Subramanyam v Sinclair-Ford - [2024] QCAT 610

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Subramanyam & Anor v Sinclair-Ford [2024] QCAT 610

PARTIES:

RAJESH VELINENI SUBRAMANYAM

(applicant)

LAVANYA VADALMANI KODHANDIAH

(APPLICANT)

v

ANDREW DUNCAN SINCLAIR-FORD

(respondent)

ANGELA ELIZABETH SINCLAIR-FORD

(RESPONDENT)

APPLICATION NO/S:

NDR218-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 December 2024

HEARING DATE:

24 June 2024

HEARD AT:

On the Papers

DECISION OF:

Member Pearce

ORDERS:

1.     The tribunal orders the tree-keepers of Lot 7 RP 109391 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to remove all accessible deadwoods greater than 25mm in diameter and the reduction pruning of the northern overhanging canopy of the single Gum Tree located on the norther boundary of the tree-keepers’ property at 16 Marney Street, Chapel Hill Qld, 4069 as per an arborist’s recommendations, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken within two years of the first and then is to be undertaken on an ongoing basis every two years thereafter.

2.     At the time of undertaking such works the arborist engaged is to to monitor the future health and stability of this tree and provide advice to the tree-keepers regarding this.

3.     The tribunal orders all tree debris to be removed from the applicants' / tree-keepers' property after the recommended pruning is performed.

4.     The tribunal orders the tree-keepers to pay for all expenses associated with the carrying out of these orders.

5.     The tribunal authorises a person, including the applicants (or successor in title) or person appointed by the applicants (or successor in title) to enter the tree-keepers’ land to carry out these orders.

6.     If the applicants (or successor in title) intend to enter the tree-keepers’ property (Lot 7 RP 109391) to carry out these orders or engage consultants to do so, then the applicants (or successor in title) must first give 14 days’ written notice to that effect to the tree-keepers, at the tree-keepers’ last known address.

7.     If the applicants (or successor in title) undertake work that should have been done by the tree-keepers pursuant to the terms of this order, and incur costs in doing so, then the tribunal orders the tree-keepers to reimburse the applicants (or successor in title).

8.     If the tree-keepers reconfigure Lot 7 RP 109391 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration.

9.     These orders remain in force and effect for 10 years.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where dispute exists between neighbours regarding tree – where expert report sought regarding tree – whether order should be made for removal of tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48, s 49, s 52, s 59, s 60, s 61, s 62

Queensland Civil and Administrative Tribunal Act 2009 (Qld), 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

