Fletcher v Mitchell [2025] QCAT 133

Fletcher v Mitchell [2025] QCAT 133 | Case summary | Zoe

[5]

[31] Neither party called Mr Sinclair to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his report. There is no evidence before the Tribunal that Mr Sinclair is professionally qualified to provide an opinion about how the two Hoop Pine trees behave or are likely to behave, or to make recommendations about how to address that behaviour. I prefer the evidence of the arborist, Mr Roberts, and therefore reject Mr Sinclair's conclusion that the debris is excessive and his recommendation that the trees be removed.
[32] I consider that Mr Sinclair's observations and photographs support Mr Roberts's observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
[33] There is no conclusive evidence before the Tribunal that the gutter guard damage as shown in the photographs was caused by fallen branches from the Hoop Pine trees. I consider that even if the damage was so caused, the damage in my observation is minor.
[34] Mr Sinclair states in the report that the debris could cause rusting of the barge roll and solar panels, fire danger under the solar panels, and guttering system blockages, however, there is no evidence before the Tribunal of any of these things having occurred.
[35] The Applicant has produced an electrical report by Mr Mark Olds of ElectroSafe dated 11 November 2024, referred to as a solar assessment conducted due to organic debris near the panels. The report notes that the space between the underside of the panels and the roof sheeting is heavily laden with debris from neighbouring trees shortly after cleaning, posing an increased fire risk in the event of a panel fault and may also accelerate corrosion to roof and panel mounting fixtures. The report recommends that the build-up be removed and a maintenance routine be implemented at quarterly intervals to reduce build-up, which may require the lifting of panels by a licensed person. The report also notes that debris on the panels will significantly impact production if not cleared away regularly. The positioning of the panels is designed to reduce the impact of shading; however, minimal shading in the early morning especially during the summer months is unavoidable.
[36] Neither party called Mr Olds to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his report.
[37] I consider that Mr Olds's observations and photographs support Mr Roberts's observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
[38] I consider that Mr Olds's recommendation that a regular maintenance routine be implemented for the removal of debris from in and around the solar panels supports Mr Roberts's observation that, while it may be a nuisance to the Applicant, that sort of clean-up activity is what would normally be expected to deal with debris from Hoop Pine trees.
[39] I consider that Mr Olds's observations about the impact of shading, while not entirely clear, indicate that shading from the Hoop Pine trees is not an issue impacting the performance of the solar panels.
[40] The Applicant produced an email from "aaron@topnotchroofingqld.com.au" dated 25 October 2024 advising that he had attended the Applicant's house to check for any damage to the roof. He states that he had to clean the roof to inspect it as there was a lot of litter from the tree. He states that he didn't see any damage to the roof just mould build-up and black grit from so much leaf litter, but he did notice it is wrecking the gutter guard from the weight on top of it, the debris is getting inside the gutter, and the gable rolls were full of debris, which will start causing leaks. He states that the applicant would need to clean the roof quite frequently.
[41] Neither party called Aaron to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his email.
[42] I consider that Aaron's observations support Mr Roberts's observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
[43] I consider that Aaron's observation that the roof would need to be cleaned quite frequently supports Mr Roberts's observation that, while it may be a nuisance to the Applicant, that sort of clean up activity is what would normally be expected to deal with debris from Hoop Pine trees.
[44] I consider that Aaron's observation of mould build-up, black grit and gutter guard damage from debris does not raise a suggestion of any serious damage to the Applicant's property.

[6]

