Johnson v Body Corporate for Oxlade Terraces Community Titles Scheme 3335
[2024] QCAT 169
•23 April 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Johnson v Body Corporate for Oxlade Terraces Community Titles Scheme 3335 [2024] QCAT 169
PARTIES:
ROBERT BERES THOMAS JOHNSON (applicant)
v
BODY CORPORATE FOR OXLADE TERRACES COMMUNITY TITLES SCHEME 3335 (respondent)
APPLICATION NO/S:
NDR005-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
23 April 2024
HEARING DATE:
26 March 2024
HEARD AT:
Brisbane
DECISION OF:
Member Jensen
ORDERS:
1. That the respondent carry out work to prune the branches of Tree 1 (mature swamp cypress) and Tree 2 (native frangipani) back to the shared boundary line, such work to be completed within two months of the date of these orders;
2. That the pruning work required by order 1 be carried out on an ongoing basis annually commencing 1 July 2025;
3. That the pruning work required by orders 1 and 2 be carried out by a minimum AQF level III arborist in accordance with AS 4373 – 2007;
4. That the crown damage in Tree 1 be aerially inspected by a minimum AQF level 5 arborist to survey broken limbs in the upper canopy and prescribe any necessary remedial works based on their findings. This inspection is to be carried out within two months of the date of these orders. The respondent shall carry out and complete any recommended remedial works within two months of receiving said recommendation. This order 4 shall not limit or affect the operation of orders 1, 2 and 3; and
5. That the respondent pay the costs associated with carrying out orders 1 to 4 inclusive.
CATCHWORDS:
TREE DISPUTE – where agreement not reached – application for orders to resolve the dispute about overhanging branches and leaf litter affecting use and enjoyment of neighbour’s land – consideration of the legislation and the facts and finding that the neighbour’s adjoining land is affected by two trees.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), Chapter 5
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
K Hilton as representative of the respondent
REASONS FOR DECISION
Background
This is an application filed in the tribunal on 14 January 2022 for orders under Chapter 3 Part 5 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) regarding two trees.
In brief, the application seeks orders that the respondent carry out work on the two trees and pay the costs for carrying out these works. The applicant also seeks a costs order for reimbursement of the filing fee and the costs expended in obtaining an arborist’s report to assist the tribunal.
The respondent rejects the application arguing in the response that the application is without merit and that any such orders are not required to encourage the respondent to continue carrying out their responsibilities as the tree keeper.
The appointed tree assessor carried out his inspection on 23 July 2022 and his report is dated that same date (‘the report’). The report states that the role of the arborist is to gather facts by observation and other simple tree tests about the trees and alleged tree damage, obstructions etc and provide expert recommendations that help the tribunal to determine:
(a)if the dispute is within the jurisdiction of the Act;
(b)if the orders sought are appropriate with respect to the Act; and
(c)specify appropriate actions, if any, that may lead to the efficient and fair resolution of the tree dispute.
Jurisdiction
Section 59 states that Part 5 of the Act (QCAT orders to resolve other issues about trees) applies if a neighbour’s land is affected by a tree and the neighbour cannot resolve the issue using the process under Part 4 of the Act.
Further, the Act provides at section 61 that –
QCAT 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 QCAT, land is affected by the tree.
I find that the tribunal has jurisdiction to hear and decide this matter for the reasons that follow.
The report states that Tree 1 is a mature swamp cypress with an approximate height and spread of 9m and 8m respectively; Tree 2 is a native frangipani with a height and spread of 12m and 8m respectively, and that both trees are located at 67 Oxlade Drive, New Farm (‘the land’). From the report’s descriptions of the two trees, I find that both are “trees” within the meaning of section 45 of the Act. The parties have not contended otherwise.
Pursuant to section 46 of the Act, land is affected by a tree at a particular time if branches from the tree overhang the land and the land adjoins the land on which the tree is situated. The evidence is that 25 Turner Street, New Farm is the adjoining land (‘the adjoining land’) and that the applicant is its registered owner and a neighbour in terms of the Act. I accept that the report is reliable in terms of its technical descriptions of the trees and the observation that branches from the land overhang the adjoining land. Further, the report states that “the canopy of Tree 1 extends approximately three meters across the dividing fence and the canopy of Tree 2 extends approximately 3-4 meters across the diving fence”.[1] For these reasons I find that the adjoining land is affected by the trees. At the hearing, the parties did not contend otherwise.
[1]Pages 2 and 4 of the report.
I accept the evidence in the report as reliable and find that both trees were in-situ at the time of filing this application because the report states at the foot of page 6 “Both trees have been in-situ for well over thirty years…”.
The parties addressed the requirements of section 65 of the Act at the hearing and both agreed they were satisfied. I agree that these requirements are satisfied and find accordingly for the following reasons -
(a)There were meetings between the parties and there was extensive email correspondence starting from 2019. The parties were given the opportunity to reach agreement based on the report;
(b)The parties agreed that there were no steps required to be taken to resolve the issue in respect of any relevant local law, local government scheme or local government administrative process and none were brought to my attention at the hearing;
(c)The uncontradicted evidence is that the branches of both Tree 1 and Tree 2 extend to a point over the adjoining land that is at least 50 cm from the common boundary and the issue cannot be resolved under Part 4;
(d)The applicant has served the application as required by section 63 of the Act.
I am also satisfied from the parties’ evidence that they did not resolve their differences using the processes under Part 4 of the Act.
Consideration
The response filed on 11 April 2022 requests that no orders be made because the application is without merit.
