Ganley v Olds & Anor
[2024] QCAT 29
•19 January 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Ganley v Olds & Anor [2024] QCAT 29
PARTIES:
HELEN GANLEY (applicant)
v
PETER OLDS AND JANICE LORRAINE OLDS (respondent)
APPLICATION NO/S:
NDR183-21
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
19 January 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Richard Oliver
ORDERS:
1. The respondents cut back/prune any branches from trees on the respondents’ land that overhang the common boundary by more than .5 of a metre.
2. The respondents take such steps as are necessary to terminate any tree roots intruding into the applicant’s property from trees on the respondents’ property which might include the installation of root barrier or such other means as might be recommended by an arborist.
3. The respondent’s pay to the applicant the sum of $718.00 by 28 February 2024.
4. The work referred to in paragraphs (1) – (2) above must be carried out by 30 March 2024.
5. The respondents pay to the applicant the filing fee in the sum of $358.00.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where respondents’ vegetation along the common boundary intrudes on the applicant’s land – where respondents have failed or neglected to keep the vegetation cut back – whether respondent should be required to remove the vegetation interfering with the applicants’ use of their land.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The applicant and the respondents share a common boundary. There is a fence on the common boundary. The applicant has four separate residential buildings on her land which she rents. Her land is generally clear of vegetation The respondents have a number of trees growing just inside their side of the common boundary. Branches of some of the trees overhang the boundary line and deposit leaves on the roof of one of the residences. Also, surface tree roots intruded onto the applicant’s land.
There has been a long running dispute between them about vegetation on the respondent’s land overhanging the applicant’s property. The applicant contends that it is the tree roots from the respondents’ trees that have clogged up the waste sewer pipes. She has had to engage a plumber to clear root fibre from the pipes.
The respondents have been asked to trim back the overhanging tree branches and to maintain the vegetation so that the applicant’s land is generally free from this nuisance.
The respondents have resisted any request to manage the vegetation on their side of the common boundary. They have also refused to pay for any plumbing costs. As a result the applicant filed an application for orders from the Tribunal requiring the respondent to maintain the vegetation on their side of the common boundary and reimburse her for the plumbing costs and the costs of trimming back the overhanging branches.
The application is brought under Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA’). The NDA imposes certain obligations on tree keepers being the owners of the freehold land where the trees are located.[1] Here there is no dispute that the trees the subject of the application are located on the respondents’ land and they are the tree-keepers. Therefore, they are responsible for the trees. The NDA also give the Tribunal broad powers to make orders,[2] in particular:
(a)to prevent serious injury or any harm 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.
[1]NDA s 48.
[2]NDA s 66(2)
In considering whether there has been unreasonable interference the Tribunal can have regard to, amongst other things, the size of the applicant’s land and whether the trees were planted before the applicants acquired the land.[3] The NDA also imposes an obligation on both parties to take all reasonable steps to resolve the dispute under any relevant local law, local government scheme or local government administrative process.[4] The material filed by both parties demonstrates that over the years there has been some attempt to resolve the dispute, by exchange of correspondence, but unfortunately the respondent has been resistant to doing anything to address the applicant’s concerns, as perceived by her.
[3]NDA s 75
[4]NDA s 72
Because of this impasse, the Tribunal ordered that an independent tree assessor be appointed to provide a report about the trees on the common boundary. A report dated 13 August 2022 has been prepared by Mr David Roberts which addresses the issues raised by the applicant. He identified a number of trees on the respondent’s land and some of the lots behind the applicant’s land to the south and the east. One of the reasons for obtaining such a report is to provide some objective expert evidence to assist the Tribunal in coming to a decision about the application. As is often the case, if the parties have to resort to the Tribunal, there is inevitably a breakdown in the communication between them to resolve the dispute.
Turning then to the report, in section 2.2 there is a list of trees of which those identified as Tree A to Tree G are all located on the respondents’ land. The more significant of these are the mango tree and the kauri pine towards the rear of the property. The kauri tree is 12m high with a 6 metre canopy spread. Trees H – J are on the lots to the rear of the applicants property and they are a mango, an umbrella and a bauhinia tree.
Live and dead surface tree roots were noted, and photos of same are attached to the report. The dead roots were from trees already removed by the respondents. Although Mr Roberts does not specifically say, the live roots, given their proximity to the boundary, are likely from the respondents’ trees.
There is a very good, and informative, photograph along the boundary from the street frontage. It shows overhanging branches onto the applicant’s land towards the mid to the back corner of the respondents’ property. There is a shaded area in the corner where the boundary fences meet.[5] Mr Olds maintains that trees A – D are at the front half of his property, which are clear of the boundary. He maintains that only tree E is close the applicant’s units. This seems inconsistent with the aerial photo which would suggest that it is the mango tree and perhaps the kauri tree that is seen to be overhanging the boundary. However, it is not apparent in the photo that the overhanging branches are close to any building.
[5]Roberts report photos on page 7 and 9.
Mr Roberts gave consideration to the matters referred to in ss 70 – 75 of the NDA which include the extent of general vegetation in the area, trees, and also maintenance undertaken by the applicant. He does not suggest that the trees on the respondent’s property cause any substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land. He does not recommend any work being done to the trees to prevent leaf litter from being deposited on the applicant’s property.
