ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABITAT PROTECTION -
Source
Original judgment source is linked above.
Catchwords
ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABITAT PROTECTION -
Judgment (8 paragraphs)
[1]
The Applicant was self-represented by the Chair of the Body Corporate
[2]
[1] This matter is an application for a tree dispute which involved the applicant's commercial property at 11 Bartlett Road, Noosaville, which borders four neighbouring properties along its southern boundary with the respondent tree-keeper's property sharing less than a third of the overall width of the applicant's property. The 13 Gum trees subject to this application are all growing along the southern alignment of the applicant's commercial property which has industrial buildings on site.
[2] An application for a tree dispute was filed in QCAT on 23 January 2023. The applicant filed the application under the Neighbourhood Disputes (Dividing Fences and Trees) Act (Qld) ('the DF&T Act') relating to trees growing adjacent to the boundary line of the two properties but within the boundary of the respondents' property. It sought that the Tribunal make orders that the respondents carry out work on the trees to remove or prune branches of the trees and that the respondent apply for consent or other authorisation from a government authority in relation to the trees. It asked that the respondents pay the costs for carrying out these orders. In the applicant's application they provided an attachment outlining the reasons why they consider the orders sought should be made.
2011
[3] An Arborist report was required by an order of this Tribunal on 23 January 2024. An order of 8 November 2023 required the applicant to pay $1,000 to the Tribunal towards the cost of that report. An Arborist report was produced and made certain recommendations for pruning of the trees and their canopies. The work it recommended be done was then done to the satisfaction of the applicant.
[4] The report did identify that there was work and maintenance, which ought to occur and which obviously had not previously been acknowledged as required by the respondents. However, it is common ground that upon receipt of that report they carried out the necessary works.
[5] Hence the principal application ultimately resolved, because of the work done subsequent to the production of the Arborist report. The respondents spent in excess of $8,000 having work carried out to the trees which were the subject of the application and in particular, the removal of ten trees, three of the largest ones, one which was damaged and one struck by lightning. Although there is limited information about the extent to which any of the canopies were reduced, no further orders were sought from this tribunal by the applicant in respect of the canopies.
[6] The respondents made clear on the record at the hearing before me that they acknowledged that they had a responsibility to engage in ongoing maintenance of the canopy, and they undertook to meet those responsibilities. They have had and still do have an arborist they use for that purpose and who has already been there some three times and who they would continue to engage with to meet their responsibilities.
[7] The only order then sought by the applicant at the hearing before me was that it be paid $2,400 by way of reimbursement to it of the cost it incurred in pruning some of these trees prior to the filing of the Application. Essentially, these were costs, which it incurred as a form of abatement in removing overhanging branches, which crossed into its property, or by way of preventing damage to its own property. It also sought an order that required the respondents pay $1,000 to it for the cost of the Arborist report.
[8] The applicant could point to no statutory authority or any decision of this or any tribunal by which any identified jurisdiction to make such orders had been recognised.
[9] There can be brought in this Tribunal claims that are subject to a dispute under chapter 2 (dividing fences) of the DF&T Act, but for which this Tribunal may not order more than the prescribed amount ($25,000) (see paragraph 1(e) of definitions of 'minor civil dispute' and 'prescribed amount' in schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)). That provides that "QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following (s 35(1)): the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence caused by another adjoining owner" (s 35(1)(i)).
[10] Although the applicant filed an Application for a Tree Dispute at QCAT (Form 51) under the DF&T Act there was no application making a claim for compensation payable to an adjoining owner for damage or destruction to a dividing fence 'to recover a debt or liquidated demand of money up to the prescribed amount'. This is not such an application.
[11] QCAT 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 a tree' (s 61 DF&T Act). That part grants QCAT jurisdiction to 'make the order it considers appropriate in relation to a tree affecting the neighbour's land... to remedy... serious damage to the neighbour's land or any property on the neighbour's land' (s 66(2)(b)(i)) and 'without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following - (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' (s 66(5) DF&T Act).
