Finch v Grahle [2017] QCAT 80

[8] The Tribunal appointed an arborist, Mr Anthony Cockram, as an assessor to prepare a report relating to the trees complained of by Mr Finch. Mr Cockram's report was provided to the Tribunal on 18 July 2016 ("the assessor's report").[19]

[9] The assessor's report identifies five (5) trees as being relevant to the dispute between the parties (collectively referred to as "the trees"):

1. A liquidamber (tree 1);

2. A second liquidamber (tree 1a);

3. A weeping fig (tree 2);

4. A flooded gum (tree 3); and

5. A tipuana (tree 4).

[10] The assessor's report identifies:

1. Tree 1a overhangs Mr Finch's roof and deposits leaf litter onto the roof of Mr Finch's dwelling and that the guttering "struggle(s) with the higher than average leaf litter drop onto the roof from trees 1a and tree 2";[20]

2. Tree 2 poses a future root hazard to both dwellings and underground services;[21]

3. Tree 3 has higher deadwood throughout the lower canopy as a result of it having a large percentage of canopy under tree 4;

4. Tree 4 has a large lateral limb extending by 5.7 metres over the dwelling and pergola on Mr Finch's land. The limb is structurally compromised by crossing/rubbing a branch from tree 3 and is deemed a risk hazard with high potential for failure during a storm event.[22] Removal of the branch is recommended;[23]

5. The combined effect of the trees is to create a higher than average debris drop onto the roof and gutters of the dwelling on Mr Finch's land.[24]

[11] The assessor's report attaches a number of photographs of the trees including a photograph of tree branches overhanging Mr Finch's land.[25] The photograph is described as:

Photo taken from Rhonda Street looking south towards Tree Keepers/applicants properties with the overhanging branches of trees #1a,#1-#4.

[12] The assessor's report identifies that trees 1, 1a and 2 overhang Mr Finch's land by between 2.6 metres and 8.5 metres.[26]

[13] I am satisfied that branches of each of the trees overhang Mr Finch's land. I am satisfied that, for the purposes of s 46 of the NDA, Mr Finch's land is affected by the trees.[27]

[14] An order about the trees can only be made if I am satisfied about the following matters:

1. Mr Finch's land is affected by a tree or trees;[28]

2. The issue cannot be resolved using the process under Chapter 3, Part 4 of the NDA;[29]

3. Mr Finch has made a reasonable effort to reach agreement about the dispute with Mr Grahle;[30]

4. Mr Finch has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;[31]

5. The branches overhang Mr Finch's property by at least 50 centimetres;[32]

6. Mr Finch has given Mr Grahle a copy of the application for a tree dispute;[33]

7. An order is appropriate:

   1. to prevent serious injury to any person; or
   2. to remedy, restrain or prevent:

      • (1) serious damage to Mr Finch's land or property on his land; or

      • (2) substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Finch's land.[34]

[15] I have found that Mr Finch's land is affected by the trees. The process under Chapter 3, Part 4 of the NDA applies where a branch is 2.5 metres or less above the ground and the branch extends over the neighbour's land by at least 50 centimetres. The process does not apply to the trees the subject of this dispute as the branches are more than 2.5 metres above the ground. I am satisfied that Mr Finch has made a reasonable effort to reach agreement with Mr Grahle. This is evidenced by the agreement between the parties to perform the tree works. There is no evidence before me of any relevant local law, or local government scheme or administrative process relevant to the resolution of the issues in dispute. I am satisfied that Mr Grahle has been given a copy of the application for a tree dispute by Mr Finch.

[16] I will now turn to the considerations under s 66 of the NDA and, where applicable, s 73 of the NDA.

[17] The assessor's report is the best, independent, evidence of the state of the trees and the actual or potential effect the trees have had, currently have, or may have, on Mr Finch's land.

