Newton v Healey - [2023] QCAT 237

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Newton & Anor v Healey & Anor [2023] QCAT 237

PARTIES:

NOEL GEORGE NEWTON AND LORRAINE FLORENCE NEWTON

(applicants)

v

JANELLE MARIE HEALEY AND ROBERT KLEE

(respondents)

APPLICATION NO/S:

NDR011-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

9 June 2023

HEARING DATE:

14 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Davies

ORDERS:

The application is dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees growing on respondents’ land – trees reduced to stumps – cause of damage – issue of overland flow

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 41, s 45, s 46, s 48, s 61, s 65, s 66 s 73, s 74, s 75

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

This matter, instituted by way of an application filed on 15 January 2020, concerns two adjoining suburban properties at Victoria Point, a suburb within the Redland City Council local government area. Mr and Mrs Newton (the Applicants) own and occupy a freehold property at 38 Intrepid Drive. Ms Healey the female respondent owns and she and the male respondent, Mr Klee (the Respondents) occupy a freehold property at 6 Kurrewa Court Victoria Point. These properties adjoin. A common fence forms the back boundary of both properties.
The Applicants became the registered owners of their property in June 2016. Ms Healey became the registered owner of her Kurrewa Court property in October 2019.
In 2019, prior to Ms Healey’s acquisition of the Kurrewa Court property there was a QCAT proceeding concerning both properties (NDR122-19). The Applicants in this matter were also the Applicants in NDR122-19. The Respondent in NDR122-19 was the then registered owner of the Kurrewa Court property now registered in Ms Healey’s name.
As is common in neighbourhood disputes, there are strong feelings on both sides.
In summary, the Applicants’ position is that they have suffered damage to their property from tree roots emanating from trees that are or were on the Kurrewa Court property of the Respondents. It is appropriate to observe here that the dispute does not involve overhanging branches. The nature of the damage asserted by the Applicants is to a fence, a concrete pathway and drainage problems as a result of the obstruction of overland water flow.
The Respondents’ position is set out by Ms Healey in her March 2020 response to the Application. This response was supplemented by Mr Klee’s response of November 2021.[1] The Respondents’ position, in summary, is that the trees in question have been cut down. The Respondents assert that they were removed at the Applicants’ request as a result of the earlier proceeding (NDR122-19). Further, they say that the damage that the Applicants claim has not been exacerbated by tree roots but rather by actions undertaken by the Applicants. In particular, excavation and construction work undertaken in 2016 and 2017. In short it is asserted by the Respondents that the Applicants’ drainage problems are self-inflicted
[1]Mr Klee became a respondent by a Tribunal Direction dated 21 October 2021.

Orders sought

The Applicants are seeking orders to remedy, restrain and prevent continuing damage to their property together with the cost of the replacement of a concrete path. The Respondents seek orders from the Tribunal dismissing the application, the completion of certain drainage works by the Applicants, that the Applicants repair the boundary fence, install root barriers and pay for the trimming of trees along the boundary fence.
As will be seen from what is set out below, the orders that this Tribunal can make are those that are available under the governing statute and the making of any order is dependant the evidence before the Tribunal.

Tree disputes – statutory framework

The governing statute for disputes of this nature is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). The objects of the ND Act are set out in s 3.[2] Relevantly, the objects are to provide rules about each neighbour’s responsibility for trees with the aim of resolving issues about trees without a dispute arising. That object has not been achieved in this matter, so it is necessary to look to the second object of the ND Act which is to facilitate the resolution of disputes about trees that do arise.
[2]Unless otherwise indicated, all references to a specific section are to a section in the ND Act.
Chapter 3 of the ND Act deals with trees. That Chapter starts, in s 41, with the basic proposition that a tree-keeper[3] is responsible for the proper care and maintenance of the tree-keeper’s tree. It is appropriate to observe that a tree is defined, in s 45 to include a woody perennial plant or, indeed, any plant resembling a tree in form and size. The definition goes onto provide that a tree is defined to include a stump that is rooted in the land.
[3]The term ‘tree-keeper’ is defined in s 48. In this matter Ms Healey as the registered owner of her property under the Land Title Act 1994 (Qld) is, for present purposes, the tree-keeper.
The ND Act, in s 46, provides that land is affected by a tree if the tree has caused is causing, or is likely within the next 12 months, to cause serious damage to the land or any property on the land substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land and which adjoins the land on which the tree is situated.
QCAT is invested with 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, land is affected by the tree.[4]
[4]ND Act, s 61.
For present purposes s 65 (requirements before order may be made) and s 66 (orders QCAT may make) are of particular importance. Finally, Division 4 (ss 70 – 75) address matters for consideration by this Tribunal. These sections and their application to this matter are addressed further below.

