The Body Corporate for Jemo Court CTS 15643 v Hudson
[2023] QCAT 517
•21 December 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
The Body Corporate for Jemo Court CTS 15643 v Hudson [2023] QCAT 517
PARTIES:
THE BODY CORPORATE FOR JEMO COURT CTS 15643 (applicant)
v
CHRISTINE HUDSON (respondent)
APPLICATION NO/S:
NDR045-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
21 December 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member King-Scott
ORDERS:
The Tribunal orders:
1. That the Body Corporate for Jemo Court CTS 15643 be at liberty to appoint and engage a suitably qualified AQF Level 3 arborist to:
(a) prune back limbs off the large trees and smaller trees behind the fence line on the common boundary of the properties owned by both parties;
(b) supervise Hydro-vac excavation of soil along the tree-keeper's side of the fence line to expose roots of trees, correctly prune roots and lay geotextile fabric against newly pruned roots to form a root curtain and to keep damp with an occasional watering
(c) Supervise and/or install a root barrier at a depth of 450-600mm along the length of the boundary fence line (approximate distance of 12m) and backfill with clean garden soil.
(d) Supervise the removal and replacement of the fence to the extent necessary to facilitate the work the subject of the aforementioned orders.
(e) To inspect and monitor tree health and vitality on a quarterly basis for a period of 12 months after completion of the work.
(f) Carry out regular pruning of the trees as determined by the Body Corporate for Jemo Court CTS 15643.
2. Christine Hudson will allow an arborist or any other person acting under the direction of the arborist or under the direction of the Body Corporate for Jemo Court CTS 15643 to enter Christine Hudson’s property for a reasonable time for the purpose of undertaking the pruning and other works described in the aforementioned orders.
3. The Body Corporate for Jemo Court CTS 15643 will give Christine Hudson at least 14 days’ notice in writing of the arborist’s intention to attend and carryout the initial pruning and subsequent maintenance pruning.
4. All costs associate with the aforementioned orders to be borne by the Body Corporate for Jemo Court CTS 15643.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Where land affected by a tree situated on boundary of adjoining land – where lot owners filed application for a tree dispute – where ‘tree-keeper’ owns adjoining property – Where removal of tree branch appropriate to prevent unreasonable interference with the use and enjoyment –where fence and patio tiles have been damaged by tree roots
Queensland Civil and Administrative Act 2009 (Qld)
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Background
Ms Christine Hudson is the tree keeper as defined in the Neighbourhood Disputes (Dividing Defences and Trees) Act 2011 (Qld) (“the Act”). She owns her home which is Lot 16 Group Title Plan 1504 of Allamanda Court at 145 Government Road Labrador. The Applicant in these proceedings, and her neighbour at 153 Government Road Labrador, is the Body Corporate for Jemo Court CTS 15643 (Jemo Court). It shares a common north south boundary with Allamanda Court.
The complaint
Jemo Court’s initial complaint about the trees was made to the Body Corporate for Allamanda Court CTS21166 on 14 March 2019. No response was received
The Jemo Court’s body corporate manager forwarded a letter of demand dated 26 January 2021 to the Body Corporate for Allamanda Court CTS21166. It stated, in part:
We are instructed that there are currently five trees located within Allamanda Court which adjoins our client's property. Since about December 2018 two trees located on Allamanda Court's land have caused significant damage to property owned by Jemo Court, namely the dividing fence and pavers which are being lifted by the roots, causing a trip hazard. The trees also drop a large number of leaves which continue to block the gutters located at Jemo Court.
The Poinciana tree located on your land has a root system which is protruding under the fence and pushing through to the paved patio area, the limbs also extend out over the patio and house roof. There is also a Variegated Weeping Fig whose limbs reach out over the patio roof and the tree roots are visibly lifting the pavers located in Lot 5 of Jemo Court. We consider that the offending trees are the responsibility of Allamanda Court as they are located within your property.
