Dunn and Anor v Reynolds - [2024] QCAT 45

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dunn and Anor v Reynolds [2024] QCAT 45

PARTIES:

WAYNE DUNN AND KRISTINE DUNN

(applicants)

v

MARK ANTHONY REYNOLDS

(respondent)

APPLICATION NO/S:

NDR004-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

30 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

1.     The Respondent is to prune the canopy of all trees along the eastern boundary of their property, to reduce the height to no more than level with the bottom of the guttering on the roof of the Applicants’ dwelling.

2.     The Respondent is to conduct lateral reduction pruning of all trees along the eastern boundary of their property, to reduce the canopies to behind the alignment of the dividing fence structure/boundary.

3.     The Respondent is to remove the Tuckeroo tree (Cupaniopsis sp.) to ground level.

4.     All tree debris is to be removed from the Applicants’ and Respondent’s property after the pruning is performed.

5.     The work required by this order is to be carried out:

(a)     initially within 60 days of this order and thereafter not less than annually to maintain the canopies of the trees on the eastern boundary to the height and spread of the initial pruning.

(b)     by an Australian Qualified Framework level 3 arborist with relevant public liability and work cover insurance cover.

(c)     without the use of climbing spurs, climbing gaffs of climbing irons; and

(d)      at the Respondent’s cost

6.     If the work is not completed within 60 days, the Applicants may arrange to have the work performed as above.

7.     Should the Applicants be required to arrange the work and/or the ongoing pruning stipulated above in default of it being done by the Respondent:

(a)     the person(s) undertaking the work is/are entitled to enter the Respondent’s land to carry out the work upon the Applicants giving 14 days written notice of that intention to the Respondent.

(b)     the costs incurred by the Applicants engaging a tree lopper and arborist to do the work in default of the Respondent are recoverable from the Respondent as a debt without further notice being required to be given.

8.     These orders remain in force and effect for a period of 10 years from the date hereof.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicants filed an application for resolution of a tree dispute – where the applicants claimed a tree interfered with the use and enjoyment of their land – whether the tree was likely to cause serious injury or damage – where the tree has substantial overhang onto the applicants’ property – where a tree-keeper is responsible for proper care and maintenance of the tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 12, s 14, s 15(1), s 45, s 46, s 48, s 48(1)(a), s 52, s 61 s 65, s 66, s 71, s 72, s 73, s 74, s 75

Belcher…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 45
Decision Date: 30 January 2024

CaseChat Overview and Summary

The case of Dunn and Anor v Reynolds involves a dispute between neighbours over the maintenance and impact of trees on the Dunns' property. The Dunns filed an application for the resolution of the tree dispute, claiming that the trees interfered with the use and enjoyment of their land. They asserted that a particular tree, the Tuckeroo, was likely to cause serious injury or damage due to its substantial overhang onto their property. The Respondent, Reynolds, was held responsible for the proper care and maintenance of the trees as the tree-keeper.

The legal issues before the court were whether the trees, particularly the Tuckeroo, were likely to cause serious injury or damage to the Dunns’ property or interfere substantially with their use and enjoyment of the land. Additionally, the court needed to determine if the Respondent was fulfilling their responsibility as the tree-keeper by adequately maintaining the trees.

The court found that while the Tuckeroo tree was indeed impacting the fence and likely to cause serious damage within the next 12 months, the other trees had not caused or were not likely to cause serious injury or damage. The court also acknowledged that there was some interference with the Dunns’ use and enjoyment of the land due to plant matter and shading of the solar panels, but this was not substantial or severe. The overhanging branches, however, meant that the Tribunal had jurisdiction to make orders about the trees. The Respondent was found to be neglecting the maintenance of the trees, particularly the branches overhanging the Dunns’ property. Therefore, the Tribunal had the authority to make orders regarding the pruning and maintenance of the trees in line with the tree assessor’s recommendations.

