Allwood v Steel
[2024] QCAT 350
•22 August 2024
QUEENSLAND CIVIL AN
ADMINISTRATIVE TRIBUNAL
CITATION:
Allwood v Steel [2024] QCAT 350
PARTIES:
JOHN STEPHEN ALLWOOD (applicant)
CAROLYN ROSEMARY ALLWOOD (applicant)
v
LEONARD ALEXANDER STEEL (respondent)
APPLICATION NO/S:
NDR016-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
22 August 2024
HEARING DATE:
9 July 2024
HEARD AT:
Brisbane
DECISION OF:
Member Poteri
ORDERS:
1. The Respondent must pay the sum of $1,000 into the nominated bank account of the Applicants by 4pm on 25 October 2024.
2. The Applicants must provide the details of their bank account to the Respondent by the email address, [email protected], noted in the response filed in the Tribunal on 22 March 2022.
CATCHWORDS:
TREES – VEGETATION AND HABITAT PROTECTION – DISPUTE BETWEEN NEIGHBOURS – Where the Applicants allege that the tree situated on their neighbour’s property is affecting the use and enjoyment of their property by seeds or large seed cones falling from a bunya pine tree situated on the Respondent’s property that are likely to cause serious injury to a person or serious damage to property situated on the Applicants’ property – Where the Applicants allege that the tree causes substantial ongoing and unreasonable interference with the use and enjoyment of their use of the property – Where the Applicants are seeking an order for the removal or pruning of the tree and compensation for any damage caused to the Applicants’ property – Where the Respondent denies the allegations of the Applicants.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 52, s 65, s 66
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
The Applicants, John Stephen Allwood and Carolyn Rosemary Allwood (‘Allwoods’), are the owners of a residential property situated at 25 Forestry Road, Springbrook. This property is used by the Allwoods for short term rental.
The Respondent, Leonard Alexander Steel (‘Steel’), is their next-door neighbour and is the owner of a residential property situated at 23 Forestry Road, Springbrook.
The source of this dispute is a large bunya pine tree which at the time of filing of the Application (‘Application’) by the Allwoods on 31 January 2022 was situated on Steel’s land. Therefore, Steel is the tree-keeper under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘NDR Act’).
This matter was heard before me on 9 July 2024. Both parties were self-represented.
It is clear from the material filed by the parties and during the hearing that the tree has caused much friction between the parties and their relationship could only be described as very acrimonious.
In the Application the Allwoods have made a claim for removal of the tree and $4,148.70 for compensation for damage to their property caused by falling seed cones from the tree. At the hearing the parties advised the Tribunal that the tree has now been removed and the Allwoods are now only claiming $1,000 for the damage to their property.
John Allwood (‘J Allwood’) gave evidence at the hearing. Further the Allwoods’ concerns are outlined in the Application. They are:
(a)The Allwood house was erected in 2017 and in correspondence to Steel dated 15 January 2018, J Allwood says that 12 seed cones had fallen on his property. See letter attached to the Application.
(b)The tree is close to the Allwoods’ property and some of the branches overhang their property. See the sketch and photographs annexed to the Application. J Allwood says that he had attempted to minimise any potential damage to the Allwood’s property by trimming the lower branches of the tree.
(c)He was concerned about the danger to himself, his family and his guests because the seed cones from the tree can weigh up to 10 kilograms and the tree is large. He says that when seed cones fall, they hit the ground or whatever other object is in their path and break up with substantial force.
(d)The carport is some 5 metres from boundary fence. In Appendix 1 to the Application J Allwood says that in December 2018 seed cones from the tree were being deflected from branches on the tree onto his carport. These branches were not overhanging the Allwoods’ property. At the time he was working on the carport but ceased that work because he considered it too dangerous because of falling seeds.
(e)J Allwood says in Appendix 1 to the Application that from 2017, seed cones had fallen on the Allwoods’ property. He also says that at other times after a storm, seed cones had dropped and caused damage to the house and carport.
(f)The issue of the storms in January 2022 was raised by Steele during the hearing and J Allwood responded that seeds from broken seed cones were on his property before the storms and there were no large branches/debris present that could have caused damage to the car port or the house after the storms.
