Marshall, Marshall and Simmons v Kelly and Kelly
[2024] QCAT 3
•5 January 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Marshall, Marshall and Simmons v Kelly and Kelly [2024] QCAT 3
PARTIES:
MAREE ELEANOR MARSHALL, THELMA ALICE MARSHALL AND STEPHEN TRUSCOTT SIMMONS (applicants)
v
ANTHONY RICHARD KELLY AND ANITA LOUISE KELLY (respondents)
APPLICATION NO/S:
NDR170-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
5 January 2024
HEARD AT:
Brisbane
DECISION OF:
Member Goodman
ORDERS:
1. The application for directions dated 23 October 2023 is dismissed.
2. The respondents are to prune and maintain the five trees bordering the property of the applicants as deemed appropriate pursuant to good arboriculture practice, and as approved by the relevant local council, provided that:
(a) The pruning addresses risks associated with the epicormic growth identified in the report of the independent tree assessor Mr Gunter dated 21 December 2021;
(b) Pruning is not to exceed 20% of the live canopy of the trees;
(c) Lower canopy growth should be maintained where privacy is required;
(d) Pruning should include the removal of any dead, diseased, or dangerous branches; and
(e) All works are to be carried out by a properly insured and suitably qualified arboricultural contractor with a minimum Diploma in Arboriculture, who must adhere to the guidelines set out in the Australian Standard for Pruning of Amenity Trees (AS4373-2007).
(f) The work is to be undertaken at the cost of the respondents.
(g) The work is to be completed within 3 months from the date hereof.
(h) If the work is not completed within 3 months, the applicants may arrange to have the work performed as above.
(i) Should the applicants be required to arrange the work (and/or the ongoing pruning stipulated below) in default of it being done by the respondents, the person(s) undertaking the work is/are entitled to enter the respondents’ land to carry out the work upon the applicant giving 14 days written notice of that intention to the respondents.
(j) The costs incurred by the applicants engaging a tree lopper and arborist to do the work in default of the respondents are recoverable from the respondents as a debt without further notice being required to be given.
(k) The respondents are to ensure that, at least every two years after initial pruning, a suitably qualified professional (as above) attends and prunes the branches of any trees on the respondents’ land which overhang the applicants’ land as above.
(l) The respondents and any tree lopper or arborist engaged by the respondents to perform the work or ongoing pruning are entitled to enter the applicants’ land for the purpose of assessing and performing work necessary to comply with this decision subject to seven days written notice being given to the applicants.
(m) These orders remain in force and effect for a period of 10 years from the date hereof.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES – DISPUTES BETWEEN NEIGHBOURS – where branches overhang neighbour’s property – where tree keeper directed to arrange for pruning
Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) s 46, s 61, s 66, s 71, s 72, s 73, s 75
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
The applicants and respondents are neighbours. The respondents have five trees on their property which are growing along the boundary between the two properties. Some of the branches overhang the respondents’ property.
The applicants lodged an application in this Tribunal on 20 October 2020 claiming that:
(a)All of the trees were overgrown and approximately 8 metres tall.
(b)Dead branches on one of the trees would cause serious injury if they fell on someone in the area below.
(c)If there was a major storm any of the five trees, if uprooted, would damage fences, gardens and possibly the side of the house.
(d)They cannot use the area of land the trees overhang due to the amount of debris they drop, including branches, which also affects the upper garden and vegetable gardens.
(e)The respondents had undertaken a “very minor prune” but had given the arborist strict instructions not to take too many branches from the applicants’ side to protect their privacy.
(f)They used their own chainsaw to take down some lower branches which resulted in an argument with the respondents. They then hired a chainsaw to reach the higher branches which led to a further argument.
(g)The trees have never been pruned at the top, and because they are so tall, privacy is reduced.
(h)The trees totally block rain to the lower garden.
(i)The trees were present when they bought their property.
(j)The trees do not contribute to:
(i) the local ecosystem or biodiversity,
(ii) the natural landscape or scenic value of the land or locality,
(iii) public amenity, or
(iv) the amenity of the land on which they are situated, due to their height.
(k)The trees might impact the storm water drain on the applicants’ property and could pose a risk in the event of a cyclone or other extreme weather event.
(l)The respondents had refused to enter into mediation to resolve the issue.
The applicants sought an order to remove or prune the trees because, they said, the overhanging branches were dangerous, and the overhanging branches and massive amount of debris dropped was preventing them from using the lower area of the garden, which they wished to build on.
The respondents lodged a response with the Tribunal on 19 February 2021 stating:
(a)They had refused mediation because of the history of unpleasantness between the parties.
(b)The trees had not caused any damage or injury in the 20 years they had been there.
(c)The applicants had not assisted in promoting privacy as they have no trees and minimal shrubs on their land.
(d)The neighbourhood is full of large trees and bushland, which is what attracted them to the area in the first place.
(e)The area which the applicants say is affected by the trees is a council drainage easement which gets very wet when it rains. The trees do not block rain to that area.
