisfy these orders.
2. Ms Jane Vanessa Carew-Reid must provide the arborist with reasonable access to 47 Nash Street, Sandgate to enable the arborist to prepare the advice and carry out the work required to satisfy these orders.
3. The clumps of bamboo situated on Ms Robin Hart’s property at 79 Alexandra Street, Sandgate adjoining Ms Jane Vanessa Carew-Reid’s property must be removed and destroyed, identified as clumps 1 to 4 (inclusive) in the report of The Tree Doctor dated 15 September 2016.
4. Any culms of bamboo growing on Ms Jane Vanessa Carew-Reid’s property at 47 Nash Street, Sandgate must be destroyed and removed.
5. Ms Robin Hart will bear the cost of the removal and destruction of clumps of bamboo growing on her property at 79 Alexandra Street adjacent to the boundary shared by Ms Jane Vanessa Carew-Reid’s property.
6. Ms Jane Vanessa Carew-Reid will bear the cost of removal and destruction of any bamboo growing on her property at 47 Nash Street.
7. The destruction and removal of the bamboo from Ms Robin Hart’s property at 79 Alexandra Street, Sandgate is to commence no later than 28 July 2018.
8. There is no order as to costs.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where bamboo provided privacy to tree keeper – whether bamboo causing substantial, ongoing and unreasonable interference with the use and enjoyment of neighbour’s land – whether severe obstruction of a view – whether serious damage to property on the neighbour’s land – whether the Tribunal should exercise discretion to make any order
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 49, s 52, s 54, s 61, s 65, s 66, s 72, s 73, s 74, s 75
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102
Haindl v Daisch [2011] NSWLEC 1145
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Ms Hart is the registered owner of a property situated at 79 Alexandra Street, Sandgate which is shares a common boundary with a number of adjoining properties one of which is owned by Ms Carew-Reid and is situated at 47 Nash Street, Sandgate. Ms Hart shares her home with her teenage daughter. Ms Carew-Reid’s property’s rear and part of the side boundary closest to Alexandra Street adjoins Ms Hart’s property’s side boundary closes to Nash Street. Ms Carew-Reid purchased her property in 2006.[1] Ms Hart purchased her property in 2007.[2] At the time Ms Hart purchased her property, Ms Carew-Reid’s house did not have a rear deck. Ms Carew-Reid’s property is high set and Ms Hart’s is low set. Approximately six months after Ms Hart purchased her property, Ms Carew-Reid built a deck on the rear of her property.
[1]Exhibit 4:Certificate of Title.
[2]Exhibit 4:Statement of Evidence of Robin Hart p.1.
Other properties adjoining Ms Hart’s property were subdivided over time and new homes built. Some of the new homes built out to the rear of the properties thus looking over Ms Hart’s property in particular her back yard. She enjoys gardening and sitting in her back yard. Ms Hart planted bamboo along her side boundaries to the rear of where her house is situated on her block and along part of the rear boundary of her property to give herself mainly privacy and shade but also some protection from smoke and odour such as when neighbours fertilise their gardens. She also says that the bamboo blocks light coming into her daughter’s bedroom from fluorescent bulbs under Ms Carew-Reid’s house. Ms Hart was concerned about the tenants of Ms Carew-Reid’s property being able to see into her yard.[3]
[3]Exhibit 4: Statement of Evidence of Robin Hart p.1.
Ms Hart’s and Ms Carew-Reid’s properties are separated by a timber fence which has not been replaced since they each purchased their respective properties. It is not disputed that parts of the fence are damaged. Ms Carew-Reid says that the fence has been damaged by the bamboo while Ms Hart says that the fence has been damaged by termite activity and is very old. Both agree it should be replaced but the replacement of the fence has not progressed because Ms Carew-Reid is concerned that unless the bamboo is removed, any new fence will be compromised. At the hearing they agreed they would each be happy with the construction of a 1.8 metre high fence. Ms Hart claims that the current fence is not situated on the boundary of their properties.
Ms Carew-Reid also claims that the bamboo has grown so high that it severely obstructs the hinterland view she once enjoyed from the rear of her home and was one of the reasons she purchased the property and subsequently built the deck.
