King v Samios [2014] QCAT 165

How does the Tribunal determine who pays the costs of the works?

[6] The Tribunal may require the tree-keeper or neighbour to pay the costs associated with carrying out an order to carry out work on a tree.[3]

[7] The Tribunal therefore has a discretion in determining who should pay the costs of the initial works and subsequent works.[4]

What factors are relevant in exercising the discretion?

[8] A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's tree.[5] Part of this entails cutting and removing any branches of a tree that overhang a neighbour's land.[6]

[9] Mr Samios therefore has a primary obligation to care and maintain his trees and cut and remove them to the extent that they overhang Mr and Mrs King's land.

[10] However, Mr and Mrs King's application went beyond this.

Was there a reasonable basis for the application against the tree-keeper?

[11] The basis for Mr and Mrs King's application was that Mr Samios' trees dropped leaves and debris on their land, caused staining to their newly laid tiles, interfered with their sky views and shaded their pool, solar panels and a bedroom of their house.

[12] The independent arborist stated:

In my opinion this group of trees does not represent a significant hazard to people or property within (Mr and Mrs King's) property within the next 12 months and the debris that is accumulating within (Mr and Mrs King's property) could be maintained through routine maintenance.[7]

[13] The arborist relevantly found:

• (a) The bases of the trees are wholly on the tree-keeper's property;[8]

• (b) The maximum spread of the canopies extending over Mr and Mrs King's property is less than 1.5 metres past the dividing fence;[9]

• (c) The trees were present when Mr and Mrs King purchased their property in April 2006, but two to four metres shorter (than their current height of between nine and ten metres);[10]

• (d) Leaf and twig debris from the trees is causing minor surface staining of the pool that is exacerbated by the tiles' white colour and could be resolved by normal property maintenance;[11]

• (e) It is unlikely that the trees currently represent or have the potential to cause any serious damage or serious injury within the next 12 months;[12]

• (f) The trees would significantly shade Mr and Mrs King's property from mid afternoon, increasing in severity during winter;[13] and

• (g) The canopy partially obstructs the view of the sky from Mr and Mrs King's property, having grown at a normal rate since Mr and Mrs King purchased their property, performed renovation works and installed their solar electrical system.[14]

[14] The arborist then recommended minor pruning works to:

• • Reduce the debris accumulating within Mr and Mrs King's property;[15]
• • Remove the canopy overhanging Mr and Mrs King's property;[16]
• • Increase the view of the western sky from Mr and Mrs King's house;[17] and
• • Significantly reduce the shading and increase the light to Mr and Mrs King's property.[18]

[15] The dropping of leaves, flowers, fruit, seeds or small elements is considered part of the natural incidence to which Mr and Mrs King consented when they purchased their property.[19] The evidence is that the leaves and debris is causing minor surface staining only. This is not substantial, ongoing and unreasonable interference:

... the presence of trees in urban locations requires all residents to take some responsibility for cleaning gutters and leaf litter on a regular basis.[20]

[16] This was not a reasonable basis for the application.

[17] The interference with Mr and Mrs King's view is merely minor to moderate because:

• (a) Although the view affected is from an entertaining area at the rear of Mr and Mrs King's property, Mr and Mrs King only renovated their home to incorporate the sky views in 2012 - the view was therefore not a feature when they took possession of their property;[21]

• (b) The view is not of water or iconic;[22]

• (c) The sky can be viewed from other parts of the property;[23] and

• (d) The view is not to be sliced up[24] and confined to the sky - the totality of the view incorporates the aesthetically pleasing trees.[25]

[18] This was not a reasonable basis for the application.

[19] Based on the arborist's findings, the only substantial, ongoing and unreasonable interference is to the sunlight to Mr and Mrs King's house - mainly to the recently installed solar panels and recently renovated entertainment area.

[20] Mr and Mrs King's application therefore had a reasonable basis - but only to the extent of the shading and interference with the sunlight.

[21] The existence of the trees prior to Mr and Mrs King undertaking their renovations is also relevant in determining who should pay for the work.[26]

[22] It is relevant because Mr and Mrs King renovated in an area close to the trees and to that extent should have appreciated the risk of the trees' impact on their renovations. Mr Samios should not bear the burden of their failure to appreciate this risk.[27]

[23] The Tribunal must consider whether the trees have any historical, cultural, social or scientific value[28] and any contribution the trees make to the local ecosystem[29], the scenic value of the land or locality[30], public amenity[31], and privacy and protection from the sun, wind and noise[32].

[24] Mr and Mrs King's subjective concerns aside, the trees cannot fairly be described as a nuisance or burden - they are subject to a Brisbane City Council protection order as Significant Native Vegetation, provide and improve privacy to both neighbours and the photographs show a size sufficient to attract birds and other fauna.[33]

[25] By interfering with the sunlight over Mr and Mrs King's pool and entertainment area, the trees' shading also paradoxically benefits Mr and Mrs King by protecting them and their guests from the sun's harmful ultraviolet rays.