(f)Because of construction of a block wall in the applicants’ backyard, the upper area of the yard is almost the height of the fence between the properties, limiting privacy for the respondents.
(g)Privacy has been significantly impacted following the pruning of the lower parts of the trees by the applicants.
(h)They employ a qualified arborist to maintain the trees.
(i)The trees contribute to their privacy (less so following the lopping/pruning) and noise reduction. They are part of the landscaping and provide shade and attract birds to the garden. The trees have been allowed to grow tall because the main outdoor entertaining space on the applicants’ property is a balcony on the second level which overlooks their property.
On 5 October 2021, the applicants lodged an application for miscellaneous matters, seeking an order that the respondents pay the applicants’ costs in the amount of $973.36. The application for costs was dismissed on 18 January 2022.
On 23 October 2023 the applicants lodged an application for miscellaneous matters, apparently seeking directions. It is unclear what directions were sought. The application is dismissed.
THE LEGISLATION
The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld). Under that Act, the Tribunal has broad powers to hear and decide matters when a tree is affecting a neighbour’s land.[1] The Tribunal may make appropriate orders:
(a)to prevent serious injury 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.[2]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) s 61 (‘NDA’).
[2]NDA s 66(2).
I am satisfied that the parties are neighbours, and their lands are adjoined, and that the trees are “trees” as defined in the legislation.
The Tribunal may make orders if the applicants’ land is affected by a tree. There are limited circumstances in which their land may be affected by a tree – if:
(a)branches from the tree overhang the land; or
(b)the tree has caused, is causing, or is likely within the next 12 months to cause:
(i) serious injury to a person on the land; or
(ii) serious damage to the land or any property on the land; or
(iii) substantial, ongoing, and unreasonable interference with their use and enjoyment of the land.[3]
[3]NDA s 46.
I am satisfied that the applicants’ land is affected by the trees as branches from the trees overhang the boundary.
It seems that the applicants are alleging that the trees are causing substantial, ongoing, and unreasonable interference with their use and enjoyment of the land. In determining whether there has been unreasonable interference, the Tribunal may consider:[4]
(i) anything other than the tree that has contributed, or is contributing, to the interference; and
(ii) any steps taken by the parties to prevent or minimise the interference; and
(iii) the size of the applicants’ land; and
(iv) that the trees were planted before the applicants acquired the land.
[4]NDA s 75.
The primary consideration for the Tribunal in deciding an application is safety.[5] Other matters for the Tribunal’s consideration relevant to these circumstances are contained in the legislation,[6] and they have been addressed later in this decision.
[5]NDA s 71.
[6]NDA s 73.
A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[7]
[7]NDA s 72.
TREE ASSESSMENT REPORT
On 15 November 2021, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.
On 6 December 2021, Mr Gunter, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal. Relevantly, the report states:
(a)Four of the five trees are “Assessable Vegetation” under the local council planning scheme, and are therefore protected and cannot be removed or significantly pruned without council approval.
(b)Some of the overhanging branches extend in the applicants’ property by more than 0.5 metres. In some cases, branches extended up to 3.5 metres into the applicants’ property.
(c)Structural surface roots from one of the trees extend beneath the dividing fence and onto the stormwater easement on the applicants’ land. No damage was noted as a result of this encroachment.
(d)The trees provide shade and privacy to the respondents, and provide benefits in terms of overall garden design and landscape/aesthetic benefits.
(e)The trees are a mix of native and exotic species and their canopies provide roosting and potential nesting sites for small birds. Fruit and flowers may also provide fodder for local wildlife.
(f)The area of the applicants’ property affected by the trees is a three-metre-wide local council infrastructure easement and as such must be “well-maintained and kept clear of any permanent or temporary structures.” The area cannot, therefore, be utilised for garden beds/sheds etc. The applicant mentioned in the site assessment that they required pruning of the trees to allow use of this area for vegetable gardens.
(g)The trees were all wholly on the respondents’ property and all show relatively good condition and have been well maintained, with the only significant structural issues a result of branch lopping on the applicants’ side of the property dividing fence. The lopping has also impacted the natural canopy form of the subject trees and decreased the trees effectiveness as a privacy screen.
(h)No significant damage is noted or is likely as a result of the overhanging branches.
(i)Leaf litter was not considered excessive.
(j)In some instances where branches have been lopped, this work has resulted in a profusion of epicormic growth, a natural response to lopping, but the new growth can be poorly attached and prone to failure. The lopping has also resulted in changes in canopy morphology which may expose branches to wind impacts where this may not previously have been the case.
(k)Remedial and formative pruning is recommended in order to rectify these issues. Some branch reduction pruning may be required as part of these works in order to improve canopy morphology (thereby reducing overhang). Pruning should not exceed 20% of the live canopy of these trees. Lower canopy growth should be maintained where privacy is required. Remedial pruning will also include removal of any dead, diseased, or dangerous branches that may not have been identified in the report.