[18] Tree 1 and tree 1a are in good health. The branches of the two trees overhang Mr Finch's land by 2.8 metres to 3.2 metres. The impact of the trees is identified in the assessor's report as:

1. A contribution to the debris drop onto the roof and gutters of the dwelling on Mr Finch's land; and

2. Some obstruction of sunlight to the roof of Mr Finch's dwelling however this is only during early morning hours.

[19] As I have noted, the Tribunal made directions for the parties to file submissions addressing the issue of who should pay for the tree works the subject of the agreement reached between the parties. Unfortunately neither submission addresses the substantive issues requiring consideration under s 66 or s 73 of the NDA.

[20] There is no evidence before the Tribunal as to the impact of trees 1 and 1a on the solar panels on the roof of Mr Finch's dwelling. Evidence in the form of a shade diagram or photographs of the shading to the roof is absent. Evidence of the impact of the shade cast by tree 1 and tree 1a on the solar panels is also absent. In the circumstances, I am not satisfied that there is any evidence sufficient to establish, on the balance of probabilities, that trees 1 and 1a cause a severe obstruction of sunlight to a window or roof of the dwelling on Mr Finch's land.

[21] Attached to Mr Finch's application for a tree dispute are a number of photographs including photographs of bags of what appears to be leaf litter and photographs of a section of PVC pipe containing what appears to be leaf litter. No explanation is provided as to where the leaf litter emanated from, where the leaf litter was collected from, or over what period of time it was collected.

[22] The assessor's report does not identify the extent of leaf debris deposited by tree 1 and tree 1a onto Mr Finch's land other than a general comment about the contribution of trees 1, 1a, 3 and 4 to the higher than average leaf litter drop and a comment that two rain water tank collectors struggled with the leaf litter drop. In his application, Mr Finch complains that despite maintaining his gutters, excessive leaf litter blocks the gutters.

[23] There is no evidence to suggest that the leaf litter poses a risk of serious injury to a person or serious damage to Mr Finch's land or property on his land. Whether the leaf litter interferes with the use and enjoyment of Mr Finch's land depends upon whether the interference is substantial, ongoing and unreasonable. The words substantial, ongoing and unreasonable carry their ordinary meaning: substantial means 'of considerable importance, size, or worth'; ongoing means 'continuing; still in progress'; unreasonable means 'beyond the limits of acceptability or fairness'. Interference, in order to satisfy s 66(2)(b)(ii) of the NDA, must therefore be considerable and beyond the limits of acceptability.

[24] Generally speaking, leaf litter will not, of itself, be sufficient to constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of land.[35] I am not satisfied, on the balance of probabilities, that the leaf litter deposited by tree 1 and tree 1a creates an interference that is substantial, ongoing and unreasonable. There is no evidence that tree 1 and tree 1a pose a risk of serious injury to any person or serious damage to Mr Finch's land or property on his land.

[25] The assessor's report identifies the impact of tree 2 as being a highly inappropriate planting for its location between two dwellings. The assessor's report notes that tree 2 poses a current and future root hazard to both dwellings and underground services.

[26] Unfortunately, the report does not address with any degree of specificity whether tree 2 has caused, is causing or is likely to cause within the next 12 months serious damage to Mr Finch's land or property on his land. Attached to Mr Finch's application are a series of photographs depicting tree roots exposed through excavation. Presumably these are roots located on Mr Finch's land. Roots can be seen around exposed pipes. There is no evidence as to from where the roots emanated nor is there any evidence as to what damage, if any, the roots have caused to Mr Finch's land or property on his land. Whilst the assessor's report identifies that tree 2 poses a current and future risk to dwellings and underground services, I am not persuaded that the evidence is such that I can conclude, on the balance of probabilities, that tree 2 has caused, is causing or is likely within the next 12 months to cause serious damage to Mr Finch's land or property on his land. Indeed, as Mr Finch himself acknowledges in his submissions:

Though there was a high presence of established roots emanating from our neighbours property as shown in previously submitted photos there were technicalities to prove 100% association with our blockages so we chose not to chase this up.[36]

[27] The impact of tree 3 on Mr Finch's land is noted in the assessor's report to be related to the presence of its crown beneath the crown of tree 4. This in turn creates a greater degree of deadwood in the canopy of tree 3 which in turn results in higher than average leaf litter drop onto the roof and gutters of Mr Finch's dwelling.

