Is the tree causing serious damage to Mr Thomsen's land or property on his land?

[4] In his report of 18 February 2012, the arborist reported that the tree covered the entire width of Mr Thomsen's property and that the canopy extends eight metres from the rear fence into the property. Mr Thomsen's house is six metres from the rear boundary, with a rear deck only three metres from the boundary. The arborist says that the tree blocks all sunlight to the rear of Mr Thomsen's house and this could be a reason why there is mould on Mr Thomsen's rear deck.

[5] The arborist reported that there is a large amount of leaf fall into Mr Thomsen's property which does affect the enjoyment of some areas. The arborist noted that seedlings from the tree are growing in Mr Thomsen's gutters, even though Mr Thomsen had installed gutter guard.

[6] The arborist reported that the tree's structural roots extend four metres into Mr Thomsen's yard, with multiple smaller roots present throughout the rest of the backyard. Mr Thomsen says that the roots present a trip hazard and prevent him from using this area effectively. Mr Thomsen is concerned about tree roots invading his drainage pipes. The arborist could find no evidence of root invasion at the time of inspection but he stated that invasion was "highly probable" over time.

[7] The arborist noted that the fruit of this tree does attract birds and bats, and he saw evidence of bat droppings on the rear wall of Mr Thomsen's house. Mr Thomsen told the arborist that bat droppings also affect the deck and roof of his property and contaminate the water tank.

[8] Mrs White does not disagree with the arborist's findings about the effect of the tree on Mr Thomsen's land.

[9] Because of the arborist's findings that the tree roots are likely to interfere with Mr Thomsen's drainage pipes, I am satisfied that an order is necessary to prevent serious damage to Mr Thomsen's property.

Is the tree causing substantial, ongoing and unreasonable interference with Mr Thomsen's use and enjoyment of his land?

[10] The Neighbourhood Disputes Resolution Act 2011 was modelled, in part, on the New South Wales Trees (Disputes Between Neighbours) Act 2006. Section 7 of the New South Wales Act provides:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

[11] The Land and Environment Court of New South Wales has determined[3] 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. The Court took that view because:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

[12] The argument in favour of a balance of obligations between tree-keeper and owner is even more compelling in Queensland as the Neighbourhood Disputes Resolution Act 2011 requires "serious damage" or a "substantial, ongoing and unreasonable interference". If the only "damage" to Mr Thomsen's home was caused by the accumulation of leaf litter, I would not be persuaded that an order was necessary to remedy, restrain or prevent an interference with his land.

[13] The Land and Environment Court also provides guidance about Mr Thomsen's problem of bat droppings. The Court has determined that[4] the fact that a tree may attract and provide habitat to an animal, bird or insect does not mean that any damage caused by such an animal, bird or insect is caused by the tree which provides that habitat.

[14] "In relation to" (the Queensland wording) a tree is not, in my view, materially different from "as a consequence of" (the New South Wales wording). The Land and Environment Court correctly drew a distinction between the tree and animals and birds that might use the tree. It is a distinction that is equally applicable under the Queensland legislation. If Mr Thomsen's only complaint about the tree was the presence of bat droppings, I would not be inclined to make an order in his favour.

[15] The tribunal's power to make an order about an obstruction of sunlight is available if the tree rises at least 2.5 metres above the ground and there is a severe obstruction of sunlight to a window or roof[5]. Whether or not the obstruction existed at the time Mr Thomsen took possession of the land is relevant only to a view, not to sunlight[6]. The tree is causing a severe obstruction to sunlight to Mr Thomsen's house and roof. That is a substantial, ongoing and unreasonable interference with the use and enjoyment of his land and it is appropriate that I make orders to address that problem.

[16] I also accept that the structural roots of the tree present a trip hazard which renders that part of Mr Thomsen's land dangerous and unusable without major works.

[17] The arborist suggests that Mr Thomsen's problems can be addressed by the installation of a root barrier and the reduction of the tree canopy.

[18] The installation of a root barrier will address Mr Thomsen's concerns about roots invading his drainage pipes but it is an expensive and invasive option. The barrier will require yearly inspections and it does not address Mr Thomsen's concerns about the structural roots constituting a trip hazard. The arborist has pointed out that any action to address the structural roots will, almost certainly, affect the health and integrity of the tree.