(l)Any works should be carried out by a suitably qualified arboricultural contractor with a minimum Diploma in Agriculture. Previous quality work on the trees (other than the lopping) indicates that the respondents’ current arborist may be retained to continue to manage these trees. Any works must adhere to the guidelines as set out in the Australian Standard for Pruning of Amenity Trees (AS 4373-2007).
On 29 December 2021, the applicants wrote to the Tribunal advising that pollen from the tree(s) adversely affects their lungs, and the arborist’s report had not taken into account the effect which flowers on the trees had on their health.
On 19 September 2022, the Tribunal received correspondence from the applicants stating that the arborist had based his report on an incorrect assumption that they would not be able to grow vegetables in the area under the trees.
On 1 November 2022, the Tribunal received correspondence from the applicants stating that:
(a)the timing of the arborist’s visit and report meant that there was less debris present than at other times of the year;
(b)The QCAT and council websites state that the trees and roots should be removed from their property;
(c)The easement area bordering the respondents’ land is to be used to plant vegetables/lawn;
(d)The respondents have not trimmed their trees for two and a half years, and the trees are dropping seed pods onto their property and shoots are “coming up everywhere.” Removing the shoots is a “nightmare”;
(e)Lack of pruning has allowed the trees to grow so tall that privacy has been reduced for both parties, and there is now a clear line of sight into the respondents’ property;
(f)The first applicant has a physical health condition which has been exacerbated by the stress of these proceedings, and which makes it difficult for her to clean up debris which is dropped on their gardens by the trees. The roots extending under the fence make it dangerous for her to walk in the lower garden area;
(g)Flowering from two of the trees causes a physical reaction for the applicants; and
(h)One of the trees now extends 4 metres over the boundary fence. The other trees are three metres over the fence and all trees drop leaves into their vegetable gardens.
On 28 November 2022, the Tribunal received correspondence from the respondents stating:
(a)The applicants purchased their property with the well established and mature trees in place;
(b)The applicants are obliged to keep the easement area free of any permanent or temporary structures that may impede the flow of water;
(c)The applicants caused damage to the trees when they lopped them;
(d)They are prepared to lop the trees in accordance with the tree assessors report but have been awaiting the outcome of the Tribunal’s proceedings before undertaking any work; and
(e)The applicants have provided false and misleading information to the Tribunal.
DECISION OF THE TRIBUNAL
I am satisfied that the applicants’ land is affected by the trees because branches are overhanging. While there are claims of a safety risk, there is no expert evidence to support that claim. There is insufficient evidence to support a finding that the trees have caused or are likely to cause serious injury to a person or serious damage to the land or property on the land.
The applicants appear to claim that the trees cause substantial, ongoing, and unreasonable interference with their use and enjoyment of their land, and they seek orders from the Tribunal to address that claimed interference.
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. The applicants claim that the tree assessor did not have a complete picture of the amount of matter which is dropped, as he visited the property in a season with little droppings and shortly after they had tidied the area up. I have been provided with a number of photographs, and the parties make various claims about the amount of plant matter that is dropped.
The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the applicants’ use and enjoyment of the land. Maintenance of the applicants’ property is their responsibility. It is accepted that the frequency of debris removal will vary in different seasons and over the long term. In the absence of any other expert evidence, I accept the opinion of the tree assessor that the leaf litter and other debris is not excessive. While the maintenance/cleaning is subjectively onerous, I am not satisfied that the interference is substantial or unreasonable.
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.
Addressing the considerations contained in the legislation,[8] I find that:
[8]NDA s 73.
(a)the trees are located close to the boundary;
(b)four of the trees are not able to be removed or significantly pruned without approval from the local council;
(c)there is no evidence that the trees are of any particular historical, cultural, social or scientific value;
(d)the trees provide roosting and potential nesting sites for small birds, and fodder for local wildlife;
(e)the trees contribute to the amenity of the respondents’ land by providing shade and privacy, and provide benefits in terms of overall garden design and landscape/aesthetic benefits;
(f)the trees contribute to public amenity as they are in a residential neighbourhood where trees abound, and which has been planned to feature established large trees as part of its landscape;
(g)there is no expert evidence regarding any impact the trees have on soil stability, the water table or other natural features of the land or locality;
(h)there is no expert evidence to raise concerns regarding risks associated with the trees in the event of a cyclone or other extreme weather event, although the tree assessor reports that the works undertaken by the applicants may have promoted epicormic growth which can be poorly attached and prone to failure. Further the work has resulted in changes in canopy morphology which may expose branches to wind impacts where this may not have previously been the case; and
(i)the trees are able to be safely pruned, provided the work is carried out by a suitably qualified professional.
The respondents, as tree keepers, are responsible for the trees growing on their land which are affecting the applicants’ land. There is no independent or expert evidence as to how much the branches may be pruned without affecting the integrity of the trees. On the evidence available, I find that the branches overhanging the applicants’ property should be pruned in accordance with the recommendations of the independent tree assessor.
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