[12] Relevantly to this claim is that 'A tree-keeper is responsible for the proper care and maintenance of the tree-keepers' trees' (s 41(1) of the DF&T Act) and under s '52(2) "A tree-keeper is responsible for ensuring that the tree does not cause -
[3]
(a) serious injury to a person; or
(b) serious damage to a person's land or any 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'
(3) This section does not create a civil cause of action based on a breach of a tree-keeper's responsibilities.
[4]
[13] Section 52(2) of the DF&T Act makes clear that the duty it establishes does not create a civil cause of action based on a breach of a tree-keeper's responsibilities. Hence pre-application costs it incurred by a neighbour allegedly because of a breach of a tree-keeper's responsibilities does not create a civil cause of action. This is not an application under s 66(5) of the DF&T Act that the tree-keepers pay compensation to the neighbour for damage to the neighbour's land or property on the neighbour's land.
[14] In my view an application under this statutory regime does not enliven the jurisdiction to make an order to reimburse a party for such costs and nor did the application in the first place seek an order to that effect. It sought an order the respondents pay the costs for carrying out the orders made by the Tribunal in relation to pruning or removal of the trees. No such orders have been made.
[15] There is power to order, as part of the costs incurred in respect of this proceeding, costs incurred in providing a report to the Tribunal which it has directed be provided. In this case, the Tribunal did order that such a report be provided and did also order specifically that the cost of it be paid for by the applicant. That occurred in circumstances in which the member who made that order asked whether the respondents share the cost of obtaining that report and when they declined, the applicant volunteered to pay for it, although as it now contends, it had no real choice.
[17] In Ascot v Nursing & Midwifery Board of Australia[2010] QCAT 364, Kingham DCJ, the Deputy President, held that:
[5]
The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
[6]
[18] The relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, including those in the review jurisdiction of the Tribunal, but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another. This is not like some other cases in this jurisdiction where the respondents have acted in a way that unnecessarily disadvantaged the other party to the proceeding by advancing a fallacious and frankly untenable case or leaving it to the hearing to announce their position or offer to do any of the maintenance which it had been sought that they do.
[19] In Kendall and Anor v Melenewycz and Anor[2024] QCAT 598 I was prepared to make an order that the respondents pay the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist because the tree keeper only offered to do the things which were referred to in the report as recommendations at the hearing and they did not in fact do those things and did not put in any open correspondence or in a submission that they were prepared to offer or agree to abide by that outcome. I held in that case as follows:
[7]
[56] The applicants also sought to be reimbursed for the cost to them of the Arborist report of $500. As I mentioned elsewhere, the respondents gave an undertaking that they would do the matters set out in clause 4.8 of the Arborist report which is to the effect of the orders which I made here. It was common ground that there was an earlier oral concession made to the tribunal by the respondents on 31 January this year that they were prepared to do the things which were referred to in clause 4.8 of that report as recommendations. They did not in fact do those things and did not put in any open correspondence or in a submission that they were prepared to offer or agree to abide by that outcome and the concession was only made during the course of the hearing when I invited comment from the respondents' representative about the Arborist's recommendations.
[57] In my view it is appropriate that the respondents be ordered to pay the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist. I do not consider it appropriate to order that the respondents pay the filing fee having regard to the usual position in this tribunal that parties meet their own costs.
[8]
[20] Those facts are quite different to those here, where the work was done long ago based on what the Arborist recommended.
[21] I refuse the application that for an order that the applicant be paid $2,400 in reimbursement to it of the cost it incurred in pruning some of these trees prior to the filing of the Application. In the exercise of my discretion, I decline to order that the cost of the Arborist report paid to the Tribunal be paid for by the respondents.
Parties
Applicant/Plaintiff:
Body Corporate for 11 Bartlett Road, Noosaville
Respondent/Defendant:
Fancourt [2025] QCAT 381
Legislation Cited (2)
Disputes (Dividing Fences and Trees) Act 2011
Civil and Administrative Tribunal Act 2009
Cases Cited (2)
Ascot v Nursing & Midwifery Board of Australia[2010] QCAT 364