Hewitt v Brisbane City Council [2018] QCAT 282

Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214

Edmonds v Yeates [2013] QCAT 7

Graham & Ors v Welch [2012] QCA 282

McDonald v Henry [2013] QCAT 87

McHugh v Withers [2017] QCAT 346

Thomsen v White [2012] QCAT 381

Wallace v Keg [2012] QCAT 466

Brisbane City Council: WR Manners, Principal Officer Natural Environment for the Brisbane City Council

[1] Dennis and Lorraine Hewitt claim that their neighbour's two silky oak trees should be removed because:

• (a) The trees present a safety concern because of their susceptibility to breakage in high winds, cyclones, lightning strike and possible decay;

• (b) The trees could cause structural damage to their pool; and

• (c) Debris from the trees drop into their pool and block their pool cleaner.

[2] The trees are protected by the Brisbane City Council's Natural Assets Local Law 2003 under protection category 'Significant Urban Vegetation' and meet the objects of that law by contributing to the landscape character of the city and providing a prominent landscape feature in the local area.[1]

[3] The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.

[4] As a precondition to the Tribunal's jurisdiction, Mr and Mrs Hewitt endeavoured to resolve the matter, before applying to the Tribunal.[2]

Are the trees likely to cause within the next 12 months serious injury or damage to Mr and Mrs Hewitt's land or property on their land?[3]

[5] Mr and Mrs Hewitt claimed the tree roots are close to their sewer lines and would extend under their concrete pool and noted cracking on the pool surrounds. They also claimed the trees presented a falling risk to residents of the property where the trees are kept and an allergy risk to people who come into contact with the leaves and flowers.

[6] The primary concern is the safety of any person.[4] However, Mr and Mrs Hewitt presented no independent expert evidence of the risks posed by the specific trees that are the subject of the application.

[7] Mr and Mrs Hewitt did provide a document entitled 'NSW DPI primefacts' sheet dated November 2006 that gave the silky oak species a toxicity rating of one star, meaning mildly toxic. It also states that poisonings are rare as the species is seldom swallowed.

[8] I do not accept this document as evidence of a likelihood of the specific trees in the application causing injury. On its face the document is over ten years old and does not relate to the specific trees in the application. Even if the document were admitted into evidence, it rates the toxicity as mild. That is not sufficient to meet the threshold of 'serious injury'.

[9] Similarly, Mr and Mrs Hewitt provided generic guides on structural cracking,[5] but nothing on the specific trees in the application and their specific situation. Mr Hewitt himself conceded he had no evidence of the trees causing cracking to the pool:

There is structural damage to my pool but it is inconclusive so far to determine exactly that it was the silky oaks.[6]

[10] Mr and Mrs Hewitt also provided generic documents from regional councils[7] about keeping trees from sewer lines but oddly, nothing from the Brisbane City Council, who is the local council responsible for the catchment area in which these specific trees are located. Indeed, the Brisbane City Council stated there was no evidence to demonstrate that the trees are currently impacting or likely to impact any structures or other infrastructure.[8]

[11] No evidence was adduced of whether or how the specific trees in the application has caused or contributed to the alleged cracks near the pool,[9] or whether their roots are likely to grow towards the sewer lines and damage them. No evidence was adduced of the material of which the sewer lines are constructed and whether they are susceptible to damage by the roots.

[12] Without expert evidence of causation or the likelihood of damage to the specific structures within particular timeframes, I am unable to find that the trees are likely to cause serious damage to the pool, its surrounds or sewer lines within 12 months.[10]

[13] Mr and Mrs Hewitt also claimed that the trees could cause personal injury or damage in the event of a cyclone or other extreme weather event. Conversely, the owners of the neighbouring property provided an expert arborist report that relevantly stated:[11]

• (a) Both trees are of good health and acceptable form;

• (b) No signs of structural detriment;

• (c) The trees are in acceptable health and structural condition for retention;

• (d) There is a low risk of falling branches from the trees within the striking distance (target zone), causing injury to a person or damage to property;

• (e) Branch failure events are not likely to perpetuate within the given risk analysis timeframe; and

• (f) No risk mitigation control measures are necessary within the time threshold of two years due to the low risk value rating, which includes any pruning maintenance or duties to tree health or structure.

[14] Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of 'likely' is probably or reasonably to be believed or expected. The arborist report is that the risk is low.[12] That is not sufficient to meet the threshold of 'likely'.[13]

[15] Section 73 of the Act establishes general matters that I must also consider, including the location of the trees in relation to the boundary and any premises, fence or other structure affected by the location of the trees.[14] The matters prescribed by section 73 do not suggest that each matter must be given equal weight, but balanced.[15]

[16] Neither tree is closer than two metres from the dividing fence.[16] Each canopy overhangs the boundary by less than 0.5 metres and will grow up to 0.5 metres biennially.[17] This moderate overhang together with the trees' good health does not suggest a likelihood of serious injury or damage within the next 12 months.[18]

[17] No independent expert evidence was adduced of whether the location of the trees in relation to the sewer lines would present a risk of serious damage within the next 12 months.

