Leahy v Daly
[2024] QCAT 328
•6 August 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Leahy v Daly [2024] QCAT 328
PARTIES:
ALLEN EDWARD LEAHY (applicant)
ROSEMARIE JEAN LEAHY (applicant)
v
MICHAEL DALY (respondent)
APPLICATION NO/S:
NDR093-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
6 August 2024
HEARING DATE:
On The Papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
The application for tree dispute is dismissed.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicants filed an application for tree dispute – where the application alleged branches from the respondent’s trees extended over the common boundary by 3 metres – where a tree assessor attended to inspect and provided a report – where the tree assessor determined the claims of the applicants were incorrect and exaggerated and photographs submitted in evidence by the applicants were not of the applicants’ property – where the assessor determined no work was required to be done – where the assessor’s recommendations were followed by the Tribunal
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46(a)(i), s 65, s 66
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
Mr Daly’s garden was designed and landscaped by his mother in 1961. He has lived there since then. He believes he takes good care of it.
Mr and Mrs Leahy (‘the Leahys’) purchased a property neighbouring Mr Daly’s at end 2018. They complained about tree branches from his property extending over the common boundary. They filed an application for a tree dispute in the Tribunal.
In their application the Leahys claim some of the branches from Mr Daly’s garden extend 3 m over their common boundary. They attached photographs. They say that debris from the trees falls into the gutters of their house, roots from his trees encroach into their garden bed, they cannot grow grass or plants because of the trees and there are termite issues.
Amongst other things the Leahys seek orders requiring Mr Daly to remove trees and prune branches and remove or prune roots of trees, and an order for the costs of carrying out the work to be paid by Mr Daly - also an order for an appropriately qualified arborist to prepare a report.
They claim substantial interference with the use and enjoyment of their land because they say they find it difficult to grow plants and twice they have had to replace turf against the fence.
The Leahys filed photographs of the boundary line with the vegetation extending from Mr Daly’s property in the initiating application. The photographs were not helpful in showing the problems of encroaching branches; one suggested some minimal extension of branches over the fence line but there were clearly no branches extending out 3 m.
The parties were given opportunity to file evidence and submissions in the course of the proceeding and the Leahys took the opportunity to file additional photographs and a statement of evidence. These photographs show a couple of small roots extending under a colorbond fence but it is doubtful the fence is the adjoining fence to Mr Daly’s property. That common boundary fence is shown to be a timber fence in other photographs and referred to as a timber fence by Mr Daly.
There were also photographs of a cracked concrete pathway and a cracked brick retaining wall fronting a small garden. The Leahys suggest that damage has been caused by Mr Daly’s invasive tree roots. They say in the statement of evidence that they have replaced the retaining wall and repaired damage to the concrete path, but they offer no supporting evidence such as receipts for the cost of the work done. They claim the tree roots in the photographs come from Mr Daly’s property but as stated, that is doubtful given the only shown roots do not appear to originate from Mr Daly’s land.
Again none of the photographs relied on by the Leahys showed branches extending the claimed 3 m beyond their fence line.
The Leahys filed no evidence in support of their entirely vague and broad brush claim that Mr Daly’s trees are somehow a source of a termite problem they have.
Indeed the only relevant commentary in the statement of evidence relevant to a tree dispute was a complaint about leaf litter in their guttering and on their roof attributed to Mr Daly’s trees. In that regard they claim the leaf litter affects the use and enjoyment of their property.
Mr Daly supplied invoices from tree loppers/arborists engaged by him to trim back branches to the fence line dated 4 May 2016 and 2 December 2021 in the sum of $440 each. He also supplied a receipt for $800 for further work trimming back branches to the fence line from a tree lopper/arborist dated 19 May 2022 with the work description “trimming and clean-up of trees and shrubs”. Additionally he supplied a quotation given him after he sought to enquire about the cost of additional tree lopping services for the reduction and maintenance of vegetation along the boundary fence. That was dated 14 March 2022.
In accordance with the Tribunal’s standard directions and as requested by the Leahys in their application for a tree dispute, the Tribunal appointed a tree assessor to provide an arborist’s report.
The Arborist’s Report
The Tribunal appointed Mr Richards, an arborist, as the tree assessor. He attended the properties for an inspection on 14 April 2023. He has provided the Tribunal with a report.
He reported on the trees along the boundary between the properties. He identified four trees and one hedge as vegetation to be assessed.
The first tree was a mature white Cypress-Pine. It was positioned approximately 1.5 m from the dividing fence. He noted it was a very slow-growing tree and as such, branch and twig extension would be minor each year. He found some small lateral branches extending across the dividing fence but only by approximately .5 of a m at a height of 6 m. Overall he stated the tree was sound and in his view would not fail.
