Gallant v Cassar
[2014] QCAT 610
•24 November 2014
| CITATION: | Gallant v Cassar and Anor [2014] QCAT 610 |
| PARTIES: | Karl Gallant (Applicant) |
| v | |
| Anthony Cassar and Brooke Cassar (Respondents) |
| APPLICATION NUMBER: | NDR238-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 7 November 2014 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member McLean Williams |
| DELIVERED ON: | 24 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Within 60 days of the date of these orders tree work is to be undertaken by the Respondent on the trees at the Respondent’s property that are identified in Mr Inman’s report as follows: a. Tree No. 1: Is to have its canopy thinned in order to reduce sunlight obstruction. b. Tree No. 3: Is to be removed altogether. c. Tree No. 4: Those portions of the tree that overhang the boundary of 20 Fremantle Place are to be removed, and the overall mass of the canopy of tree is to be further reduced by the maximum extent possible without adversely impacting on the future viability of the tree, in order to reduce sunlight obstruction. d. Tree No. 5: The overall mass of the canopy of tree No. 5 is to be reduced by the maximum extent possible without adversely impacting on the future viability of the tree. |
| CATCHWORDS: | TREE DISPUTE – where some tree branches overhanging onto neighbouring property and Applicants’ otherwise complaining of obstruction of sunlight – whether trees affecting the land – whether trees causing damage or ‘substantial, ongoing and unreasonable’ interference – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 46, s 66 |
APPEARANCES and REPRESENTATION (If any):
| APPLICANT: | The Applicant was self-represented. |
| RESPONDENT: | The Respondents were self-represented. |
REASONS FOR DECISION
I heard this matter at Maroochydore, on 7 November 2014.
The Applicant is Mr Karl Gallant, who is the owner and occupier of a residence at 20 Fremantle Place, at Kuluin, on the Sunshine Coast.
On 24 December 2012 the Applicant commenced this appliction in relation to a tree dispute, pursuant to the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) against his neighbours, Mr Anthony Cassar and Mrs Brooke Cassar. This matter is one of three seperate (yet very similar) applications, commenced by adjoining neighbours at numbers 16, 18, and 20 Fremantle Place, each against Mr and Mrs Cassar. The three matters (NDR217-12; NDR238-12; and NDR020-13) were heard concurrently, and the evidence in each matter was substantially similar.
The Applicant’s home at 20 Fremantle Place faces in a generally southerly direction. That is to say Fremantle Place is on the southern frontage of the property, and the backyard to the Applicant’s home is then on the northern side of the property. The Respondents’ property is also located further to the north, over what is the Applicant’s back boundary fence. The Applicant complains that a number of large (predominantly) eucalypt trees on the Respondents’ property impact upon his land, in terms recognised by s 46 of the Act. Section 46 of the Act provides:
When is land affected by a tree
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; and
(b)the land—
(i)adjoins the land on which the tree is situated; or
(ii)would adjoin the land on which the tree is situated if it were not separated by a road.
According to evidence placed before the Tribunal, there is a stand of 13 trees along the mutual boundary between the homes owned by the three Applicants, and the Respondents. In a tree assessment report prepared by Mr Benjamin Inman (the QCAT-appointed tree assessor), the stand of trees are referenced as being trees 1 – 13. For convenience, throughout these reasons I will continue to refer to the trees by Mr Inman’s sequence of numbering.
Not all the trees impact equally on all of the Applicants. I take the view that the Tribunal’s jurisdiction may only be enlivened on a ‘tree by tree’ basis. That is to say that an Applicant must first show that a particular tree enlivens s 46 of the Act, before an order might be obtained from this Tribunal in relation to it.
In his materials filed before QCAT Mr Gallant contend that ‘the trees’ behind his home adversely impact upon him in a manner that he says amounts to substantial, ongoing and unreasonable interference with his use and enjoyment of his home because the trees are very large, and branches and large quantities of leaf litter falls from the trees, onto his property. Photographs produced into evidence by the Applicant tend to confirm that. The Applicant complains that he is required to work continually clearing his gutters and roof of leaves and branches and that his tiled outdoor area is stained heavily by rotting leaves. The Applicant is concerned about the risk of limbs and branches falling on his children, and says that his solar hot water system is rendered ineffective for 6 months each year because of shading caused by these trees.