Issues for determination

Against this statutory background, the principal issues for determination in this matter, phrased in the form of questions, are as follows:
(a)Have the requirements for an order to be made been satisfied?
(b)If so, what are the relevant matters that need to be considered in determining this dispute?
(c)In all the circumstances, what are the appropriate orders?

Evidence

By a direction by the Tribunal made on 11 September 2020 an arborist was appointed to assess and carry out an inspection and provide a report to the Tribunal on the issues raised in this Application. The report so prepared (by Mr Benjamin Inman), is dated 8 October 2020.[5] Mr Inman also gave oral evidence on the first day of the hearing in this matter. In giving his evidence Mr Inman was examined by the representatives of both parties.
[5]Exhibit 1.
In addition to the report and evidence of Mr Inman, witness statements admitted into evidence consisted of statements by the following:
(a)Mr Noel Newton[6]
(b)Ms Janelle Healey[7] and
(c)Mr Robert Klee.[8]
[6]Exhibit 2.
[7]Exhibit 3.
[8]Exhibit 4.
These three witnesses, all of whom were parties to the proceeding, also gave oral evidence. That is, they were examined on their statements.
Against this background it is appropriate to consider the evidence before the Tribunal in the context of the issues identified above.

Have the requirements for an order to be made been satisfied?

The requirements before an order can be made are set out in s 65. Relevantly for this matter, the principal questions are:
(a)whether the Applicants have made a reasonable effort to reach agreement with the Respondents as the ‘tree-keeper’[9] and
(b)whether the Applicants have taken reasonable steps to resolve the issue in dispute between the parties under any relevant local law, local government scheme or local government administrative process.
[9]A term defined in s 48. In this matter, the Respondents are the tree-keepers.
In the application, the Applicants have asserted that attempts have been made to resolve the dispute by writing to Ms Healey, who was initially the sole respondent. The Applicants assert that Ms Healey ‘did not want to discuss issues.’[10] It is apparent from the material prepared by or on behalf of Ms Healey[11] that at or about the date that the application in this matter was filed in January 2020, the Applicants approached the Dispute Resolution Centre – Southern Queensland in an attempt to mediate the dispute. By a letter dated 5 February 2020, under the hand of the Civil Mediation Team, Ms Healey is recorded as advising that she did not wish to participate in mediation with the Applicants.
[10]Application Part B Item 5.
[11]Exhibit 3, Attachment 7.
Given the context in which this matter comes before the Tribunal, I consider that the requirement for a ‘reasonable effort’ by the Applicants to reach agreement with the tree-keeper has been satisfied. It is also apparent that the Respondents have received a copy of the application.
As to the situation of the local government, the Redland City Council, the application to QCAT states that the Applicants contacted the Council, and they were advised that an issue regarding overland flow of water should be referred to QCAT.
For the purposes of determining this matter, I accept that the Applicants did approach the Council and were given the advice set out in the previous paragraph. I consider that this satisfies the requirement for taking reasonable steps to resolve the issue through processes under local laws etc. In saying this I am not endorsing the accuracy of the advice that the Applicants say they received from the Redland City Council.

What are the relevant matters that need to be considered in determining this dispute?