[18] Mr and Mrs Hewitt also claim that the leaves and flowers have caused damage to the pool pump. To support their claim, they provided a statement from their pool equipment specialist that their pump was completely overwhelmed by the leaves and flowers,[19] together with an $817.00 invoice for a replacement pump.[20] Because a claim for this amount would normally fall within the minor civil disputes jurisdiction of the Tribunal, I do not consider it sufficient to be 'serious damage'. Rather, it is the result of the 'natural incidence of a suburban landscape that includes trees'.[21]

[19] During the hearing, Mr Hewitt conceded that a pool cover would prevent damage to the pump. This means that Mr and Mrs Hewitt have not taken steps to prevent or minimise the damage.

[20] Upon considering all these matters, I am not satisfied that Mr and Mrs Hewitt have established that the trees are likely to cause serious injury or damage to their land or property on their land within the next 12 months.

Are the trees causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with Mr and Mrs Hewitt's use and enjoyment of their land?[22]

[21] Mr and Mrs Hewitt also claim that the trees seriously affect their use and enjoyment of their land for about four months each year, due to foliage blocking drains, pool filtration and the house guttering.[23]

[22] The Tribunal has previously considered this issue in a number of decisions.[24] The Tribunal's approach follows that of the Court of Appeal:

This tribunal has determined that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree. That approach is consistent with a recent decision of the Court of Appeal in Graham & Ors v Welch.[25]

[23] Section 75 of the Act prescribes other matters that the Tribunal may consider, including whether the trees existed before the neighbour acquired the land,[26] and steps taken by the tree-keeper or neighbour to prevent or minimise the interference.[27]

[24] I am satisfied that the interference with the pool by the debris would be obviated by a pool cover. However, Mr and Mrs Hewitt do not believe they should have to buy a pool cover due to the cost and effort because of their pool's irregular shape. Mr Hewitt submitted that he and Mrs Hewitt should not have to pay these costs or expend the effort of having to clean and maintain the debris.

[25] However, during the hearing Mr Hewitt conceded the cost of a pool cover would be a 'one-off.' The arborist report also notes that the trees are approximately 40 years old.[28] Mr and Mrs Hewitt bought their property in 2014, well after the trees were there.

[26] Integrating the Tribunal's approach to dropping foliage with Mr and Mrs Hewitt's awareness of the trees when they purchased their property, and their failure to obtain a pool cover to prevent or minimise the interference, I am satisfied that they have impliedly consented to the dropping of the foliage and have not taken steps to prevent or minimise the interference with their pool.

[27] Mr and Mrs Hewitt accept the leaves and flowers as part of the 'natural incidence' to which they impliedly consent when 'living in suburban landscape that includes trees'.[29]

[28] I am therefore not satisfied that Mr and Mrs Hewitt have established that the dropping of the foliage constitutes a substantial, ongoing and unreasonable interference.

[29] Because Mr and Mrs Hewitt have not established that the trees have caused or are likely to cause substantial injury or damage or substantial, ongoing and unreasonable interference within the next 12 months, the appropriate order is that the application is dismissed.

[1] Statement of William Robert Manners, Principal Officer Natural Environment, dated 22 June 2018, [4].

[2] Letter Department of Justice and Attorney-General to Dennis Hewitt, dated 11 September 2017.

[3] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, s 66(2)(a), (b)(i).

[4] Ibid s 71.

[5] 'A guide to preventing structural damage', undated; 'Cracking in Masonry', dated 2016.

[6] Statement of Dennis Hewitt, dated 28 June 2018.

[7] 'Do you have a Monster in Your Backyard?', Bundaberg Regional Council, dated 11 April 2017; 'Keeping Tree Roots out of Sewer Lines', Dubbo City Council, undated; 'Trees to Avoid Planting Near Sewer Pipes', Hunter Water, dated 2011.

[8] Statement of William Robert Manners, Principal Officer Natural Environment, dated 22 June 2018, [6], [7].

[9] Unlike McHugh v Withers [2017] QCAT 346, where the roots of the tree extended under the pool.

[10] Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214.

[11] Report of Matthew Williams, Tree Knowledge Consulting, dated 15 March 2018.

[12] Unlike McHugh v Withers [2017] QCAT 346, where branches had fallen from the tree, the tree was over-mature to senescent and had areas of decay.

[13] McDonald v Henry [2013] QCAT 87, [15].

[15] McDonald v Henry [2013] QCAT 87, [16], [17].

[16] Unlike McHugh v Withers [2017] QCAT 346, where the tree was 0.27 metres from the boundary.

[17] Report of Matthew Williams, Tree Knowledge Consulting, dated 15 March 2018.

[18] Unlike McHugh v Withers [2017] QCAT 346, where the canopy overhang was 4.0 metres.

[19] Statement of Luke Harper, Aquamech Services, dated 5 June 2018.

[21] Edmonds v Yeates [2013] QCAT 7, applying Graham & Ors v Welch [2012] QCA 282.

[23] Bundle of photographs dated various.

[24] See for example Thomsen v White [2012] QCAT 381; Wallace v Keg [2012] QCAT 466.

[25] Edmonds v Yeates [2013] QCAT 7, [9] (citations omitted).

[28] Report of Matthew Williams, Tree Knowledge Consulting, dated 15 March 2018.

[29] Edmonds v Yeates [2013] QCAT 7, [9].