Although the Applicant is concerned about the adverse impact of falling branches and leaf litter, and it is at least arguable that his property is ‘affected by’ the trees for purposes of s 46(a)(ii)(C) of the Act by reason of this tree detritus, the Applicant is primarily concerned about the adverse impact caused by the trees in terms of these now obstructing sunlight onto his property, a factor that degrades the performance of his solar hot water system and that precludes the possibility of his now installing solar electric panels. Accordingly, the Applicant seeks orders from QCAT in relation to the trees on the Respondents’ land primarily in order to remedy what he regards as being a substantial, ongoing, and unreasonable interference with his use and enjoyment of his land, arising by reason of the obstruction of sunlight. In this latter regard, s 66 of the Act specifically provides:
(1)QCAT may make orders it considers appropriate in relation to a tree affecting the neighbours’ land –
(a)…
(b)to remedy, restrain or prevent—
(i) …
(ii)substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
(2)However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—
(a)the tree rises at least 2.5m above the ground; and
(b)the obstruction is—
(i)severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
(ii)severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
In light of s 66(3)(b), this Tribunal is empowered to make orders in relation to a tree obstructing sunlight only if satisfied that the obstruction of sunlight to either a window or a roof is a ‘severe obstruction’.
The Macquarie Dictionary variously defines the adjective “severe” so as to include ‘harsh’ or as ‘hard to endure’. It is on this basis that I must consider the obstruction of sunlight for purposes of s 66(2)(b)(ii) of the Act.
In his statement of evidence filed before the Tribunal on 28 August 2013, the Applicant has elaborated that the amount of shade to his property is increasing over time, because the offending trees have continued to grow. The Applicant again complains that he is unable to install solar panels onto the roof of his home because of this shading. The Applicant has taken advice from Eco-Smart Solar (a Sunshine Coast solar panel installation company) and has been told that it would not be viable to install a solar system because his roof is currently subject to too much shade.
The Respondents have put into evidence a contrary expert report prepared by Mr Trevor Berrill and Mr Dave Keenan from Sustainable Energy Systems Consultants (‘Sustainable Energy Systems’), that seeks to show that shade from the Respondents’ trees will not preclude the possibility of any of the Applicants now installing a solar array. Neither of the authors of the Sustainable Energy Systems report were made available for cross-examination before the Tribunal, although to be fully fair to the Respondents none of the Applicants requested that the gentlemen from Sustainable Energy Systems be required at the hearing for cross-examination. Although that forensic oversight is completely understandable in the case of lay people who are self-representing, the result of it is that, in the absence of the authors of that report – to provide an explanation of the assumptions that have been used in the creation of it – it is now very difficult for me to interpret the data contained therein, nor to draw the necessary distinctions between what appear to be generalised statements about the performance of solar systems and the specific performance attributes likely to be achieved by any solar array that is installed on the roof of (in this instance) 20 Fremantle Place.
On the front cover of the Sustainable Energy Systems report is a 2013 photograph taken from Google Earth that does reveal the three Applicants’ homes to be very substantially shaded by the Respondents’ trees. Yet, in the body of that report it seems to state that solar panel arrays installed on either the western face of the roof of the house at 20 Fremantle Place might still achieve ‘up to’ 79% of the performance efficiency of an array installed on the northern face of the roof, and that the best location for solar panels on the roof of this house would be on the western roof. Although the overall effect of the report would seem to be to demonstrate that it would still be possible to ensure a solar installation on the roof of the applicant’s home, the report itself is so couched by assumptions that I do not feel I can repose much faith in it without some further elaboration of those assumptions. At the end of it, when I assess the two solar reports, I much prefer the evidence obtained by the applicant wherein he has been advised that it would not presently be economically viable to install a solar system on the roof at 20 Fremantle Place.
In relation to the test required by s 66(3) of the Act and in light of the evidence that has been placed before QCAT, I am satisfied that there is, in this instance, a ‘severe obstruction’ of sunlight to the roof of the three dwellings on Fremantle Place Kuluin, at least in respect of certain trees. I am therefore satisfied that this Tribunal may make orders to remedy that sunlight obstruction at least in relation to those particular trees for which there is evidence of sufficiently adverse impact on the Applicants.
The QCAT Tree Assessor’s Report and the Applicants’ Arboreal Evidence
The QCAT-appointed tree assessor in this instance was Mr Benjamin Inman. Mr Inman attended at the Respondents’ and the Applicants’ property on 2 March 2013 and has since provided a report of that inspection. According to that report, not all of the 13 trees impact adversely on the Applicant’s home. Only those trees that fit within s 46 of the Act insofar as it pertains to the Applicant’s home at (in this instance) number 20 Fremantle Place are now referred to in these reasons for decision.