This question needs to be considered in the context of the evidence presented. The matters for this Tribunal to consider are set out in Chapter 3 Part 5, Division 4 of the ND Act (ss 70-75). The general matters to consider are set out in s 73. Other matters to consider if, as is the case here, serious damage or unreasonable interference is alleged,[12] are set out in s 74 and s 75.
[12]In paragraph 1 of their written submissions the Applicants allege ‘serious damage to a dividing fence and a concrete pathway… has occurred causing substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land.’
Integral to addressing the matters to consider is the identification of the tree or trees in question. The Applicants state in their application[13] that the trees in question are African Tulip, Jacaranda and Rain Tree.
[13]Part D Item 35
The Respondents assert that these trees were removed by the after the institution of the earlier proceeding.[14]
[14]Page 6 of the Respondents’ written submissions.
Mr Inman, the independent arborist, agrees with the Respondents. He states in his report dated 8 October 2020, that: ‘The trees that were alleged to be causing any tree root issues to the concrete area and fence have been removed and no longer exist.’[15] Indeed, Mr Inman, in the absence of these trees at the time of his inspection concentrates, in his visual tree assessment, on a number of Mock Orange trees on the Respondents’ land.
[15]Exhibit 1, page 10.
The final position of the Applicants, as expressed in their written submissions is that there is still one healthy African Tulip tree on the Respondents’ property near the dividing fence[16] and there has been some regrowth of the trees set out in the application.[17]
[16]Paragraph 10 on page 3 of the Applicants’ written submissions.
[17]Paragraph 25 on page 7 of the Applicants’ written submissions.
Mr Inman’s attendance on site was in October 2020. I accept that he accurately sets out the situation as he found it at the time of his inspection. However, the photographic evidence of the Applicants is that there was some regrowth from the stumps of the trees the subject of the application after Mr Inman’s visit.[18]
[18]See the photos in Attachment R to Exhibit 2, the statement of Mr Newton. These photographs were taken in February and April 2021.
On the basis of this evidence I conclude that the trees the subject of the application have been removed. Which I take to mean reduced to stumps but accept that there was, in the first half of 2021, some regrowth from those stumps.
This is relevant because the meaning of ‘tree’ in s 45 includes a ‘stump rooted in the land.’ Further, s 46 provides that land is affected by a tree if the tree has caused or is likely, in the next 12 months, to cause serious damage to the land or any property on the land or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land and the land adjoins the land on which the tree is situated.
In their application and written submissions, the Applicants contend that the trees have caused and are causing them serious damage and unreasonable interference.
What are the relevant matters to consider under ss 73, 74 and 75 and what is the evidence in relation to these matters?
Having regard to the matters set out in ss 73, 74 and 75 in the light of the evidence and given that the trees are now stumps and the root systems that pertain to these stumps, then I consider that the matters for consideration here, phrased in the form of questions, are as follows:
(a)What is the location of the trees in relation to the boundary of the land on which the trees are situated and any premises, fence or other structure affected by the location of the tree?[19]
(b)Has anything, other than the trees the subject of the application, contributed, or is contributing, to the claimed damage including any act or omission by the Applicants?[20]
(c)What, if any, steps have been taken by the either the Applicants or the Respondents to prevent, minimise or rectify the damage and interference or the likelihood of damage and interference?[21]
(d)Is there anything other than the trees that has contributed, or is contributing, to the alleged interference?[22]
[19]ND Act s 73(1)(a).
[20]ND Act s 74(1)(a).
[21]ND Act s 74(1)(b) and s 75and interference.
[22]ND Act s75(a).
Regarding the steps taken by the Applicants or the Respondents, as to minimise or rectify the damage or interference or the likelihood of damage or interference, as is set out in paragraphs [25] - [27] above, the trees the subject of the application have been reduce to stumps and accompanying root structures.
As to the location of the trees the application sets out a diagram of the location of the trees adjacent to the common boundary fence. It does not seem in contest that the trees are in this location. Nor is it in contest that the structures that the Applicants assert are being damaged are situated on their land and adjacent to the boundary fence.
The serious damage and interference claimed by the Applicants, as set out in their evidence and summarised in their submission, is serious damage to the dividing fence and concrete pathway and, further, the restriction of overland flow of surface stormwater.[23] The Applicants say that these are causing substantial, ongoing and unreasonable interference with the use and enjoyment of their land.[24]
[23]Applicants’ written submissions at paragraphs 1, 2 and 3.
[24]Ibid at paragraph 1.
Mr Inman, in his report, sets out what he describes as ‘Checks against matters for consideration ss 70-75.’[25] In summary, Mr Inman is of the view that the trees prior to being reduced to stumps may have assisted in soaking up additional water flows from the Applicants property and considers that the Applicant’s stormwater system may not be adequate to cope with the overland flow. Mr Inman also comes to the conclusion that the damage to the Applicants’ concrete was not attributable to the trees. Indeed, he goes as far to suggest that the Applicants are trying to reclaim costs for something that was already broken prior to purchase.[26] In summary, Mr Inman suggests that the Applicants may be the authors of the drainage problem of which they complain.
[25]Exhibit 1 at section 2.3.
[26]Ibid at section 3 – headed ‘Discussion.’
For their part the Respondents also contend that the Applicants are responsible for the damage and interference about which they complain. For example, on page one of their written submissions the Respondents say that the Applicants ‘landscaping, ground levelling, excavation and construction works during 2016/2017’ are the factors that caused the Applicants’ problems.
The Applicants strongly dispute the positions adopted by the Respondents and Mr Inman.