The Applicant demanded that Allamanda Court:
(a)engage a suitably qualified arborist to prune the tree limbs and the smaller trees away from the fence line;
(b)engage a suitably qualified contractor to excavate the soil along Allamanda Court's side of the fence to expose the roots of the trees and engage a suitably qualified arborist to prune the roots and lay a geotextile fabric to form a root curtain;
(c)engage a suitably qualified contractor to install a root barrier along the length of the fence line at a depth of 450mm to 600mm;
(d)engage a suitably qualified arborist to monitor the ongoing tree health and vitality on a regular basis;
(e)engage a suitably qualified arborist to prune the trees at suitably spaced intervals; and
(f)engage a suitably qualified contractor to repair the damaged caused, namely to the dividing fence and pavers.
The letter was accompanied by photographs that showed the extent of damage and impact the tree was having on the Applicant’s property.
The Applicant has provided an arborist’s report from Modern Tree Consultants. The author of that report Timothy Beck, identified the offending trees as:
Botanical name Common Name Height DBH* Notes Syzygium sp. Lilly Pilly 8 200 Tree is of good health and vigour Buckinghamia
celcissima
Ivory Curl 7 150 Tree is of good health and vigour Melaleuca
quinquenervia
Broad-leaved paperbark 10 600 Large mature tree with Large canopy and lateral limbs Delonix regia Poinciana 7 400 Elongated lateral limbs extend out over Patio roof and above house roof, large
buttressed root system Visible surface roots extend under fence
Ficus benjamina
Variegata
Variegated weeping fig 5 150 Limbs reach out over patio roof, co dominant stems, previously lopped. Roots
visible under fence lifting pavers
Hibiscus sp. Hibiscus N/A N/A Shrub * Diameter at breast height
The arborist’s conclusions following an inspection were as follows:
(a)Trees assessed appear in good health and are mature specimens
(b)Trees have not received corrective pruning for what appears a long while (years)
(c)Root systems from the large trees such as the melaleuca ficus and Poinciana have compromised the timber boundary fence causing it to lean.
(d)These root systems have moved out under the pavers for moisture and food and grounding, this has caused lifting and ground movement in the courtyard
(e)Limbs overhanging the Patio are causing excess shade and are filling the gutters with leaf litter and creating dampness and mould problems from the lack of sunlight penetrating into the yard.
The arborist’s recommendations were:
(a)Engage a suitably qualified AQF Level 3 arborist to prune back limbs off large trees and smaller trees back behind fence line.
(b)Engage a suitably qualified AQF level 5 arborist to supervise Hydro-vac excavation of soil along the tree owner's side of the fence line to expose roots of trees, correctly prune roots and lay geotextile fabric against newly pruned roots to form a root curtain, keep damp with an occasional watering
(c)Install a root barrier at a depth of 450-600mm along the length of the boundary fence line (approximate distance of 12m) and backfill with clean garden soil.
(d)The fence may need to be removed for this work to take place on the fence line.
(e)A periodic site visit by consulting arborist to monitor ongoing tree health and vitality after the completion of work at quarterly inspections for a period of 12 months.
On 23 March 2022 the Tribunal ordered that the application be served on Ms Hudson.
Ms Hudson filed a Response to the application on 18 May 2022 in the response she agreed with the complaints but as a pensioner stated that she did not have the money to rectify the problems.
Building Services and Maintenance quoted $9,420.00 as the cost to carrying out the work as at 10 March 2023.
Legislation
Part 6 of the Act applies if the parties cannot resolve issues relating to the tree.
The relevant provisions of the Act are as follows:
61QCAT 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.
62(1) The neighbour may apply, as provided under the QCAT Act[1], to QCAT for an order under section 66.
[1]Queensland Civil and Administrative Act 2009 (Qld)
(2)However, if the land affected by the tree is a lot recorded in the freehold land register and the neighbour is an occupier but not a registered owner of the land, the neighbour may apply only if a registered owner of the land has refused to make the application.
66(1) …
(2)QCAT 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.
(5)Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;
Examples—
•an order that requires the removal of the tree within 28 days
•an order that requires particular maintenance work on the tree during a particular season every year
•an order that requires particular work to maintain the tree at a particular height, width or shape
(b)require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
(c)require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
(d)authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
(e)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
(f)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
(g) require a report by an appropriately qualified arborist.
