BOATER & ANOR V KWOK & ANOR

Ian and Brionhy Melissa Boater sought orders to require Robert Ching Hang Kwok and Jenny Kwok to prune branches of a Tipuana tree, situated on the Kwoks' land, that were interfering with the Boats' use and enjoyment of their property. The Boats alleged that the tree was causing substantial, ongoing, and unreasonable interference by dropping leaves and flowers into their pool for four months of the year. The Kwoks denied that the tree was causing unreasonable interference. The Kwoks applied to have the Boaters' application dismissed as lacking in substance. The Tribunal refused the application to strike out and dismissed the application for a tree dispute. In coming to this decision, the Tribunal considered whether the interference was substantial, ongoing, and unreasonable and whether the evidence before the Tribunal was sufficient to justify the making of tree orders. The Tribunal found that the interference was not substantial, ongoing, and unreasonable and that the evidence was not sufficient to justify the making of tree orders. The Tribunal was not satisfied that the interference was continuous or for most of the year. The evidence showed that the interference was for four months of the year and amounted to the Boats having to clean their pool and deck more frequently than they otherwise would have to. The Tribunal found that this did not amount to substantial, ongoing, and unreasonable interference. In addition, the Tribunal found that the evidence before it was not sufficient to justify the making of tree orders. The Kwoks had provided photographs of the impact that pruning the tree would have, but there was no evidence from an arborist as to the impact of pruning on the tree or whether pruning would reduce the leaf litter issue.