Zulch v Hogerheyde - [2024] QCAT 611

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zulch v Hogerheyde [2024] QCAT 611

PARTIES:

BREVIN BERNHARD ZULCH

(applicant)

NADINE VANESSA ZULCH

(APPLICANT)

v

CELESTINA HOGERHEYDE

(respondent)

CHRISTOPHER HOGERHEYDE

(RESPONDENT)

APPLICATION NO/S:

NDR019-23

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 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches) as required. Undertake an aerial assessment of the defect located at the codominant union in the crown of the tree. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the tree to be retained. Pruning to be taken to collar points with branches 50mm diameter or less of the single Gum Tree located on the tree-keepers’ property at 86 Cane Street, Redland Bay. With the first instance of the maintenance work to be undertaken within 28 days.

2.     The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches as required). Pruning must be to collar points and the overall structure and symmetry of the tree to be retained within one year of Order 1.

3.     The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified within one year of Order 2.

4.     The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches) as required. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the trees to be retained. Pruning to be taken to collar points with branches 50mm diameter or less.

5.     The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified within one year of Order 4.

6.     The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Review the existing five year plan and if suitable continue same over the following five years.

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

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

9.     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.

10.     If the applicants (or successor in title) intend to enter the tree-keepers’ property (Lot 185 RP30541) 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.

11.     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).

12.     If the tree-keepers reconfigure Lot 185 RP30541 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration.

13.     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 86 Cane Street, Redland Bay. The respondents are the owners of a property at 87 Dart Street, Redland Bay. The property description of the respondents’ property is Lot 185 RP30541. 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]Neighbourhood 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 tie of the dispute, but the tree-keeper of the subject land burdened by the order for upon 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 have 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. The applicants state the tree drops bark and branches. This has caused damage to sheds and pergolas. It has also pierced a pool cover. The applicants submit they are worried about physical injury to a pet or child. The debris from the tree causes thorn-like matter to be in the backyard reducing the usability of the back yard. After examining 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 received no request for maintenance.
The respondents also outline that they believe the tree is a native of cultural significance and the tree does not overhang the applicants’ property. The respondents submit that the buildings, sheds and pools surrounding the property were erected with knowledge of the tree’s existence. The respondents provided that previous maintenance works had been carried out on the tree.
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 2022.
(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 Nature ConservationAct1992 (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 Mick Maher who certified that he attended at the subject address on 15 June 2023. His report in the form of an Arboricultural Comments report was dated 30 June 2023. I accept the recommendations and information contained in the 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 a five year maintenance program.
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.
The subject tree is a large Blackbutt tree. The report confirmed the canopy extends over the applicants’ property. The report describes the base of the tree being surrounded by weeds, long grass, stockpiles of metal, tin and generic private assets. There was no evidence of historical pruning works. Abundant expired leaves, twigs, fruit and buds and small branches were noted on the ground in neighbouring properties.
The expert report specifically recommended the following actions:
(a)Year 1: Crown clean (removal of deadwood and any unattached branches) as required. Undertake an aerial assessment of the defect located at the codominant union in the crown of the tree. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the tree to be retained. Pruning to be taken to collar points with branches 50mm diameter or less.
(b)Year 2: Crown clean (removal of deadwood and any unattached branches as required). Pruning must be to collar points and the overall structure and symmetry of the tree to be retained.
(c)Year 3: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified.
(d)Year 4: Crown clean (removal of deadwood and any unattached branches) as required. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the tree to be retained. Pruning to be taken to collar points with branches 50mm diameter or less.
(e)Year 5: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified.
(f)All tree debris to be removed from the applicants' / tree-keepers' property after the recommended pruning is performed.
(g)All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees".
(h)Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.
(i)All works shall be performed by a minimum Australian Qualifications Framework (AQF) level five (5) qualified arborist.
(j)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-keeper of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches) as required. Undertake an aerial assessment of the defect located at the codominant union in the crown of the tree. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the tree to be retained. Pruning to be taken to collar points with branches 50mm diameter or less of the single Gum Tree located on the tree-keepers’ property at 86 Cane Street, Redland Bay. With the first instance of the maintenance work to be undertaken within 28 days.
2.The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches as required). Pruning must be to collar points and the overall structure and symmetry of the tree to be retained within one year of Order 1.
3.The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified within one year of Order 2.
4.The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Crown clean (removal of deadwood and any unattached branches) as required. Undertake select directions pruning / canopy lifting over neighbouring residential properties as required. Pruning must be to collar points and overall structure and symmetry of all the trees to be retained. Pruning to be taken to collar points with branches 50mm diameter or less.
5.The tribunal orders the tree-keepers of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Visual tree inspection by an (AQF) level five (5) qualified arborist and remedial pruning as specified within one year of Order 4.
6.The tribunal orders the tree-keeper of Lot 185 RP30541 to engage a suitably qualified arborist (minimum level 5), with appropriate insurance coverage, to undertake the following: Review the existing five year plan and if suitable continue same over the following five years.
7.The Tribunal orders all tree debris to be removed from the applicants' / tree-keepers' property after the recommended pruning is performed.
8.The tribunal orders the tree-keepers to pay for all expenses associated with the carrying out of these orders.
9.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.
10.If the applicants (or successor in title) intend to enter the tree-keepers’ property (Lot 185 RP30541) 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.
11.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).
12.If the tree-keepers reconfigure Lot 185 RP30541 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration.
13.These orders remain in force and effect for 10 years.