[19] I cannot see how the arborist's proposal to reduce the canopy but allow it to grow over Mr Thomsen's roof line will effectively address the problem of sunlight obstruction. Mr Thomsen will not be able to put solar panels on his roof if the canopy extends over it. The arborist does not say how much of the canopy should be thinned, or where it should be thinned or how the thinning will introduce sunlight into Mr Thomsen's home.

[20] The tribunal should not make an order to remove a living tree unless the issue relating to the tree cannot otherwise be satisfactorily resolved[7]. Regrettably, I can see no other option in this case. The options suggested by the arborist do not properly deal with the problems of tree roots and obstruction of sunlight and they do not address the problem of the surface roots at all. The options are expensive and require ongoing maintenance. The maintenance regime will require cooperation between the neighbours which has not, to date, been evident. There is no point in the tribunal making orders that are bound to fail.

[21] Mrs White makes the point that the tree was in place before Mr Thomsen bought the land and before he built his home. Mr Thomsen bought the land in 2007 and built his home in 2008. Mrs White says that the tree would not pose a problem if Mr Thomsen had not built his home to the rear of the block but had conformed to the usual six-metre setback from the front alignment.

[22] Mrs White argues that Mr Thomsen should have accepted the presence of the tree, and the likely effects, when he decided to build his house and he cannot now ask for it to be removed.

[23] In support of her argument, Mrs White has provided a Google Map view of the area. That does show that Mr Thomsen has an unusually large front yard. A photograph provided by Mr Thomsen shows that his house is built well back on the block.

[24] I understand Mrs White's point of view. It is a matter that I am entitled to consider when making my decision[8] but I prefer the approach adopted by the Land and Environment Court[9]: the existence of the tree prior to construction will not be taken into consideration in determining whether an order should be made but it will be relevant when determining who should pay for the work.

[25] I am satisfied that Mr Thomsen has deliberately placed his house close to the tree when other options were available to him. It may be that Mr Thomsen did not properly appreciate the extent of the risk but Mrs White should not have to bear the burden of his lack of knowledge or investigation.

[26] Mr Thomsen says that he tried to come to an arrangement with Mrs White to remove the tree before houses were built on a neighbouring property. He says that the removal would have been easier and cheaper then. That may be so, but it is Mr Thomsen's choice about the location of his home that created the need for the removal of the tree.

[27] The appropriate order is that the tree should be removed but that Mr Thomsen should bear the cost of removal.

[28] Mr Thomsen has provided photographs of water damage to his home but has not provided any evidence of the cost of rectification. He has provided two quotes for the installation of gutter guard, but not an invoice. Mr Thomsen has not provided sufficient evidence of any loss.

[29] Even if Mr Thomsen had provided that evidence, I would not be making an order in his favour. I adopt the determination of Land and Environment Court[10], that the presence of trees in urban locations requires all residents to take some responsibility for cleaning gutters and leaf litter on a regular basis. Gutter guard is one solution to that problem. If his failure to undertake regular maintenance resulted in water penetration to his home, Mr Thomsen must bear that responsibility.

[30] Mr Jorgen Thomsen, the registered owner of the lot at 14A Lucas Street Scarborough will arrange for the removal of the Ficus benjamina the subject of this dispute at his own cost.

[31] The removal of the Ficus benjamina is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

[32] Mrs Victoria White, the registered owner of the lot at 199B Scarborough Road Scarborough and the tree-keeper, will provide access to the arborist engaged by Mr Thomsen to carry out the removal of the Ficus benjamina.

[33] Mr Thomsen will give Mrs White not less than 14 days notice in writing of the arborist's intention to attend and remove the Ficus benjamina. Mrs White will not unreasonably refuse access.

[34] The removal of the Ficus benjamina is to be carried out within 90 days of the date of this order.

[1] Section 46(a)(i) Neighbourhood Disputes Resolution Act 2011.

[2] Section 66(2) Neighbourhood Disputes Resolution Act 2011.

[3] Barker v Kyriakides [2007] NSWLEC 292 at [20].

[4] Dooley & Anor v Nevell [2007] NSWLEC 715 at [22].

[5] Section 66(3) Neighbourhood Disputes Resolution Act 2011.

[7] Section 72 Neighbourhood Disputes Resolution Act 2011.

[9] Black v Johnson (No 2) [2007] NSWLEC 513 at [15].