[26] The agreed orders address most of Mr and Mrs King's other concerns without any benefit accruing to Mr Samios. The works will reduce debris that they would otherwise need to accept as a part of the "natural incidence" of "living in a suburban landscape that includes trees"[34] and enhance a view to which they are not otherwise entitled.[35]

[27] Because Mr Samios allowed his trees to grow to an extent that they substantially interfere with Mr and Mrs King's sunlight, it is appropriate that he pay the costs of the Initial Works.

[28] It is Mr Samios' responsibility as a tree-keeper to properly care and maintain the trees and ensure they do not substantially and unreasonably interfere with Mr and Mrs King's sunlight - on an ongoing basis.

[29] However, Mr and Mrs King will benefit from the works over and above Mr Samios' obligations as a tree-keeper to properly care and maintain the trees and ensure that the trees do not substantially and unreasonably interfere with the sunlight.

[30] It would not be just or equitable to require Mr Samios to pay all the costs of ongoing maintenance that predominantly benefits his neighbours. Equally, it would not be just or equitable to require Mr and Mrs King to pay all the costs of ongoing maintenance of trees that are not on their property and for which they are not the tree-keeper.

[31] It is therefore appropriate that Mr and Mrs King jointly pay to Mr Samios one half the costs of the Subsequent Works.

[32] Legal costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[36], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[37]

[33] There is therefore a strong indicator against awarding costs:

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s.100.[38]

[34] There is nothing here to justify departing from the strong indicator against awarding costs. The arborist's report did support a substantial, ongoing and unreasonable interference - but only to sunlight. The remaining grounds of Mr and Mrs King's application were unnecessary.

[35] Each party is to bear their own legal costs.

[36] I therefore make these orders encompassing the proposed agreement of 21 November 2013[39] and my determination on the costs of works and legal costs:

1. Peter Samios, the registered owner of the lot at 146 Lexton Street, Stretton, Queensland, 4116 ("the Tree-Keeper") will arrange to have the following works carried out on the trees the subject of the dispute ("the Initial Works"):
   • (a) Canopy reduction pruning to 7.0m in height of the entire group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper's property;
   • (b) Lateral reduction pruning of the group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper's property so that their canopies do not extend over the adjacent boundary fence line;
2. Maintenance pruning to be performed by the Tree-Keeper at intervals not exceeding one (1) year to maintain the canopy of the group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper's property at their height and spread after the Initial Works ("the Subsequent Works");
3. All tree debris to be removed from the properties after the recommended pruning is performed;
4. Climbing spurs / climbing gaffs / climbing irons shall not be used during the pruning works;
5. The Initial Works and the Subsequent Works must be completed:

(a) In accordance with Australian Standard 4373-2007 "Pruning of Amenity Trees"; and

(b) By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture;

1. Peter Samios is to apply for Brisbane City Council approval or exemption for the Initial Works and Subsequent Works within 14 days of this Order;
2. The Initial Works must be completed within 60 days of Brisbane City Council approval or exemption;[40]
3. Peter Samios is to pay the costs of the Initial Works;
4. Richard King and Kiria King jointly pay to Peter Samios one half of the costs of the Subsequent Works as and when they fall due; and
5. Each party is to bear their own legal costs.

[1] Tribunal Directions dated 19 February 2014 at paragraphs [2], [3], [4] and [5].

[2] Tribunal Directions dated 19 February 2014 at paragraph [1].

[3] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 66(5)(e).

[4] Thomsen v White [2013] QCATA 37 at [23] and [24].

[5] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 41.

[6] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 52(1).

[7] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraphs 3.3 and 4.3.

[8] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.1.3.2.

[9] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.2.3.

[10] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.2.8.

[11] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.2.12.

[12] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.2.15.

[13] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.3.2.1.

[14] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraphs 2.3.2.2 and 2.3.4.

[15] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 3.9.1.

[16] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 3.9.2.

[17] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 3.9.3.

[18] Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 3.9.4.

[19] Thomsen v White [2012] QCAT 381 at [12]; Bunyard v McManus [2013] QCAT 258 at [37].

[20] Thomsen v White [2012] QCAT 381 at [29].

[21] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [34].

[22] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [41].

[23] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [56].

[24] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [44].

[25] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [45].

[26] Thomsen v White [2012] QCAT 381 at [24].

[27] Thomsen v White [2012] QCAT 381 at [25].

[28] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 73(1)(c).

[29] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 73(1)(d).

[30] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 73(1)(e).

[31] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 73(1)(f).

[32] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 73(1)(g).

[33] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [62].

[34] Edmonds v Yeates [2013] QCAT 7 at [9].

[35] Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 at [32].

[36] Queensland Civil and Administrative Tribunal Act 2009, section 100.

[37] Queensland Civil and Administrative Tribunal Act 2009, section 102.

[38] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].

[39] Pursuant to Tribunal Directions dated 19 February 2014 at [5].

[40] As recommended in the Tree Assessment Report of Michael Sowden dated 10 November 2013 at paragraph 2.4.4.