Agreement
The applicant produced evidence of an unperformed agreement to trim the trees as a remedy to what he says is the tree litter issue:
(a)At the site meeting on 24 November 2019 the parties agreed to the effect that the two trees would be trimmed to the shared boundary line and a cherry picker used to trim the mid and upper canopies. As this was unplanned work, approval for the additional expense was required from the respondent.
(b)Approval of the extra expenses was given by the body corporate on 16 March 2020 creating the agreement.[2]
[2]Respondent’s email dated 17 March 2020.
I find the evidence of the meeting to be reliable and compelling because it is supported by the emails from the respondent dated 2 March 2020 and 17 March 2020.
The respondent denies any agreement but I find that the parties did reach an agreement on 24 November 2020, in the terms as set out in paragraph [14][a]. I place a significant weight on this agreement.
Amenity
The issue is whether the orders sought by the applicant will have a negative impact on the amenity of the area and therefore should not be made.
I infer from the report that amenity was an important factor when concluding to the effect that both trees have been well managed and are not interfering with the adjoining property other than by losing foliage; the trees are in an area surrounded by trees and shrubs all contributing to leaf drop and that they have been in situ for well over 30 years.[3]
[3]Page 6 of the report.
I also consider the applicant’s evidence that the conduct of the parties in maintaining the trees is relevant in respect of the issue of amenity. I accept the evidence that the respondent has previously been willing to trim significant branches of the two trees, with no amenity concerns.
Furthermore, the respondent has not raised amenity concerns when seeking orders against the applicant where the response at paragraph 5 provides that the respondent “would expect that reciprocal orders will be made against the applicant themselves for all tree and plant growth extending from their side of the boundary, along the shared boundary closes the trees to the respondent’s side of the boundary.”
In addition, after reviewing the photo evidence, I accept the applicant’s claim that the further trimming of the mid and upper canopy on one of the trees will have little impact on amenity as it will largely only be visible to the applicant.
The issue of amenity is a relevant factor for consideration. However, when I weigh the evidence, I find that the contribution the two trees make to the amenity of the land will not be affected if the orders sought by the applicant are made.
The report
The report states that whilst hazards can be reduced by selective canopy modification, any actual reduction to litter by removing limbs is invariably grossly outweighed by the damage inflicted.[4] I read this statement as focussing on the damage caused by the removal of limbs, not their pruning. The applicant is not seeking orders for removal of limbs, but rather is seeking orders that the overhang be trimmed or pruned back to the boundary line.
[4]Page 6 of the report.
The report recommends that Tree 2 requires structural and lateral reduction pruning to remove deadwood, redundant and elongated branches that could impact neighbouring properties, which is a standard maintenance procedure for a qualified tree practitioner. This should be conducted by a minimum AQF level III arborist in accordance with AS 4373 – 2007. As to Tree 1, it is recommended that it should be aerially inspected by a minimum AQF level 5 arborist to survey broken limbs in the upper canopy and prescribe any works accordingly based on their findings.
Substantial leaf matter
The respondent’s evidence is that the amount of tree litter is normal. However, I find from the evidence before me that leaf litter from Tree 1 and Tree 2 is substantial, ongoing and an unreasonable interference with the use and enjoyment of the adjoining land for the reasons that follow.
The applicant provided evidence that the volume of leaf material is approximately 1.25 times the volume of the Brisbane City Council wheelie bin and that all leaf material that will not fit into the wheelie bin is placed along the fence line. There is photo evidence of leaf material lying on the adjoining land over an approximate 24 to 36 hour period predominantly from Tree 1.[5] There is an email from the respondent that states the “mounting garden mulch sitting against your side of the fence, to a depth of two feet in some places, also added to the fence’s decay”.[6] I accept this evidence as reliable and compelling as to the extent of litter from the trees.
[5]Attachment 2 to statement of R Johnson.
[6]Email dated 3 March 2020.
I place a lot of weight on this finding.
Conclusion
The applicant seeks orders for reimbursement of ½ of the costs of the report in the amount of $500 and of the filing fee of $358. The applicant relies on practice direction No 7 in support of its application.
According to directions given on 29 April 2022, the parties agreed to each pay $500 towards the report costs. As these costs have already been dealt with by agreement, I do not make any orders in respect thereof. Further, I am not satisfied that it is appropriate to make an order for the reimbursement of the filing fee. Practice Direction No 7 deals with applications for review of decisions made about weapons and as such it does not assist the applicant in this matter.
The respondent has sought an order requiring the applicant to trim a poinciana located in the applicant’s front yard. However, I make no orders in relation to the poinciana because it is not the subject of this application and also because the parties have not engaged with the Part 4 processes of the Act in relation to this tree which means that Part 5 of the Act does not apply.
When I consider and weight the findings, the applicant has satisfied me that orders are required in this matter in relation to Tree 1 and Tree 2. The orders below are consistent with the recommendations in the report.
I order as follows –
1. That the respondent carry out work to prune the branches of Tree 1 (mature swamp cypress) and Tree 2 (native frangipani) back to the shared boundary line, such work to be completed within two months of the date of these orders;
2. That the pruning work required by order 1 be carried out on an ongoing basis annually commencing 1 July 2025;
3. That the pruning work required by orders 1 and 2 be carried out by a minimum AQF level III arborist in accordance with AS 4373 – 2007;
4. That the crown damage in Tree 1 be aerially inspected by a minimum AQF level 5 arborist to survey broken limbs in the upper canopy and prescribe any necessary remedial works based on their findings. This inspection is to be carried out within two months of the date of these orders. The respondent shall carry out and complete any recommended remedial works within two months of receiving said recommendation. This order 4 shall not limit or affect the operation of orders 1, 2 and 3; and
5. That the respondent pay the costs associated with carrying out orders 1 to 4 inclusive.
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