Ms Carew-Reid is also concerned that culms of bamboo grow into her yard and the shade from the bamboo and the bamboo growth impedes her ability to build an aesthetically pleasing garden at the rear of her property and that it has damaged garden beds at the rear of her property.
Ms Carew-Reid relies on her own evidence,[4] the Landscape and Visual Assessment report of Mr John Cleary and his oral evidence, the report prepared by Mr Matt Williams, Senior Arborist of ‘The Tree Doctor’ dated 15 September 2016 and Mr William’s oral evidence. She also relies on the evidence of neighbours who provided statements and some of whom gave evidence at the hearing including, Ms Smith-Lovett,[5] Mr Mark Harper[6] and the evidence of her partner, Mr Marco Agostini.[7]
[4]Exhibit 1: Jane Carew-Reid’s material pp.18-20 statement of Jane Vanessa Carew-Reid.
[5]Exhibit 1: Jane Carew-Reid’s material p.13 statement of Darlene and Shaun Smith.
[6]Exhibit 1: Jane Carew-Reid’s material pp.11-12 statement of Kim and Mark Harper.
[7]Exhibit 1: Jane Carew-Reid’s material pp.3-5: statement of Marco Agostini.
The evidence of the neighbours is only relevant to support the evidence of Ms Carew-Reid regarding the impact of the bamboo. In the absence of any application by others, the Tribunal cannot make any orders regarding bamboo that may impact land owned by others which adjoins Ms Hart’s land.
Ms Hart did not call any witnesses but gave evidence.[8] She relies on her own evidence and the statement of her daughter who did not give oral evidence.[9]
[8]Exhibits 4, 6 and 8.
[9]Exhibit 5: Statement of Evelyn Hart-Reid.
I have also considered the written submissions of the parties filed after the hearing.[10]
[10]Written submission of the applicant filed 10 May and reply filed 5 June 2017. Written submission of the Respondent filed 24 May 2017.
At the time of the hearing, Ms Hart had pruned back the bamboo to 40 centimetres from the boundary, thinned the bamboo out and removed a section to restore Ms Carew-Reid’s view and claimed that any culms were growing on her land not Ms Carew-Reid’s land.
Relevant legislative provisions
The relevant legislative provisions are contained in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
Bamboo falls within the definition of ‘tree’ in s 45 of the Act, as it is a plant resembling a tree in form and size.[11] The bamboo is situated on Ms Hart’s land in terms of s 47(1) of the Act.
[11]The Act s 45(1)(b): see in particular the examples which includes bamboo.
The bamboo in question is in clumps. These were identified in Mr Williams report as follows:[12]
Clump 1positioned on the north/south boundary fence adjoining [Ms Carew Reid’s property]
Clump 2 Located 3 metres north of clump 1
Clump 3 positioned on the western boundary of [Ms Hart’s property]
Clump 4 Located south of north-east boundary of [Ms Hart’s property]
Clumps 1, 2 & 4 are within 0.5 metres of the boundary fence adjoining [Ms Carew-Reid’s property] (the bamboo).
[12]Exhibit 1. Pp.23-27.
There is no dispute that clumps were not all planted at the same time. In order to give herself some privacy, Ms Hart considered what plants to purchase in 2007. Ms Hart purchased some bamboo in 2009 and more in 2011.[13] At the time of purchase she says that the label said the bamboo would grow to six metres. It is not disputed that the bamboo has grown in excess of six metres. The bamboo is of the Gracilis variety.
[13]Exhibit 8.
Ms Hart is the registered owner of the lot on which the bamboo is situated and is therefore the ‘tree-keeper’ under s 48 of the Act. Ms Carew-Reid will be the ‘neighbour’ as defined in s 49 of the Act as the registered owner of land that adjoins Ms Hart’s land, provided their land is ‘affected’ by the bamboo, that is, one of the limbs of s 46(a) of the Act applies:
Land is affected by a tree at a particular time if—
(a) any of the following applies—
(i) branches from the tree overhang the land;
(ii) the tree has caused, is causing, or is likely within the next 12 months to cause—
(A) serious injury to a person on the land; or
(B) serious damage to the land or any property on the land; or
(C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; …
A tree-keeper is responsible for cutting and removing any branches of a tree that overhang a neighbour’s land, and is responsible for ensuring that the tree does not cause serious damage to a person’s land or any property on the person’s land or cause substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.[14]
[14]The Act s 52.