The court ordered that the Respondent prune the canopy of all trees along the eastern boundary of their property to no more than the level of the bottom of the guttering on the Dunns’ dwelling, conduct lateral reduction pruning to ensure the canopies are behind the dividing fence, and remove the Tuckeroo tree to ground level. The work must be performed by a qualified arborist and the Respondent bears the cost. If the Respondent fails to comply, the Dunns can arrange for the work to be done, with the costs recoverable from the Respondent. These orders remain in force for 10 years.

Orders

Orders of the court

1. The Respondent is to prune the canopy of all trees along the eastern boundary of their property, to reduce the height to no more than level with the bottom of the guttering on the roof of the Applicants’ dwelling.

2. The Respondent is to conduct lateral reduction pruning of all trees along the eastern boundary of their property, to reduce the canopies to behind the alignment of the dividing fence structure/boundary.

3. The Respondent is to remove the Tuckeroo tree (Cupaniopsis sp.) to ground level.

4. All tree debris is to be removed from the Applicants’ and Respondent’s property after the pruning is performed.

5. The work required by this order is to be carried out:

(a) initially within 60 days of this order and thereafter not less than annually to maintain the canopies of the trees on the eastern boundary to the height and spread of the initial pruning.

(b) by an Australian Qualified Framework level 3 arborist with relevant public liability and work cover insurance cover.

(d) at the Respondent’s cost

6. If the work is not completed within 60 days, the Applicants may arrange to have the work performed as above.

7. Should the Applicants be required to arrange the work and/or the ongoing pruning stipulated above in default of it being done by the Respondent:

(a) the person(s) undertaking the work is/are entitled to enter the Respondent’s land to carry out the work upon the Applicants giving 14 days written notice of that intention to the Respondent.

(b) the costs incurred by the Applicants engaging a tree lopper and arborist to do the work in default of the Respondent are recoverable from the Respondent as a debt without further notice being required to be given.

8. These orders remain in force and effect for a period of 10 years from the date hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Respondent raised concerns in their submissions dated 1 March 2023 that the reflection of the sun from the Applicants’ solar panels is causing a nuisance to the Respondent. This was the first time the issue was raised, there was no finding to support this assertion in the tree assessor’s report, and the Respondent had not provided any evidence as to what the nuisance is and how it is being caused by the solar panels. 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 In terms of the Tuckeroo tree which is growing directly in contact with the dividing fence structure, I find that it is impacting the fence and is likely to cause serious damage to the Applicants’ property, being the dividing fence, within the next 12 months. I am not satisfied at this time that any of the trees, other than the Tuckeroo, have caused or are likely to cause serious injury to a person or serious damage to the land or property on the land within 12 months. In relation to whether the trees cause substantial, ongoing, and unreasonable interference with the Applicants’ use and enjoyment of the land, I accept that there is some interference with the Applicants’ use and enjoyment of the land arising out of plant matter dropping onto their property and the shading of the solar panels. However, it is not substantial and has not caused a severe obstruction of sunlight. There are, however, overhanging branches which means that the Applicants’ property is affected by the trees, and so the Tribunal has jurisdiction to make orders about the trees. The responsibility for controlling the branches and trees, by cutting and removing any branches of the trees that overhanging the boundary, so they do not extend over the dividing fence, is the responsibility of the Respondent as the tree-keeper. I am satisfied to the requisite standard that the Respondent is not cutting and removing branches of the trees that overhang the Applicants’ land. As such it is open to the Tribunal to make such orders pursuant to s 66 of the Act. Given the tree assessor found that it is likely possible that the trees are contributing to partial obstruction of sunlight reaching the Applicants’ solar panels, albeit it was not a substantial or severe obstruction at the time of his report and the pruning and maintenance of the trees to the level of the Applicants’ dwelling’s guttering would likely remove the potential for the trees to obstruct the sunlight reaching the Applicants’ dwelling, I consider it appropriate to make orders for pruning and maintenance in line with the tree assessor’s recommendation. There is dispute in terms of the level the trees should be pruned to. The tree assessor recommended that the trees should be pruned to the level of the Applicants’ dwelling’s guttering, being 2.5 metres, as this would likely remove the potential for the trees to obstruct sunlight reaching the Applicants’ dwelling.

Ratio Decidendi

Legal Principle Established

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