As for the tree roots invading the applicant’s sewer system, he is not in a position to say the roots come from the respondent’s trees. The is a possibility that the tree roots could be from other trees surrounding the applicant’s property, with some tree roots being able to travel 30-40 metres. Furthermore, he makes the observation that modern plumbing material, PVC as opposed to older earthen ware pipes, prevents the ingress of tree roots. Just on this point, Mr Olds’ evidence about there being no interconnection between the pipes to the sewer main on his property is consistent with the way sever systems work. From the main, there is a ‘jump up’ into which a household’s sewer pipe is connected.
There is no reason not to accept the applicant’s evidence that she has had to have the blockages caused by tree roots cleaned out by a plumber. The invoices attached to her statement is sufficient proof of that. However, there remains doubt as to the tree or trees from which the roots emanate. The only way this can be established, it seems, is by excavating. The Tribunal has power to compensate the applicant for this cost[6] but it must be reasonably satisfied that it is the respondents’ trees that are the cause of the problem.
[6]NDA s 66(5)(f)
The applicant has addressed the comments of Mr Roberts in a comprehensive statement in the nature of a table with his comments on one side and her critique on the other side. Some of the relevant matters are:
(1) The report refers to 4 dwellings on lots 163 and 165, however it is only the two which are on 165 which is the block next to the respondents. She says any reference to lot 163 is irrelevant, which is probably right.
(2) She says regular maintenance is carried out on the roof of both dwellings on lot 165. There is no reason not to accept this evidence.
(3) It is evident there are no trees on the applicant’s property.
(4) She is critical that Mr Roberts did not consider when the trees at the rear of lot 167 were planted, she referred to photos before she build the dwelling at the back. All of this seems to be to have little relevance. If the trees are causing unreasonable interference, by root infestation or overhanging branches etc, in this case the date of planting makes little difference to the outcome. Again, the dispute about privacy screening in this case has little relevance.
(5) She contends that the type of trees planted on the suburban blocks are inappropriate. Be that as it may, if the trees cause unreasonable interference the applicant has rights under the NDA. The Tribunal will not order the removal of trees simply because a neighbour considers they are inappropriate.
(6) With respect to the sewer lines, the applicant mounts an argument to contradict the opinion of Mr Roberts. That is there are no trees on her property, there are live tree roots from the respondents’ property and there is no other plausible explanation for the tree root infestation. There is some force to the argument but it expresses an opinion rather than actual evidence of the species of tree root causing the infestation.
(7) With respect to the live tree roots encroaching her property, there are photographs of this attached to her application and submission.
Prior to commencing the application and the receipt of the tree assessor’s report the applicant wrote to the respondents on several occasions about her complaints. She enclosed invoices for the cost of trimming back the trees overhanging her property and costs of clearing the sewer lines. She has sought reimbursement of these costs.
Having regard to the proximity of the trees and the photos of live tree roots, I am prepared to accept it is the roots from the respondents’ trees that are causing the blockages in the sewer lines. However, as to the recovery of the costs to clear the lines, from the applicant’s material, she first put the respondents on notice about this issue in a letter of 14 June 2020. In that letter she said:
I am the owner of 163 and 165 Ferry Street which makes us neighbours.
It would appear form Google Earth photos that your trees are on top of the boundary line and my plumber has said that they are causing root blockages in my sewer pipes. And I don’t have any trees.
Two of the invoices later attached to her further correspondence of 6 March 2021 pre-date the initial letter of complaint. The invoices to her rental agent are dated 6 February 2019, 4 March 2020. They total $639.38. Prior to this, the respondents were unaware of any problems with the tree roots. After the respondents were on notice about the issue with tree roots, they should have taken steps to address the problem. No doubt it is ongoing. They are liable for the invoice of 18 November 2020 for $198.00 for further clearing of the sewer line.
The respondents need to do something about the tree roots intruding onto the applicant’s property which is short of tree removal. The root system can be terminated on their side of the boundary and root barrier installed. However, if they want to preserve the trees, then an arborist should be involved. I propose to make orders about maintenance of the tree roots system, because the applicant should not be put to the expense and inconvenience of having to deal with blocked sewer pipes.
It ought to have been obvious that the trees overhanging the boundary needed to be trimmed back. This is evident from the photographic evidence, and indeed on the online maps, such as Google maps. It was unnecessary for the applicant to make a specific complaint about this, it is an ongoing obligation under the NDA of the tree-keeper. I propose to allow reimbursement of $520.00 for this work. Gutter maintenance is another ongoing issue, however leaves can be blown onto roof tops from all directions, not necessarily from overhanging branches although this would contribute. I don’t propose to allow for this cost.
Although Mr Roberts does not recommend any specific action, however given the proximity of the trees and the tree root invasion I proposed to make orders about on-going maintenance. Insofar as this relates to reducing the height of the trees, I adopt his recommendations.
The applicant also applies for the filing costs of the application. In view of the orders to be made, I propose to allow reimbursement of that outlay.
The proposed orders are:
(a)The respondents cut back/prune any branches from trees on the respondents’ land that overhang the common boundary by more than .5 of a metre.
(b)The respondents take such steps as are necessary to terminate any tree roots intruding into the applicant’s property from trees on the respondents’ property which might include the installation of root barrier or such other means as might be recommended by an arborist.
(c)The respondent’s pay to the applicant the sum of $718.00 by 28 February 2024.
(d)The work referred to in paragraphs (a) – (b) above be carried out by 30 March 2024.
(e)The respondents pay the applicant the filing fee of $358.00
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