The Act does not affect the common law right of abatement.[15]
[15]Ibid s 54(1), Section 54(2) states that the law of abatement is qualified to some extent in that there is no requirement for a neighbour who removes a part of a tree to return that part of the tree to the neighbour.
Part 5 of the Act contains the provisions relating to the Tribunal’s jurisdiction, power to make orders, what orders can be made and what the Tribunal must consider in determining whether to make any order. The Tribunal has jurisdiction 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 the Tribunal, land is affected by the tree.[16]
[16]The Act, s 61.
The Tribunal may make an order under s 66 if, relevantly in this case, if the neighbour (assuming the neighbour’s land is ‘affected by the tree’) has made reasonable effort to reach agreement with the tree-keeper.[17]
[17]Ibid s 65(a), Section 65(b) is not relevant in this case as there is no relevant local law, local government scheme or local government administrative process that is relevant.
In this case, the parties made various offers to resolve the dispute but no agreement was reached. Prior to the hearing, Ms Hart, pruned the bamboo considerably and indicated that she was willing to do so on a regular basis. Ms Hart considered that the pruning had restored Ms Carew-Reid’s view. She had also placed pavers between the bamboo and the fence as a temporary measure pending construction of any new fence. Ms Hart is open to putting in root barrier measures to contain the bamboo.
Ms Carew-Reid wants the bamboo removed. Ms Hart will not agree to remove the bamboo because she does not consider that any alternative planting will give her the privacy she wants. I am satisfied that Ms Carew-Reid has made a reasonable effort to reach agreement with Ms Hart.
Section 66(2) of the Act gives the Tribunal the power to make, in its discretion, orders it considers appropriate in relation to a tree affecting the neighbour’s land, –
(a)to prevent serious injury to any person; or
(b)to remedy, restrain or prevent –
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
In this case, Ms Carew-Reid argues that serious damage has been done to the fence, ownership of which she shares with Ms Hart.[18] Further, she argues that the bamboo obstructs a view, has damaged garden beds, encroaches into her yard and impacts her ability to create gardens of her choosing and/or use the rear part of her yard.
[18]The Act s 19 makes it clear that the Act does not affect the common law under which dividing fence separating adjoining land is, to the extent the dividing fence is on the common boundary, owned equally by the adjoining owners.
Section 66(3) of the Act provides that where the substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land is the alleged obstruction of a view it can only be such an interference if the tree rises at least 2.5m above the ground and the obstruction is:[19]
severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
[19]The Act s 66(3).
Section 66(5) sets out the types of orders the Tribunal can make but it is not an exhaustive list. Section 72 provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
The Tribunal, in determining what if any orders are appropriate to resolve a dispute, must consider the general matters in s 73 which includes any contribution the tree makes to the natural landscape and the scenic value of the land or locality,[20]any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke,[21] any risks associated with the tree in the event of a cyclone or other extreme weather event,[22] the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape.[23]
[20]Ibid s 73(1)(e).
[21]Ibid s 73(1)(g).
[22]Ibid s 73(1)(i).
[23]Ibid s 73(1)(j).
Section 74 of the Act sets out other matters to consider where serious damage is alleged. The Tribunal may consider anything other than the tree that has contributed or is contributing to the damage including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land and any steps taken by the tree-keeper or the neighbour to rectify the damage or the likelihood of damage.[24]
[24]Ibid s 74(1).
In making any order to carry out work that involves destroying a tree the Tribunal may consider how long the neighbour has known of the damage and any steps that have been taken by the tree keeper or the neighbour to prevent further damage and anything other than the tree that may have caused or contributed to some or all of the damage and any other matter the Tribunal considers relevant.[25]
[25]Ibid s 74(2).
If the neighbour, as in this case, alleges that the tree has caused or is causing substantial ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, the Tribunal may consider matters such as any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and the size of the neighbour’s land and whether the tree existed before the neighbour acquired the land. [26]
Does the bamboo cause substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Carew-Reid’s land through a severe obstruction of a view?