(g)J Allwood stated that when the seed cones fall and hit the ground or any other object or branch in their path, the seed cones can fall apart. The Allwoods have produced photographs in the material filed in the Tribunal on 30 August 2023 which shows evidence of the broken seed cones in the Allwoods’ property and damage to their property. J Allwood stated that he had placed styrofoam on top of the car port to minimise any damage. This measure was only partly successful. See photograph 4 in the material filed in the Tribunal on 30 August 2023.
(h)J Allwood says that there has been damage to the to the roof of the carport and damage to the fascia of the Allwood house. There is photographic evidence of shattered seed cones. Allwood says that although he does not live at the property, he is of the view that the only explanation and possibility for the cause of the damage and the broken seed pods being on the Allwood property is that the seed cones fall from the top of the tree and hit a branch and break up or partly break up and are deflected onto the Allwood property. Attached to the Application is a diagram and photographs of branches of tree.
(i)J Allwood says that he has repaired the car port himself. The Allwoods are now only claiming the sum of $1,000 for the cost the repair to the fascia of the house. A copy of an account from Deluxe Built dated 27 July 2022 is attachment 1 to the material filed in the Tribunal on 30 August 2023.
Steel gave evidence at the hearing, and he has provided material in response to the Application. His position is:
(a)The issue with the tree could have been managed by the Allwoods by appropriate pruning of the branches and placing netting to minimise the impact of the falling seed cones.
(b)Steel accepts that the seed cones can be potentially dangerous, and he had a sign on his fence which gives a warning of falling seed cones, but he says the seed cones fall directly onto the ground.
(c)Steel denies that the seed cones have deflected off the branches of the tree and fallen onto and caused the damage to the Allwoods’ property.
(d)Steel advised the Tribunal that he believes the damage to the Allwood property was caused by flying debris from severe storms in January 2022 when one of his neighbours heard a large bang. Steel did accept that he or his neighbour did not witness any branches or debris travelling towards the Allwoods’ property during the storms.
(e)In Steel’s response (attachment 2 filed in the Tribunal on 21 April 2022) Steel says that the seed cones weigh between 5 and 10 kilograms but that he has never seen a seed cone deflect 5 metres and due to their weight and the thickness of the branches the seed cones break up before reaching the ground. He says that he has never found a seed cone more than a metre from the outer most branches.
(f)Steel says that the Allwoods should have chosen a better position on their property to erect the carport away from the tree where there was no possibility of seed cones being a danger to the carport.
(g)Steel sent a letter to the Allwoods dated 20 January 2018 where he states that the seed cones “become evident” each year about August and finish at the end of January and the seed cones fall from approximately October to January each year.
(h)Steel says that the Allwoods are not at their property and that they have not personally witnessed the seed cones falling from the tree and causing damage to their property. Therefore, the Allwoods’ evidence should not be accepted by the Tribunal.
LEGISLATION
The legislation that is relevant and should be applied in considering tree disputes between neighbours is the NDR Act. The provisions of the Act that apply to this dispute are ss 46, 52 and 66. For the perusal of the parties I set out these provisions in full.
46When is land affected by a tree
Land is affected by a tree at a particular time if—
(a) any of the following applies—
(i)branches from the tree overhang the land;
(ii)the tree has caused, is causing, or is likely within the next 12 months to cause—
(A)serious injury to a person on the land; or
(B)serious damage to the land or any property on the land; or
(C)substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(b) the land—
(i)adjoins the land on which the tree is situated; or
(ii)would adjoin the land on which the tree is situated if it were not separated by a road.
52Responsibilities of a tree-keeper
(1)A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.
(2)A tree-keeper is responsible for ensuring that the tree does not cause—
(a) serious injury to a person; or
(b) serious damage to a person’s land or any property on a person’s land; or
(c) substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
(3)This section does not create a civil cause of action based on a breach of a tree-keeper’s responsibilities.
Note—
This section is intended to help a tree-keeper and neighbours resolve any issues about a tree without a dispute arising. However, this section does not create a separate cause of action. This chapter provides ways of dealing with some issues that fall within a tree-keeper’s responsibilities under this section.
66Orders QCAT may make
(1)Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.
(2)QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a) to prevent serious injury to any person; or
(b) to remedy, restrain or prevent—
(i)serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii)substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
(3)However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—
(a) the tree rises at least 2.5m above the ground; and
(b) the obstruction is—
(i)severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
(ii)severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
(4)Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.