Discussion

As to the damage to the boundary fence, I do not consider that, on the evidence presented, that this amounts to serious damage. The photos in Mr Inman 's report, in particular, at appendices 5, 6, 7, 23, 28, 31 and 33 do not show a fence is in pristine condition. However, I do not consider that the damage, as evidenced by Mr Inman’s photos, presents as falling within the ambit of serious damage caused by the trees in question, nor the overland flow of stormwater.
As to the concrete cracking, it is apparent from the photos that accompanied Mr Inman’s report that there is cracking of the Applicants’ concrete path.[27] Further, I consider that this cracking is serious damage and is such that it would cause substantial, ongoing and unreasonable interference with the Applicants use of their land.
[27]Ibid at appendices 49, 50 and 56.
What is not so clear, is whether this damage and interference is as a result of the trees in question. Mr Inman in his report[28] is equivocal. He concludes ‘While tree roots may have contributed to the failure of this concrete area, so may have the heavily stored materials that are located on top of it.”
[28]Ibid at section 2.2.
Although these findings are strongly disputed by the Applicants, the difficulty for the Applicants is that there is, in my view, insufficient evidence from them to tie the cracking in the concrete to the now removed trees. In this regard, a building inspection report commissioned by the Applicants[29] and based on an inspection that took place on 19 May 2016, the Applicants’ building inspector noted that cracking ‘was detected to sections of concrete pathways and/or driveway.’ This property inspection report went on to say ‘this is a common issue with a large percentage of homes and can be caused by many differing factors including poor ground preparation, inadequate steel reinforcing etc.’
[29]Exhibit 3, attachment P.
In the absence of cogent evidence linking the concrete cracking to the now removed trees, I am unable to conclude that the trees have caused or are causing serious damage or substantial ongoing and unreasonable interference to the Applicants’ land.
As to the issue of the ponding of storm water and the inhibition of the overland flow, the orders that this tribunal may make are ‘in relation to a tree affecting the neighbours land.’[30] As noted above, the trees in question have been removed and are limited to stumps and accompanying root systems and perhaps some regrowth. On the evidence before the Tribunal, I do not consider there is a sufficient link between the impaired overland flow of storm water and the now removed trees the subject of the application.
[30]ND Act s 66(2).

Conclusion

As a result of what is set out above, I consider that the Application should be dismissed. The Respondents seek a number of orders in addition to dismissal of the application. Those further orders sought are either misconceived in that they are not in relation to a tree affecting the Applicants’ land or they fail to demonstrate a proper understanding of Ms Healey’s obligation as a tree-keeper. As a result, the only order made is the dismissal of the application.

.