[26]Ibid s 75(b), (c), (d).
There is no general right to a view in Queensland. The Act creates a limited exception to that principle. The right to a view in this case must then be construed according to the terms of the Act.
In Laing & Anor v Kokkinos & Anor (No 2) (‘Laing’) Alan Wilson J held at paragraphs 33 and 34 respectively (footnotes omitted):
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.
First, 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, namely ss 72, 73 and 75.[27]
[27][2013] QCATA 247 as quoted in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203.
As was said in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford[28] (‘Neverfail’) a view is a single view with various elements contained within, not multiple views requiring separate analysis.[29] A dwelling may have multiple viewing locations from each of which there is a different view.[30]When assessing a view it is necessary to consider the totality of what can be seen from the viewing locations rather than segmenting those views.[31]
[28][2016] QCATA 203, [31].
[29]Laing citing Haindl v Daisch [2011] NSWLEC 1145, [26].
[30]Haindl v Daisch, [25].
[31]Neverfail [31]
In Laing, Alan Wilson J, adopting principles enunciated in Tenacity Consulting Pty Ltd v Warringah Council ,[32] identified a three step process required to be undertaken when determining the nature of a view that has been obstructed:
[39]The first step is to identify and value the type of views affected; water views and iconic views are valued more than views not of those things; and whole views are valued more highly than partial views.
[40]The second step identifies the part of the dwelling the views exist from and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sitting views are more difficult to protect than standing views.
[41]The third step assesses the impact of the interference to the views of the whole property, not just for the view that is affected; views from living areas are more significant than from bedrooms or service areas, except those from kitchens which are highly valued. As Roseth SC said:
The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
[32][2004] NSWLEC 140 and cited in Neverfail, [37].
In Neverfail the Appeal Tribunal said:
[38]The process identified in Laing cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the same dwelling, at the time of the hearing. In assessing the value of a view, the reasonableness or protecting a view and the impact of the interference with a view, the same view must be capable of assessment at differing points in time.
[39]It is uncontroversial for the purposes of applying and interpreting the [Act] generally, that home renovations which include, for example, the construction of decks, additional rooms and additional levels are commonplace. A view that exists from an after possession addition such as a deck, a living area or a kitchen may be entirely different however to the view that existed from the original dwelling. In these circumstances s 66(3)(b)(ii) requires a consideration of the view as it existed from the original dwelling shorn of any after possession additions and alterations, and an assessment of that same view from the dwelling presently.
In this case then I have to identify and value the view that existed when Ms Carew-Reid took possession of her property, before the deck was built. I accept Ms Carew-Reid’s evidence which was supported by the photographs she provided to the Tribunal that the view existed from the kitchen window which was over the sink, through what was then the back door, from the stair landing and from the second bedroom at the rear of the house. [33]I also accept Ms Carew-Reid’s evidence that the view was visible from a seated position at the kitchen bench if the back door was open otherwise the view could be seen from a standing position in the kitchen through the window which was above the kitchen sink and from the second bedroom window. I also accept that from the lounge room you could see the view through the back door, but to do so you would have to face the door or turn your head to the right if sitting on the lounge. The lounge is in close proximity to the kitchen.
[33]Exhibits 1, pp.43, 47.
The view looks over Ms Carew-Reid’s backyard. At the time of purchase there were various trees planted in her yard which blocked the view of the D’Aguilar Ranges on the horizon in the distance. There was also another highset house blocking the view so that I would describe the view of the ranges as a partial view. In the photographs provided to the Tribunal the timber fence is visible but for one corner where shrubs. The fence, to the extent it is visible in the photographs, appears intact.[34]
[34]Exhibit 1, p.44.
While it is generally accepted that views from kitchens are highly valued, I do not consider that the value of a partial view of the D’Aguilar Ranges in the distance and the horizon is a view that is highly valued. In this respect, I disagree with the evidence of Mr John Cleary who in his report states that the bamboo has caused severe restriction of highly valued views.
Mr Cleary is trained in design and landscape architecture. He undertook a landscape and visual assessment of Ms Carew-Reid’s property. He visited the property on a number of occasions including 3 September 2016.[35]However, it is unclear how he determined that the view from Ms Carew-Reid’s property was ‘highly valued.’