[28] For the reasons I have expressed, I am not satisfied on the balance of probabilities that the presence of leaf litter from tree 3 is sufficient to establish either a risk of serious injury or damage or a substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Finch's land.

[29] The assessor's report identifies a large lateral limb of tree 4 that has been structurally compromised by a crossing/rubbing branch from tree 3. The branch extends over the dwelling and pergola on Mr Finch's land by 5.7 metres. The assessor states that the limb is a risk hazard that should be removed. There is a photograph of the branch attached to the assessor's report.[37]

[30] I am satisfied that if the branch fails, given its size and location, it is likely that such failure will result in serious damage to Mr Finch's dwelling and/or pergola. I am satisfied that in the event of a cyclone or other extreme weather event, the likelihood of such failure is increased.[38] I am satisfied that removal of the branch is appropriate to prevent serious injury to a person on Mr Finch's land and/or to prevent serious damage to property on Mr Finch's land.

[31] I have found that an order pursuant to s 66 of the NDA can be made only in respect of tree 4 and is limited to the removal of the identified overhanging branch.

[32] Whilst the power of the Tribunal to make orders regarding a tree are broad, in the circumstances of the present matter, those powers are constrained by the wording of s 66(2) and s 66(5). The Tribunal may, pursuant to s 66(5)(e) make an order requiring a tree keeper or neighbour to pay the costs associated with carrying out an order under s 66 of the NDA. The power to make such an order is therefore confined to those circumstances in which the Tribunal makes orders it considers appropriate pursuant to s 66(2) of the NDA. The power to make orders pursuant to s 66(5) is, however, expressed clearly as placing no fetter upon the powers of the Tribunal to make an order under s 66(2).

[33] Mr Finch and Mr Grahle have reached agreement in relation to the tree works. There is no Tribunal order relating to the tree works. Accordingly there is no order pursuant to s 66 of the NDA which is the necessary precondition for making an order for costs under s 66(5)(e).

[34] As I have noted, the powers conferred by s 66(5) of the NDA do not limit the Tribunal's power to make orders pursuant to s 66(2). Section 66(2) is concerned with orders necessary to prevent serious injury; serious damage to land or property on land; or substantial, ongoing and unreasonable interference with the use and enjoyment of property. Whilst the parties have reached agreement about the tree works, they have not agreed how the cost of the works will be met. Accordingly, if no order about those costs is made, it is unlikely that the tree works will be carried out. If the tree works are not carried out, the risks I have found are posed by tree 4 will not be prevented or otherwise remedied.

[35] The objects of the NDA include facilitating the resolution of disputes about trees between neighbours.[39] It is not uncommon for neighbours involved in disputes before the Tribunal to reach agreement about tree work to be carried out however agreement cannot be reached about who will pay for the tree work. It would be an absurd result, and one not consistent with the objects of the NDA, if parties can reach an agreement about tree work but not the costs of the tree work and the Tribunal has no power to make an order about those costs. Such an outcome would not encourage the early resolution of disputes or indeed the resolution of disputes at all. Parties would simply proceed to a hearing and have the Tribunal resolve the entirety of the dispute.

[36] The orders the Tribunal may make about a tree pursuant to s 66(2) are broad and constrained only by the requirement that the orders are appropriate to address the mischief referred to at ss 66(2)(a) and 66(2)(b). In my view, s 66(2) must be given a construction consistent with the objects of the NDA. An order the Tribunal considers appropriate in relation to a tree affecting a neighbour's land pursuant to s 66(2) includes an order relating to the cost of work required to remedy, restrain or prevent the mischief identified at s 66(2)(a) and s 66(2)(b).

[37] I therefore conclude that an order about the cost of the tree work is necessary for the purposes of s 66(2) to prevent serious injury and/or serious damage to Mr Finch's land or property on his land.