The second tree was a Fiddlewood tree. It was located within Mr Daly’s property approximately 3.5 m from the dividing fence. There were no branches reaching the boundary line. There were no defective component parts observed within the canopy and failure of the tree was considered unlikely.
Tree three was a Weeping Bottlebrush. It was located approximately 1.5 m from the dividing fence within Mr Daly’s property. Again no branches reached the boundary line. Tree failure was considered unlikely.
The fourth tree was a mature Riberry tree located approximately 2.5 m within Mr Daly’s property. Again there were no defective parts observed within the canopy and tree failure was considered unlikely.
The fifth tree was not a tree but a mature Mock Orange hedge. It was located wholly within Mr Daly’s property, approximately 1 m inside the dividing fence. The arborist observed:
The hedge has been maintained at a distance between 300 and 500 mm from the dividing fence with clear access the entire length. No parts of the hedge reach or cross the dividing fence.
The arborist also opined:
The subject trees provide a valuable amenity presence for both the respondent and the surrounding neighbourhood for both residents and native fauna.
The yard has been selectively planted with mostly native vegetation much of which is more than 50 years of age.
The northern border of vegetation provides much-needed shade for both the respondent’s dwelling and the understorey plantings beneath.
The area has been well maintained historically, as numerous pruning wounds of varying ages were visually evident across all trees within the property.
Aerial images dated from 2019 show the dividing fence between the applicant and respondent had been maintained at the standard evidenced upon inspection.
…
At current size, growth rate and a proximity to dividing fence of subject trees 1 – 4, no works are recommended.
Tree number 5 will continue to grow as it is a managed hedge. Size of the hedge should be maintained within the current footprint which will be a pruning interval of approximately 1 year.
Prior to the tree assessor attending, the tree assessor was provided with the material filed by the parties, including photographs. I note the tree assessor added in his report:
Photographic evidence provided by the applicants depicting overhanging branches and cracked retaining walls misrepresent the alleged circumstance.
The photos are of their neighbours property … and do not show any component of the rear yard or of the respondents vegetation and their supposed effect as maintained within their application.
The overhanging branches shown in the images are from the respondent’s trees, however their effect is on a completely separate adjoining property which does not form part of this NDR case.
I accept the observations and comments made by the tree assessor as an accurate assessment of the state of the vegetation along the fence line between the relevant properties of the parties. Given there was only one tree, the Cypress-Pine, with small branches extending over the boundary perhaps .5 m, and the tree, branches and twigs are very slow-growing, I conclude that state of affairs would reflect the current state of affairs as well.
I note amongst the material filed by the Leahys there was a draft application for a tree dispute in the name of another party (seemingly another neighbour of either Mr Daly or the Leahys or both of them) but it is not an application filed in the Tribunal and there has been no filing fee paid. Perhaps the photographs referred to by the tree assessor as photographs of a neighbour’s property are of this other property. In any case, it carries no weight in this matter.
Consideration
By s 46(a)(i) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’), as far as relevant, land is affected by a tree if branches from the tree overhang the land.
By s 66 of the Act the Tribunal may make various orders to resolve a tree dispute.
Section 65 provides that the Tribunal may make an order under s 66 if it is satisfied:
…
(c) to the extent the issue relates to the land being affected because branches from the tree overhang the land -
(i)the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary;
The tree assessor found only one tree, the Cypress-Pine, had branches extending over the fence line, and that by only a short distance, .5 m. This makes sense given Mr Daly had paid a tree lopper/assessor $440 to trim along the fence line only some 5 months prior to the Leahys filing their application in the Tribunal.
It is reasonable to assume therefore that when the Leahys filed their application in the tribunal that there were either no branches extending out over the fence line, or if there were, they did not extend out .5 m.
Strictly speaking, there is no requirement that branches actually do extend out over the boundary .5 m when a neighbour makes an application to the Tribunal about a tree dispute because of overhanging branches. Section 61 of the Act provides 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, the land is so affected by a tree.
In best light and being rather generous, the claims and assertions of the Leahys in this matter are exaggerated, whether intentional or otherwise. Their assertions are not supported by the evidence including the evidence from the independent tree assessor.
Generally I find Mr Daly to be a responsible tree keeper. Where his evidence conflicts with the Leahys, I prefer his evidence, supported as it is by both documentary evidence and the observations of the tree assessor.
Whilst I may make an order under s 66 of the Act when branches extend over the neighbour’s land in excess of .5 m, here I determine it is not appropriate to do that.
I have found Mr Daly to be a responsible tree keeper. He wishes to sell his property but has delayed that pending the decision of the Tribunal in this matter. It is not appropriate that he be saddled with orders to do what he has already been doing responsibly and voluntarily, taking proper care of and maintaining his trees and ensuring they do not affect the land of his neighbours. He can continue to do that without directions from the Tribunal in the form of orders which will be noted on his title to his land.
In all the circumstances the appropriate order is to dismiss the application for tree dispute.
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