72A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
Under s. 62 only a neighbour can apply to this Tribunal. I am satisfied QCAT has jurisdiction to hear the matter and that the Applicants have standing.
Sections 74 and 75 of the Act outlines the specific matters the Tribunal may take into consideration when making an order under s. 66 to carry out work but also provides for “any other matter the Tribunal may consider relevant”. That wide discretion includes, in my opinion, the respective financial circumstances of the parties.
Resolution
Ms Hudson in an email dated 28 March 2023 says she is a 70 year old retiree on a pension of $1,026.50 per fortnight, her other income is rent from a flat mate of $210.00 per week from which she meets her mortgage costs.
She advises that she considers only one tree, the Poinciana is causing problems with its root system. She says that she has researched the cost of removing the tree which she found to be approximately $4,000.00. She does not believe a root barrier would be safe as she considers the tree could fall down. She has requested that the Application be dismissed as she is financially unable to pay for the work and would be heartbroken to lose her “loved’ trees.
In a subsequent email dated 24 May 2023 Ms Hudson states that she has observed that the owners have removed all lifting tiles from the small patio area and replaced it with a concrete pad. She has observed that they have extended the concrete to create a path along the back and side of the house replacing the existing lawn. They have also trimmed back the trees and had the gutters cleaned.
Though that may be the case, Jemo Court’s actions of self-help has not resolved the future problems with root penetration which may now affect the concrete pads and fences.
Under s.52 of the Act the tree-keeper, Ms Hudson, is responsible for ensuring the trees do not cause serious injury to a person or serious damage to a person’s land or property or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of a person’s land.
I am satisfied that there is a potential of serious damage being caused by the trees to the concrete pads that, it would appear, have now replaced the tiles. Ms Hudson acknowledges that the Poinciana is a potential problem. There is also the ongoing problem of leaf litter which is an ongoing and unreasonable interference with Jemo Court’s use and enjoyment of its land.
It appears that the most appropriate manner to resolve the dispute is to have the trees treated in line with the recommendations of Modern Tree Consultants.
I have no evidence of the financial circumstances of Jemo Court, however, it would not be unreasonable for me to infer that its financial circumstances would be significantly superior to that of Ms Hudson. In those circumstances, I order that the Applicant bear the costs of undertaking the work. In those circumstances it is only fair that it be responsible for appointing and engaging an arborist and that it has the conduct of the undertaking.
I make the following orders:
(a)That the Body Corporate for Jemo Court CTS 15643 be at liberty to appoint and engage a suitably qualified AQF Level 3 arborist to:
(i) prune back limbs off the large trees and smaller trees behind the fence line on the common boundary of the properties owned by both parties;
(ii) supervise Hydro-vac excavation of soil along the tree-keeper's side of the fence line to expose roots of trees, correctly prune roots and lay geotextile fabric against newly pruned roots to form a root curtain and to keep damp with an occasional watering
(iii) Supervise and/or install a root barrier at a depth of 450-600mm along the length of the boundary fence line (approximate distance of 12m) and backfill with clean garden soil.
(iv) Supervise the removal and replacement of the fence to the extent necessary to facilitate the work the subject of the aforementioned orders.
(v) To inspect and monitor tree health and vitality on a quarterly basis for a period of 12 months after completion of the work.
(b)Carry out regular pruning of the trees as determined by the Body Corporate for Jemo Court CTS 15643.
(c)Christine Hudson will allow an arborist or any other person acting under the direction of the arborist or under the direction of the Body Corporate for Jemo Court CTS 15643 to enter Christine Hudson’s property for a reasonable time for the purpose of undertaking the pruning and other works described in the aforementioned orders.
(d)The Body Corporate for Jemo Court CTS 15643 will give Christine Hudson at least 14 days’ notice in writing of the arborist’s intention to attend and carryout the initial pruning and subsequent maintenance pruning.
(e)All costs associate with the aforementioned orders to be borne by the Body Corporate for Jemo Court CTS 15643.
As the work is to be carried out for its benefit and cost of the Body Corporate for Jemo Court CTS 15643, I have not put a time limit on when the work should be commenced or completed.
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