(5)Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—
(a) require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;
Examples—
• an order that requires the removal of the tree within 28 days
• an order that requires particular maintenance work on the tree during a particular season every year
• an order that requires particular work to maintain the tree at a particular height, width or shape
(b) require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
(c) require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
(d) authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
(e) require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
(f) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
(g) require a report by an appropriately qualified arborist.
(6)In this section—
window includes a glass door, window forming part of a door, skylight or other similar thing.
FINDINGS
In these proceedings Steel is the tree-keeper. The responsibilities of the tree-keeper are set out in s 52 of the NDR Act. These responsibilities include:
(a)Cutting and removing any overhanging trees that overhang a neighbour’s land.
(b)Ensuring that the tree does not cause serious injury to a person on the land, serious damage to a person’s land or any property on a person’s land or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
Pursuant to s 46 of the Act land is affected by a tree at a particular time if:
(a)Branches of the tree overhang the land; or
(b)The tree has caused, is causing, or likely within the next 12 months to cause serious injury to a person on the land, serious damage to the land or any property on the land or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(c)The tree adjoins the land on which the tree is situated.
In these proceedings the Allwoods’ property adjoins Steele’s property.
There are no longer any ongoing problems with the tree because the tree has been removed and Steel has paid for the cost of this removal. Therefore, there is no need for me to make any orders in this regard. There is still a claim for damage caused to the Allwoods’ property.
Steele accepts:
(a)The tree must be some sort of danger because he did have a sign on his fence warning of the danger of falling seed cones.
(b)The seed cones weigh between 5 and 10 kilograms and fall from a height of at least 17 metres and the falling of the seed cones occurs between October and January each year.
(c)He warned the Allwoods of the likelihood of falling seed cones.
Steel does not accept that the seed cones have entered the Allwoods’ property. He says that the seed cones fall straight to the ground or break up when they hit a branch when falling. Steel also says that the Allwoods do not live full time in their house and therefore their evidence should be discounted because they did not see the seeds or seed cones enter their property. The problem with this type of evidence is that it is anecdotal, and it is not direct. For example, Steel has provided no expert evidence that seed cones from a bunya pine always fall as he alleges.
I accept the evidence of J Allwood that he has seen the evidence of broken seed cones and seeds on his property on numerous occasions and he has produced photographs of the broken seed cones and seeds and the damage to the carport and fascia of the house. J Allwood also stated that when he inspected his property and the damage, he did not detect any other branches or debris from trees that may have caused the damage.
I also note the evidence provided by J Allwood that on one occasion work on their carport was suspended because he was concerned about the possibility of seed cones or seeds hitting him.
On the balance of probabilities, I find that seed cones, broken seed cones or seeds from the tree have fallen onto the Allwoods’ property and caused damage to the Allwoods’ carport and house.
The seed cones can weigh between 5 to 10 kilograms and fall from a height of some 17 metres so it is probable that some of the seed cones, broken seed cones or seeds can be deflected in any direction when such seed cones, broken seed cones and seeds hit an object from a height of some 17 metres or even at lower heights. It is my view that in such circumstances when the seed cones, broken seed cones and seeds strike an object, the force of the impact would be substantial and sufficient to cause the damage to the carport and fascia as alleged by the Allwoods. It seems to me that the only logical explanation for the damage caused to the Allwoods’ carport and house is that seed cones, broken seed cones or seeds from the tree have fallen from the tree and been deflected from the branches on to the Allwoods’ carport or house.
I find, pursuant to s 46 of the NDR Act, that before the tree was removed, the tree caused or was likely to cause within the next 12 months:
(a)Serious injury to a person on the Allwoods’ property; or
(b)Serious damage to the Allwoods’ carport and the fascia to the Allwoods’ house; or
(c)Substantial, ongoing and unreasonable interference with the Allwoods’ use and enjoyment of their property.
Steel is the tree-keeper of the tree and therefore pursuant to s 52(2)(b)(i) of the NDR Act he is responsible to remedy the damage caused to the Allwoods’ property.
J Allwood has repaired the carport himself and the Allwoods have reduced their claim to $1,000. Further, the Allwoods have not claimed for the Tribunal filing fee of $358 or any other costs. Therefore, I find the quantum of their claim is reasonable and I propose making an order for Steel to pay the Allwoods the sum of $1,000 within a period of approximately 60 days.
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