[35]Exhibit 2, p.1.
In his report he acknowledges Ms Carew-Reid’s assessment of the views as ‘stunning’ and ‘highly valued.’ He also identifies the view as being a contributing factor to the purchase of the property by Ms Carew-Reid.[36] He shares Ms Carew-Reid’s opinion that the views were highly valued. While he stated he had also taken into account Ms Hart’s desire for privacy, he acknowledged that his opinion reflected a visual landscape assessment and in his view the assessment and his opinion were straightforward. He did acknowledge that the interpretation of the Act was a difficulty for him. He acknowledged that he had visited Ms Carew-Reid’s property before the deck was constructed. He indicated that he regarded the views as iconic in the neighbourhood sense and remained focussed on the bamboos’ impact on the view dismissing any impact the growth of other trees on other lots might have.
[36]Exhibit 1: pp. 49 on (in particular pp.8 and 9 of Mr Cleary’s report).
I do not consider that Mr Cleary’s evidence could be regarded as entirely independent. He was familiar with the applicant before Ms Carew-Reid filed her application. He had visited the property before the deck was built. Further, I do not accept that his opinion regarding the value of the view or how I should assess whether there has been a severe obstruction of the view is consistent with the law.
Mr Williams referred to bamboo obscuring sightlines to the west, but considered the encroachment of the bamboo and the damage to the fence as the greatest concern for Ms Carew-Reid. [37]
[37]Exhibit 1, pp.23-27, Report of the Tree Doctor at p.3.
I am satisfied on the evidence of Ms Carew-Reid supported by photographs and the diagram drawn by Ms Carew-Reid at the hearing, [38]that the view that existed at the time she took possession of the land would remain from the kitchen, although the window from which the view would be visible has changed, as well as the view from the second bedroom and from looking out through the back door. The back stairs are now in a different position. There are now French doors opening onto the deck. I have not taken into account the view from the deck or from looking through the French doors that previously did not exist.
[38]Exhibits 11 and 12.
The cutting away of some of the bamboo has restored part of the view. However, the bamboo is 6-7 metres tall and bushy and is capable of blocking the view. However, the Tribunal must weigh against this the reasonableness in protecting such a view and the impact of interference with a view. I accept that the view was attractive to Ms Carew-Reid and her partner when purchasing the property and I accept that their decision to build the deck was, at least in part, to make the view more accessible to the occupants of the house.
Certainly, looking at the bamboo is not as appealing as looking at the mountain ranges and horizon. Such view will again be completely obstructed if the bamboo is left to grow again. Bamboo grows quickly so if it is not maintained it will not be long before it has again completely obstructed the view. However, the pre-existing view is not deserving of any significant value. It is a partial, distant view which was visible from limited vantage points in the house which were not such that any significant value should be attributed to the view. In that respect I disagree with Mr Cleary. Therefore the impact of the interference cannot, in my view, be considered severe so that s 66(3)(b)(ii) of the Act is not satisfied.
Alternatively, as I do not place any significant value on the pre-existing view, I do not accept that the severe obstruction of a view amounts to a ‘substantial ongoing and unreasonable interference with the use and enjoyment’ of Ms Carew-Reid’s land. Section 66(2)(ii) is not made out in relation to obstruction of the view.
Mr Cleary says that the bamboo shadows the yard. He acknowledges, in his evidence, that the Act addresses only the overshadowing of buildings. I do not consider that I can take into account the shadowing of Ms Carew-Reid’s yard caused by the bamboo because the Act makes it clear that for a substantial ongoing and unreasonable interference relating to 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. That is not the case here.
Has the bamboo caused serious damage to Ms Carew-Reid’s land or any property on her land and is there a substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Carew-Reid’s land for any other reason?
Ms Carew-Reid claims that the timber fence dividing her property from Ms Hart’s has been damaged by the bamboo. Ms Hart argues that the bamboo is not responsible for the damage to the fence. I note that the current fence is the same fence that was present at the time that each of the parties purchased their respective properties so that, at the time of the hearing it was at least 10 years old. Ms Hart disputes that the fence is constructed on the boundary her property shares with Ms Carew-Reid’s property.