[38] I have found that it is only in respect of tree 4 that the Tribunal would otherwise have the power to make an order pursuant to s 66. Any order for the cost of the tree works must, in my view, be limited to the cost of the work to tree 4 to remove the hazardous limb.

[39] Mr Finch and Mr Grahle have agreed that the tree work is in accordance with a quote dated 9 September 2016 from Treezy Pty Ltd. The quote is in two parts. Quote 1, for an amount of $2,300.00, identifies work to a number of trees including tree 4. The work to tree 4 is noted as:

Remove large limb from tipuana which has been compromised by limb from flooded gum back to collar.

[40] Quote 1 does not provide a breakdown of the proposed works. Quote 2, for an amount of $380.00, refers to:

Cut branch from tipuana over hanging roof vent pipe (back to 1 metre from roof line).

[41] It is unclear from the quote why it is in two parts, nor is it clear whether the work referred to in the quotes relating to tree 4 is the same work. Quote 1 refers to the removal of the branch from tree 4 back to the collar, while quote 2 refers to the removal of the branch back to 1 metre from the roof line. Clearly the majority of the work referred to in quote 1 relates to the removal of tree 2 and the removal and trimming of branches on trees 1, 1a and 3. Quote 2 also refers to work to a tree other than tree 4 and the description of the work to tree 4 is different to that in Quote 1. Doing the best I can with the material before me, and noting the cost of the work referred to in quote 2, I find that a reasonable allowance for the cost of the removal of the at risk branch of tree 4 is $350.00.

[42] As to who should pay the cost, a tree keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour's land.[40] A tree keeper is responsible for ensuring that the tree does not cause serious injury to a person or serious damage to a person's land or property on a person's land or substantial, ongoing and unreasonable interference with a person's use and enjoyment of the person's land. [41]

[43] I have found that an order in respect of the at risk branch of tree 4 is required to prevent risk of injury to a person or remedy, restrain or prevent serious damage to Mr Finch's land or property on his land. Mr Grahle should pay the cost of the tree works in respect of tree 4.

[44] Richard Grahle must pay to Desmond John Finch the amount of $350.00 in respect of the cost of the tree works to be carried out in accordance with the quote from Treezy Pty Ltd dated 9 September 2016, upon the completion of the tree works.

[2] NDA s 66(2)(a).

[3] Ibid s 66(2)(b)(i).

[4] Ibid s 66(2)(b)(ii).

[6] Ibid s 66(3)(b)(i).

[7] Ibid s 49(1)(a)(i).

[8] Ibid s 48(1)(a).

[9] Ibid s 66(5)(e).

[10] Ibid s 73.

[11] NDA s 59. Part 4 of the Act is concerned with the removal of overhanging branches by a neighbour exercising the right of abatement or where branches are 2.5 metres or less above the ground.

[12] Ibid s 61.

[13] Ibid s 46(a)(i).

[14] Ibid s 46(a)(ii)(A).

[15] Ibid s 46(a)(ii)(B).

[16] Ibid s 46(a)(ii)(C).

[17] Ibid s 46(b)(i).

[18] Ibid s 46(b)(ii).

[19] Report of Anthony Cockram ("the assessor's report") dated 18 July 2016.

[20] Report of Anthony Cockram ("the assessor's report") dated 18 July 2016 2.2.

[27] NDA s 46(a)(i).

[28] Ibid s 59(a).

[29] NDA s 59(b).

[30] Ibid s 65(a).

[31] Ibid s 65(b).

[32] Ibid s 65(c)(i).

[33] Ibid s 65(d).

[34] Ibid s 66(2).

[35] See Vecchio v Papavasiliou [2015] QCAT 70; Thomsen v White [2012] QCAT 381.

[36] Applicant's submissions dated 3 October 2016.

[37] The assessor's report dated 18 July 2016, photo #4.

[38] NDA s 73(1)(i).

[39] NDA s 3(b).

[40] NDA s 52(1).

[41] Ibid s 52(2).