Van der Riet v Collison

[2021] QCAT 238

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Van der Riet & Anor v Collison [2021] QCAT 238

PARTIES:

ROBERT LESUEUR VAN DER RIET

MARIELLE ODETTE APOLONIA VAN DER RIET

(applicants)

v

JACQUELINE ALICE COLLISON

(respondent)

APPLICATION NO/S:

NDR087-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

6 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application for a tree dispute filed on 10 June 2019 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees have been removed – whether neighbour’s land affected by trees

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102

REPRESENTATION:

Applicants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

1. The parties are the registered owners of neighbouring properties in the Sunshine Coast region.

2. On 10 June 2019, Mr and Mrs van der Riet lodged an application for a tree dispute with the Tribunal.  The application concerned two trees described as lillypillies located on Ms Collison’s side of the common boundary of the properties.

Relevant legislation

1. Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides:

   Land is affected by a tree at a particular time if—

   (a) any of the following applies—

   (i) branches from the tree overhang the land;

   (ii) the tree has caused, is causing, or is likely within the next 12 months to cause—

   (A) serious injury to a person on the land; or

   (B) serious damage to the land or any property on the land; or

   (C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

   (b) the land—

   (i) adjoins the land on which the tree is situated; or

   (ii) would adjoin the land on which the tree is situated if it were not separated by a road.

2. Section 66(2) of the Act relevantly provides that the Tribunal may make orders in the following circumstances:

   (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.

The evidence

1. The evidence before me is that the trees were removed by Steve Smith Tree Felling on 15 July 2020.  Ms Collison stated:

   I made the decision to remove the trees ensuring that there be no further need for unnecessary interaction with these litigious and inflexible neighbours …

   The respondent has also ensured all roots have been poisoned at the time of the trees being removed from within the boundary of [Ms Collison’s property].

2. Mr and Mrs van der Riet have sought orders that:

   (a)Ms Collison remove the roots on Mr and Mrs van der Riet’s side of the property and install appropriate root barriers to prevent their return; and

   (b)Ms Collison not be allowed to grow plants more than 2.5 metres in height and not cross the boundary at any time.

3. As noted above, s 66 limits the Tribunal’s powers to circumstances in which a tree is affecting a neighbour’s land.

4. Mr and Mrs van der Riet have provided photographs of roots on their property.  The photographs do not contain a scale, but compared to the timber paling also visible in the photograph the roots appear to be in the vicinity of one centimetre in diameter.

5. Mr and Mrs van der Riet have not provided any expert evidence (whether from an arborist or an engineer or other suitably qualified person) that the roots are likely to cause serious injury to a person or serious damage to their property.  In these circumstances, I am not satisfied that there is a risk of serious injury or damage.

6. Further, Mr and Mrs van der Riet have provided no evidence or explanation as to how the roots will otherwise cause substantial, ongoing and unreasonable interference with the use and enjoyment of their land. As best as I can determine based on the photographs provided by Mr and Mrs van der Riet, the remaining roots are likely to cause only minimal interference with their land. As noted above, the roots were poisoned at the time the trees were removed. In these circumstances, I am not satisfied that the roots are affecting Mr and Mrs van der Riet’s land for the purposes of s 46 of the Act.

7. The Tribunal does not have power under s 66 to make orders relating to what future trees might be planted on neighbouring property.

8. Accordingly, I will dismiss the application for a tree dispute.

Costs

1. Mr and Mrs van der Riet have sought a costs order in the amount of $2,701.34.

2. Section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Tribunal may make a costs order if the interests of justice require it.

3. Given that I have dismissed the application for a tree dispute, I do not consider that it is in the interests of justice to make a costs order in favour of Mr and Mrs van der Riet.  It appears to me that Mr and Mrs van der Riet had no basis for continuing their application once the trees were removed.