[45] I am satisfied there is credible evidence before the Tribunal to find that there is a risk that branches, deadwood and/or cones from one or both of the Hoop Pine trees may cause serious injury to any person such as to warrant preventative measures. In making this finding, I have relied on Mr Roberts's evidence as set out in these reasons and note his comments about the unpredictability of the behaviour of the trees in extreme weather events such as high-category cyclones. I consider that this finding is consistent with my obligation to give primary consideration to the safety of any person and the Respondent's obligation as tree-keeper to ensure that the trees do not cause serious injury to a person.
[46] I am satisfied that the recommendations made by Mr Roberts insofar as they relate to the two Hoop Pine trees are appropriate preventative measures, and that the trees should not be removed or destroyed.
[47] I am satisfied there is no credible evidence before the Tribunal to find that the roots of one or both of the Hoop Pine trees are causing or may cause serious injury to any person.
[48] I am satisfied there is no credible evidence before the Tribunal to find that branches, deadwood, cones and/or leaf and seed drop and resultant accumulated debris from one or both of the Hoop Pine trees are causing or may cause serious damage to the Applicant's land or home.
[49] I am satisfied there is no credible evidence before the Tribunal to find that branches, deadwood, cones and/or leaf and seed drop and resultant accumulated debris from one or both of the Hoop Pine trees are causing or may cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant's land, including severe obstruction of sunlight to the Applicant's windows or roof.
[50] The Tribunal has previously determined that the presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of the land.[12] Mr Roberts's evidence is clear that the quantity of accumulated debris is what would normally be expected from trees of the Hoop Pine species. I consider the Applicant had ample notice of this issue having purchased 98 Cypress in 2019, two years prior to building on the land, and they proceeded to build on the land in full knowledge of how the two Hoop Pine trees behave.
[51] Maintenance of the Applicant's property is their responsibility. I consider that while it may be a nuisance or inconvenient for the Applicant to have to undertake regular clean-up activities to deal with the accumulated debris on their land, guttering, roof and under their solar panels, it is reasonable that they be expected to do so to discharge their responsibilities as a landowner having full and prior knowledge of how the two Hoop Pine trees behave. I reject the Applicant's claims for compensation for repairs of damage to their roof gutters and sheeting and solar panels, for regular cleaning of their roof and solar panels, and for removal of debris.
[52] I am satisfied there is credible evidence before the Tribunal to find that there is a risk that the aggressive root system of the Liquidamber tree may cause serious structural damage or plumbing functional damage to the Applicant's property if the current maintenance protocol is not maintained such as to warrant the continuation of that preventative measure. In making this finding, I have relied on Mr Roberts's evidence as set out in these reasons. I consider that this finding is consistent with the Respondent's obligation as tree-keeper to ensure that the tree does not cause serious damage to the Applicant's land or any property on their land.
[53] I am satisfied that the recommendations made by Mr Roberts insofar as they relate to the Liquidambar tree are appropriate ongoing preventative measures, and that the tree should not be removed or destroyed.
[54] I am satisfied there is no basis in the interests of justice on which to make a costs order in either party's favour. Both parties are self-represented, and I consider they each bear equivalent responsibility for this matter coming before the Tribunal.

[8]

The Respondent must undertake, on an annual basis, branch reduction of the two Hoop Pine trees to a height of 6 metres from the ground in relation to those branches overhanging the Applicant's land such that the branches do not extend more than 2 metres into the Applicant's land. 2. The Respondent must undertake, on an annual basis, removal of all deadwood and loose branches hanging in the branches and/or canopy of the two Hoop Pine trees to a height of 6 metres from the ground in relation to those branches and/or part of the canopy overhanging the Applicant's land. 3. The Respondent must undertake, on an annual basis, denutting of the two Hoop Pine trees in relation to those areas of the trees that overhang the Applicant's land. 4. The Respondent must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the work associated with Orders 1, 2 and 3. 5. The Respondent must ensure that the initial work associated with Orders 1 and 2 is undertaken by no later than 31 May 2025. 6. The Respondent must ensure that the initial work associated with Order 3 is undertaken by no later than 31 October 2025. 7. The Respondent must undertake, on an annual basis, maintenance of the Liquidambar tree such that it does not exceed 5 metres in height and 3 metres in spread. 8. The Respondent must ensure that the initial work associated with Order 7 is undertaken no later than 31 May 2025, if the work has not already been undertaken in 2025. 9. The Applicant must allow the Respondent's elected arborist and/or contractor with appropriate insurances, and where necessary, the Respondent, access to 98 Cypress to undertake the work associated with Orders 1 to 8 subject to 3 days' notice as agreed between the parties. 10. The Respondent will be responsible for all costs associated with Orders 1 to 8. 11. If the Respondent fails to undertake any of the work associated with Orders 1 to 8 ('Incomplete Work'), the Applicant shall be entitled to undertake any of the Incomplete Work in accordance with these orders. Where necessary to comply with these orders, the Applicant's elected arborist and/or contractor with appropriate insurances shall be entitled to enter the Respondent's land and undertake any of the Incomplete Work subject to the Applicant giving 14 days' notice in writing of that intention to the Respondent. 12. If the Respondent undertakes all of the outstanding Incomplete Work prior to the expiration of the 14 days' written notice as outlined in Order 11, the Applicant's entitlement to enter the Respondent's land, with or without their elected arborist and/or contractor, is extinguished. 13. The costs incurred by the Applicant to undertake any of the Incomplete Work in accordance with these orders in default of the Respondent shall be recoverable from the Respondent as a debt without further notice being required to be given. 14. Pursuant to s 78(1) of the Act, it is expressly provided that these orders shall not lapse 10 years after the day on which these orders were made but shall remain in force until revoked by the Tribunal. 15. In accordance with Part 6 of the Act, details of these orders will be entered in the register of orders maintained as a public record by the Tribunal. 16. These orders finally determine the Application and all of the following related applications:

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