In cross-examination, Ms Carew-Reid was unable to state with any certainty that the boundary fence was situated on the true boundary. She maintained that the survey peg was in the correct spot but the fence, not being in a straight line was ‘off”. She confirmed that the survey peg was placed there following a survey in 2008. However, Ms Carew-Reid and her family had previously moved out sometime in 2010 returning at the end of 2014/2015 before again moving out from July 2016. At the time of the hearing they planned to return to the property in March/April 2017. Mr Agostini acknowledged that they had not in that time maintained the yard.
Mr Cleary described the fence in his report:
There is an unpainted square-topped picket fence about 1m in height between these two properties, except for a missing section behind No. 47s [Ms Carew-Reid’s property] garden shed. The remainder of the fence is in moderate condition except for a section adjacent to a large clump of bamboo, where the fence leans to the east (away from the bamboo) and some of the pickets have become unattached to the fence rails.
Parts of the fence remains intact despite the fence’s proximity to the bamboo.
Mr Williams states in his report that:[39]
The greatest concern for [Ms Carew-Reid] is the ongoing encroachment of the clumps into her back yard, which is currently causing damage to the east/west boundary fence. If a replacement fence is installed, it is highly likely that the subject bamboo clumps will also impact the stability and integrity of the new fence.
[39]Exhibit 1: pp.23-27 Report of the Tree Doctor, in particular at pp.3 and 4.
Mr Williams gave oral evidence consistent with his report. While Mr Williams was engaged by Ms Carew-Reid, it was clear from his evidence that he had clearly considered Ms Hart’s need for privacy. He denied that his opinion was reached to ensure the outcome desired by Ms Carew-Reid. I considered his evidence to be objective. While Mr Mumford from Arbor Operations did not give evidence, the contents of the report lent some support to Mr Williams’ evidence. I have accorded significant weight to Mr Williams’s evidence.
Mr Williams spoke of the bowing of the bamboo at least 50 cm over the common boundary and difficulties for Ms Carew-Reid in exercising her right of abatement. Ms Hart put to Mr Williams various potential solutions for preventing the bamboo from encroaching through the fence or coming up in Ms Carew-Reid’s property. These included the installation of a concrete root barrier of various depths and widths between the bamboo and the true boundary. Mr Williams dismissed all of Ms Hart’s suggestions as expensive and unlikely to be successful in the long term. The bamboo he said could start to lean due to the root system. He said that the bamboo will continue to follow along the topsoil until it finds the end of the concrete slab. He held fast to his opinion that removal of the bamboo was the only way to stop encroachment onto Ms Carew-Reid’s yard and to prevent further damage to the fence or damage to any future fence. In respect of any new fence he said it would be unlikely to cause it to fail but had the potential and likelihood to disrupt the stability of the fence.
He rejected Ms Hart’s assertion that the bamboo had not damaged the fence but rather termite activity, timber rot and age had compromised the fence. Mr Williams gave evidence that he had inspected the fence and it was clear to him that bamboo clumps were causing detriment to the fence. He acknowledged however that any replacement plant – an evergreen with a broad leaf being recommended, would be slow to grow to the required height of at least four metres. Further, it might take a number of years for the bamboo to be properly removed as it would likely require constant poisoning and grinding down.
In terms of the bamboo’s impact on the integrity of the fence, Mr Williams’ view was supported by the report of Mr Peter Mumford, Arbor Operations. Mr Mumford did not give evidence but his report dated 27 May 2015 was tendered.[40] Mr Mumford also recommended removal of the bamboo and planting of more appropriate less invasive species requiring less maintenance.
[40]Exhibit 1 pp. 28-40: Arborist report, Arbor Operations dated 27 May 2015 at p.4.
The evidence of the other neighbours was consistent that despite boundary fences constructed of different materials including a metal fence and a painted timber fence, the bamboo had made its way into their yards.
While Mr Williams acknowledged that the pavers Ms Hart had laid after trimming the bamboo back 40cm from the fence line had provided a temporary solution to the encroachment, he stressed that it was only a temporary solution. He stated that the bamboo would, in time, dislodge the pavers and continue growing past them. He stated in his evidence a number of times that he wished there was a better solution for both Ms Hart and Ms Carew-Reid other than the removal of the bamboo acknowledging Ms Hart’s need for privacy. However, he saw no other option as any maintenance plan would be overly burdensome on both Ms Hart and Ms Carew-Reid and likely to fail in any event.