Background and jurisdiction

This case involves a tree dispute between neighbours in a residential area.
The applicants are the owners of the property at 60 Moordale Street, Chapel Hill. The respondents are the owners of a property at 16 Marney Street, Chapel Hill. The property description of the respondents’ property is Lot 7 RP109391. It is a freehold property.
Adopting the terminology used in the Neighbourhood Disputes (Dividing Fences and trees) Act 2011 (Qld) (‘the Act’), the respondents are the “tree-keepers”[1] and the applicants are the “neighbours”.[2]
[1]Neighborhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), s 49.
[2]The Act, s 49.
The term “tree-keeper” in the context of a dispute such as this is significant in that any order made against the tree-keeper is binding not only upon the tree-keeper at the time of the dispute, but the tree-keeper of the subject land burdened by the order for up to 10 years.
A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.[3] Based on the reasons outlined in this decision I find that the respondents have failed to fulfil their responsibilities as tree-keepers in this regard.
[3]Ibid, s 52(1).
The tree-keeper is responsible for ensuring that the tree does not cause -
(a)Serious injury to a person; or
(b)Serious damage to a person’s land or property on a person’s land or
(c)Substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.[4]
[4]Ibid.
Based on the reasons outlined in the decision I find the respondents had failed to fulfil their responsibility as tree-keepers regarding these matters.
The applicants say that their land is affected by trees on the respondents’ land. After hearing the evidence in this case, I accept that basic proposition is correct.
The respondents submitted that the applicants had not attempted to resolve matters. The respondents stated that they had been advised of the branches falling in 2021 but no other effort to resolve the dispute was made.
The respondents also outline that no damage or injury was caused by the falling of the branches but agreed the tree sheds foliage. The respondents submit that the applicants’ intention in bringing the application is to have the tree removed resulting in convenience regarding the falling foliage.
Whatever the reasons it is accepted that the dispute could not be resolved.
By accepting these matters, the jurisdiction under Part 5 of the Act to make orders to resolve the matters about trees is enlivened.[5]
[5]Ibid, s 59.
The statutory power conferred upon the tribunal to make orders is broad. 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, land is affected by the tree.[6]
[6]Ibid, s 61.
The tree-keeper and neighbour are encouraged to resolve the issue informally. However, if they cannot, or if they did and the tree-keeper fails to comply with the terms of the agreement, the neighbour may apply to the tribunal for resolution of the issue.[7]
[7]Ibid, s 60.
The neighbour may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to QCAT for an order under section 66.[8]
[8]Ibid, s 62.
The tribunal may make an order under section 66 if it is satisfied of the following matters[9] –
(a)the neighbour has made a reasonable effort to reach agreement with the tree-keeper;
(b)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(c)to the extent the issue relates to the land being affected because branches from the tree overhang the land—
(d)the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(e)the neighbour cannot properly resolve the issue using the process under part 4;
(f)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
[9]Ibid, s 65.
I am satisfied that the matters referred to in section 65 of the Act have occurred.
(a)The dispute is long-standing and the issue of the tree removal was first raised by the applicants who, in using the terminology of the Act, are the ‘neighbours’) with the tree-keepers in 2021.
(b)The council does not have a local law dealing with a tree dispute issue.
(c)There is one large tree that extends over the neighbours’ land at least 50cm from the common boundary with the property owned by the tree-keepers.
(d)The consent or other authorisation from a government authority is not needed to carry out work on the trees.[10]
(e)The only entity that the neighbours were required to provide with a copy of the application was the tree-keepers (the respondents).
[10]For example, such consent or authorization may be based on a local law, the NatureConservation Act1992 (Qld), or the Vegetation Management Act 1999 (Qld).
Accordingly, in my view the tribunal has jurisdiction to deal with the matter and make an order in this case.
The expert report
The tribunal received a report from expert arborist Michael Sowden who certified that he attended at the subject address on 26 August 2023. His report in the form of a QCAT tree assessment report was dated 27 August 2023. I accept the recommendations and information contained in the tree assessment report.
The report examined options to deal with the issues raised by the applicants including the overhanging canopy and the accumulation of debris within the applicants’ property. The report identified that these concerns could be resolved by significant pruning works.
Sections 71 and 72 of the NDR Act provide:
71 Safety
The primary consideration is the safety of any person.
72 Removal or destruction of a living tree to be avoided
A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.
Pruning to remove all accessible deadwoods greater then 25mm in diameter and the reduction of the northern overhanging canopy could be performed within Australian Standard 4373-2007 "Pruning of amenity trees" to the extent that in my opinion the issues raised by the applicants could be satisfactorily resolved.
The tree-keepers agreed in principle to the proposed recommendations.
The applicants were not present during my site assessment for comment.
The expert report specifically recommended the following actions:
(a)Pruning to remove all accessible deadwoods greater than 25mm in diameter and the reduction pruning of the northern overhanging canopy of the single Gum Tree (Eucalyptus sp.) located on the northern boundary of the tree-keeper's property at 16 Marney Street, Chapel Hill, Qld, 4069.
(b)Ongoing maintenance at intervals should not exceed three (3) to maintain the spread of the canopy at the extent of the initial pruning and to remove any deadwoods that have developed.
(c)Close monitoring over the next two (2) to four (4) years to monitor the future health and stability of this tree by a suitably qualified arborist.
(d)All tree debris to be removed from the applicants' / tree-keepers' property after the recommended pruning is performed.
(e)All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees".
(f)Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.
(g)All works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
(h)The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
Orders the tribunal can make
The tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour's land —
(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.[11]
[11]The Act, s 66.
Amongst other things, the tribunal may also make an order to compel a party do any of the following —
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on an occasion or on an ongoing basis;
(b)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; or
(c)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the neighbour's land.[12]
[12]Ibid, s 66(5).
Conclusion and Orders
The objects of the Act are:
(a)to provide rules about each neighbour's responsibility for dividing fences and for trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and
(b)to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.[13]
[13]Ibid, s 3.
I make orders in the following terms:
1.The tribunal orders the tree-keepers of Lot 7 RP 109391 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to remove all accessible deadwoods greater than 25mm in diameter and the reduction pruning of the northern overhanging canopy of the single Gum Tree located on the norther boundary of the tree-keepers’ property at 16 Marney Street, Chapel Hill Qld, 4069 as per an arborist’s recommendations, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken within two years of the first and then is to be undertaken on an ongoing basis every two years thereafter.
2.At the time of undertaking such works the arborist engaged is to to monitor the future health and stability of this tree and provide advice to the tree-keepers regarding this.
3.The tribunal orders all tree debris to be removed from the applicants' / tree-keepers' property after the recommended pruning is performed.
4.The tribunal orders the tree-keepers to pay for all expenses associated with the carrying out of these orders.
5.The tribunal authorises a person, including the applicants (or successor in title) or person appointed by the applicants (or successor in title) to enter the tree-keepers’ land to carry out these orders.
6.If the applicants (or successor in title) intend to enter the tree-keepers’ property (Lot 7 RP 109391) to carry out these orders or engage consultants to do so, then the applicants (or successor in title) must first give 14 days’ written notice to that effect to the tree-keepers, at the tree-keepers’ last known address.
7.If the applicants (or successor in title) undertake work that should have been done by the tree-keepers pursuant to the terms of this order, and incur costs in doing so, then the tribunal orders the tree-keepers to reimburse the applicants (or successor in title).
8.If the tree-keepers reconfigure Lot 7 RP 109391 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration.
9.These orders remain in force and effect for 10 years.