Tree No. 1 is a mature eucalyptus Propinqua located approximately 7 metres north of the fence line and behind the Applicants’ home. Mr Inman notes that this tree reaches to the fence line at No. 20 Fremantle Place, yet does not extend beyond it. Although Mr Inman does not recommend that there be any tree work at this stage, I do not think that advice takes sufficient account of the phototropic impact of this tree on the Applicant. This tree should have its canopy thinned in order to improve the flow of sunlight onto the property at No. 20 Fremantle Place.
Tree No. 2 is a juvenile Jacaranda tree, some 3 metres in height that has been planted very close to the fence line with No. 20 Fremantle Place. This tree has been previously pruned, yet Mr Inman says that it is inevitable that this will continue to grow towards the south and over the fence line. Although this tree creates insufficient impact on the Applicant at this stage to warrant orders by this Tribunal, consideration should be given to its entire removal now, whilst it may still be removed economically, and before it becomes a future problem.
Tree No. 3 is a mature eucalyptus Propinqua located approximately 3 metres north of the fence line. Mr Inman notes that this tree extends into 18 Fremantle Place over the north-western corner of the house by approximately 3 metres, and that it extends over the property at No. 20 by approximately 2 metres at a height approximately 12 metres above ground height. Mr Inman also notes that the tree contains some deadwood in the upper canopy. Although Mr Inman recommends that ‘tree works’ (as defined), be confined to only the removal of deadwood greater than 10 millimetres in diameter from the tree canopy, I am of the view that this recommendation does not go far enough, and takes insufficient account of the phototropic propensities of this tree, which have not been adequately considered by Mr Inman’s recommendation. Because of its adverse impact on sunlight onto the Applicant’s property (and the adjoining property at No. 18 Fremantle Place) it ought be removed altogether.
Tree No. 4 in Mr Inman’s report is a semi-mature eucalyptus Propinqua located approximately 3 metres north of the fence line, and opposite the western end of the outdoor living/pool area of 18 Fremantle Place. Although Mr Inman notes the tree to be of good structure, health and vigour, he further notes the entire width of the tree to overhang the applicants’ property at No. 20 by approximately 500 millimetres at a point approximately 2 metres above ground height. Although Mr Inman is of the view that no tree work is required in respect of tree No. 4, in my view those portions of the tree that overhang the applicants’ property at No. 20 Fremantle Place should now be wholly removed, and the overall mass of the canopy of tree No. 4 should then be further reduced, by the maximum extent possible without adversely impacting on the future viability of the tree, in order to thereby reduce the sunlight obstruction by that tree onto the house owned by the Applicants.
Tree No. 5 in Mr Inman’s report is a semi-mature eucalyptus Propinqua, located approximately 3 metres north of the fence line, and opposite the western end of the outdoor living/pool area of 18 Fremantle Place. Although Mr Inman notes the tree to be of good structure, health and vigour, he further notes the entire width of the tree to overhang 18 Fremantle Place by approximately 2 metres, at a point approximately 8 metres above ground height, and mostly over the pool area of 18 Fremantle Place. Although Mr Inman is of the view that no tree work is required in respect of tree No. 5, in my view this conclusion also takes insufficient account of the phototropic propensities of that tree on the homes at both No. 18 and No. 20 Fremantle Place. Those portions of the tree that overhang the applicants’ property at 18 Fremantle Place should now be wholly removed, and the overall mass of the canopy of tree No. 5 should then be further reduced by the maximum extent possible without adversely impacting on the future viability of the tree, in order to thereby reduce the sunlight obstruction by that tree onto the house owned by the Applicants.
In summary, and within 60 days of the date of these orders this Tribunal orders that tree work be undertaken by the Respondents on the trees at the Respondents’ property that are identified in Mr Inman’s report in response to application NDR238-12 in accordance with the following:
(a) Tree No. 1: should have its canopy thinned in order to improve the flow of sunlight onto the property at No. 20 Fremantle Place.
(b) Tree No. 2: Although no orders can be made in respect of this tree at this stage, consideration should nonetheless be given to its entire removal now, whilst it may still be removed economically, and before it becomes a future problem.
(c) Tree No. 3: Should be removed altogether.
(d) Tree No. 4: Those portions of the tree that overhang the Applicant’s property at 20 Fremantle Place should now be removed, and the overall mass of the canopy of tree No. 4 should then be further reduced by the maximum extent possible without adversely impacting on the future viability of the tree, in order to thereby reduce the sunlight obstruction by that tree onto the house owned by the Applicant.
(e) Tree No. 5: Insofar as this tree impacts on the house at No. 20 Fremantle Place, the overall mass of the canopy of tree No. 5 should be reduced by the maximum extent possible without adversely impacting on the future viability of the tree.
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