Ms Hart told the Tribunal that, in 2011, she attempted to lay a root barrier by laying Perspex but that was unsuccessful. Ms Hart did not call any evidence from an arborist or any other person that might be qualified to comment on the contribution of the bamboo to the damage to the fence.
I find that the weight of the evidence supports a finding that the bamboo has contributed to the damage to the fence. I also find that at the time of the application the bamboo encroached on Ms Carew-Reid’s property. Further, I accept Mr Williams’ evidence that that damage and encroachment, despite Ms Hart’s best endeavours will be ongoing, with any future fence likely to be impacted by the bamboo at some stage. In reaching this conclusion I acknowledge the uncertainty regarding the boundary between the properties. However, I do not consider that that prevents me making the findings that I have made. The evidence which I have accepted is that the bamboo will not be contained by a boundary fence wherever that boundary might be.
I find that the combination of the bamboo’s contribution to the damage to the current fence, the encroachment of its culms into Ms Carew-Reid’s yard, the difficulty in preventing this from continuing to occur, the difficulty in maintaining the bamboo’s height and preventing its impacts due to its rapid growth as well as the impact it will likely have on any new fence that is constructed means that the bamboo is causing a substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Carew-Reid’s land.
Ms Carew-Reid’s property is affected by a tree and there are grounds to consider whether to exercise the discretion to make an order under s 66 of the Act.
Should the Tribunal exercise its discretion to make an order and, if so what is the appropriate order?
In determining whether to make an order under s 66, I have considered the matters in s 73. The location of the bamboo is very close to the boundary and will likely impact any structures near the boundary. The bamboo has no historical, cultural, social or scientific value. There is no evidence that it contributes to the local ecosystem or biodiversity. There is no evidence that it makes any contribution to the natural landscape or the scenic value of the locality. I accept that Ms Hart considers that it enhances the scenic value of her property. The bamboo does not contribute to public amenity.
It does however provide Ms Hart with privacy from all her surrounding neighbours who can peer into her yard. Mr Williams gave evidence that with wind and rain the bamboo will bow and juvenile stems may fail when weighed down with rain. Mr Williams said that heavily pruning or cutting off the stems of the bamboo will negatively impact its form and cause it to become bushy where it has been cut.
I am mindful that removal or destruction of the bamboo is to be avoided unless the issue relating to the tree cannot be otherwise satisfactorily resolved.
I have also considered the matters in s 74. I do not consider that the bamboo is solely responsible for the damage to the fence. It is an old, timber unpainted fence. I accept Ms Hart’s evidence which was consistent with the evidence of Mr Agostini that Ms Carew-Reid neglected her yard and both parties neglected the maintenance of the fence. Ms Hart used wire to keep it together but otherwise no maintenance was carried out. Ms Hart has made attempts to reduce the impact of the bamboo on both the fence and the encroachment of the bamboo into neighbouring properties including Ms Carew-Reid’s property. She is prepared it seems to do anything to avoid the removal of her bamboo including coming onto Ms Carew-Reid’s property to poison any encroaching culms. However, understandably, Ms Carew-Reid considers this too will interfere with the use and enjoyment of her land. I have also taken into account that in terms of the damage to the fence, both parties have been aware of it for some time and done nothing.
However, I consider that I can also take into account that they now agree to construct a new fence and I have accepted evidence that this new fence will likely, in time, be impacted by the bamboo if it remains. I have also considered the matters in s 75 including that Ms Carew-Reid’s block is a suburban block, as is Ms Hart’s, being 603 square metres and that the bamboo did not exist before she acquired the land. I have also considered that Ms Carew-Reid did not take issue with the bamboo until early 2015.
Ms Hart has not presented any other option to restrain or prevent the substantial ongoing and unreasonable interference with the use and enjoyment of Ms Carew-Reid’s land that has the support of any person with any relevant qualifications. Ms Hart did not obtain any expert evidence. I also accept that Ms Hart did not at the time she planted the bamboo consider that they would become so invasive or that they would grow to the height they have.
While it will take some time for Ms Hart’s privacy to be re-established if the bamboo is removed the evidence before me is that other plantings can provide the privacy she requires and will not interfere with Ms Carew-Reid’s use and enjoyment of her property. I have reached the conclusion that the appropriate order is for the bamboo to be removed and destroyed. However, given the factors I have weighed I consider that there should be some sharing of the cost of satisfying the orders I make. I have not made any order requiring the planting of other plants as I consider the orders I have otherwise made sufficient to address the application by Ms Carew-Reid. Ms Hart can consider what other plantings if any she may wish to make on her property.
Ms Hart submitted that I should make orders that Ms Carew-Reid plant certain plants along her boundary to assist with privacy and noise mitigation. I consider it is a matter for Ms Hart to consider the appropriate measures to take to restore her privacy once the bamboo is removed. I do not consider it appropriate that I make orders which would impose restrictions on Ms Carew-Reid as to how she can use her land. My orders are restricted to dealing with the tree in issue, the bamboo.
Weighing all of these matters, I have decided to exercise the discretion to make the following orders that I consider appropriate in the circumstances of this case:
(a)By no later than 5 July 2018, Ms Robin Hart must select and engage at her cost an AQF qualified to minimum level 3 arborist (‘the arborist’) to provide advice to Ms Hart and Ms Jane Vanessa Carew-Reid as to how best to satisfy the Tribunal’s orders and to carry out the work required to satisfy these orders.
(b)Ms Jane Vanessa Carew-Reid must provide the arborist with reasonable access to 47 Nash Street, Sandgate to enable the arborist to prepare the advice and carry out the work required to satisfy these orders.
(c)The clumps of bamboo situated on Ms Robin Hart’s property at 79 Alexandra Street, Sandgate adjoining Ms Jane Vanessa Carew-Reid’s property must be removed and destroyed, identified as clumps 1 to 4 (inclusive) in the report of The Tree Doctor dated 15 September 2016.
(d)Any culms of bamboo growing on Ms Jane Vanessa Carew-Reid’s property at 47 Nash Street, Sandgate must be destroyed and removed.
(e)Ms Robin Hart will bear the cost of the removal and destruction of clumps of bamboo growing on her property at 79 Alexandra Street adjacent to the boundary shared by Ms Jane Vanessa Carew-Reid’s property.
(f)Ms Jane Vanessa Carew-Reid will bear the cost of removal and destruction of any bamboo growing on her property at 47 Nash Street.
(g)The destruction and removal of the bamboo from Ms Robin Hart’s property at 79 Alexandra Street, Sandgate is to commence no later than 28 July 2018.
Ms Carew-Reid seeks costs of $9,024.25 which is made up of the costs of engaging The Tree Doctor ($580), Mr Cleary ($4235.00) and Arbor Operations ($440) and the cost of witness expenses ($1,464.25) as well as an amount reflecting the time she took off work for the hearing and its preparation ($2,000).
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) provides that other than as provided under the QCAT Act or an enabling Act each party to a proceeding must bear the party’s own costs for the proceeding.
Section 102 of the QCAT Act provides that the Tribunal with discretion to make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding, if the tribunal considers the interests of justice require it to make the order.[41]
[41]QCAT Act s 102(1).
In deciding whether to award costs the Tribunal may have regard to the matters listed in s 102(3) of the QCAT Act. In this case, I am not satisfied that Ms Hart acted in a way that unnecessarily disadvantaged Ms Carew-Reid. Ms Hart made attempts to abate the impact of the bamboo on Ms Carew-Reid’s property. I do not consider that Ms Hart did not have an arguable case. Ms Carew-Reid has not been successful in all of her arguments. It was Ms Carew-Reid’s choice to engage multiple experts. Further, I do not have any clear evidence regarding the financial circumstances of each of the parties. I am aware that Ms Hart also works and spent time preparing her case and attending the Tribunal’s various proceedings during the course of the application.
For those reasons, I do not consider that the interests of justice require me to make any order as to costs.
Both parties seek orders in relation to the construction of a new fence. However, I cannot make such orders in this application. There is a procedure for the construction of a dividing fence set out in the Act.
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