Budgen v Collins

[2014] QCAT 172

CITATION: Budgen v Collins [2014] QCAT 172

PARTIES:

Edward Budgen
(Applicant)

v
William Collins
(Respondent)

APPLICATION NUMBER:   NDR168-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: 24 April 2014

HEARD AT: Brisbane

DECISION OF: Professor Ashman, Member

DELIVERED ON: 24 April 2014

DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application by Mr Edward Budgen is dismissed.

CATCHWORDS : 

NEIGHBOUR DISPUTE—REMOVAL OF A TREE — where the neighbour seeks the removal of  trees - where safety of a person and property damage is alleged - where there is no evidence justifying the removal or the trees - where the Tree Keeper has already taken action to minimise the interference with the neighbour’s amenity

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 31, 57, 66, 71, & 72

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Joy Milgate (Applicant)
RESPONDENT:	Paul Wilson and Susan Wilson (Respondents)

REASONS FOR DECISION

1. Palms are endemic in Southeast Queensland and can be a source of great pleasure but also consternation for their owners and neighbours. Palms have brought neighbours of more than 20 years, Mr Budgen and Mr Collins, to the Tribunal to resolve a disagreement.

1. It appears that the relationship between the neighbours has not been amicable for quite some time and in July 2013 Mr Budgen lodged an application with the Tribunal stating that dead branches and heavy seed pods fall from the crown of the palms into his property creating a risk and causing damage to property. They overhang his land and, at the front of his property, obstruct his easterly view of Morton Bay.

1. Mr Budgen states that Mr Collins has largely ignored his requests to deal with the palms although he concedes that Mr Collins has removed some trees from the front yard opening up the view of the bay although vines remain, to which he continues to object.

1. Mr Budgen seeks the removal and/or pruning of trees, roots, and other tree work along with orders to enable that work to occur.

1. In his response to the application, Mr Collins writes that not long after Mr Budgen purchased the adjoining property several trees at the front of his property were poisoned and he was subject to a degree of harassment. He does not, however, assert that the culprit was Mr Budgen. Mr Collins does, however, dispute the allegation that complete branches and other significant debris fall into Mr Budgen’s property. As for Mr Budgen view of the bay, Mr Collins asserts that his neighbour never had a unobstructed bay view, providing as evidence a photograph of the front of his and Mr Budgen’s house taken in the early 1980s.

1. The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person, if there is a need to remedy, restrain, or prevent serious damage to the neighbours land or property, or if there is substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land[1]. Additionally, the Tribunal might make an order if the trees seriously obstruct sunlight or cause severe obstruction to a view from the neighbour’s dwelling[2]^.

   [1] Section 66(2) of the Act.

   [2] Section 66(3) of the Act.

1. The primary concern of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 in regard to trees is the safety of any person[3]. In addition, the Act states that the removal or destruction of living trees is to be avoided unless the issue relating to the tree cannot otherwise be satisfactorily resolved[4].

   [3] Section 71.

   [4]        Section 72.

1. Section 66(5) of the Act contains additional considerations including the payment of compensation to a neighbour for damage caused by the tree-keeper’s trees. In this matter, no compensation has been sought.

1. Mr Budgen provides a number of photographs but it is not readily apparent from those photographs how the trees are a risk to person and property or obstruct Mr Budgen’s view.

1. In mid-September 2013, the Tribunal issued directions that Messrs Budgen and Collins each contribute to the cost of an independent tree assessor to inspect the trees and report to the Tribunal. An appropriately qualified arborist, Mr Anthony Cockram carry out an inspection of the trees and provided a report to the Tribunal on the issues raised in Mr Budgen’s application. Mr Anthony Cockram conducted his inspection on 19 October 2013.

1. Mr Cockram identified the palms as a Golden Cane, a Cocos Palm, a Fan Palm, a Fishtail Palm, and a Clumping Fishtail Palm[5], described the status of each, and provided eight photographs that readily identify the trees and their locations. He reports that the Golden Cane, Cocos Palm, Fan Palm, and Fishtail Palm are in good health with average form. Stems have been removed from the clumping varieties but all are largely structurally sound. The Clumping Fishtail Palm is said to be in average to poor health with several main stems having recently been removed.

   [5]Respectively, Dypsis lutescens, Syagrus romanzoffiana, Livistona sp, Caryota sp, and Caryota mitis.

1. Mr Cockram reports that several additional trees and palms have been cut down in the past 12 months and these, he suggests, would have contributed to the issues that Mr Budgen raised in his application. He states that none of the palms identified above are likely to cause serious damage to the land or property. He writes that the bases/stumps of trees that have been cut down and remain in Mr Budgen’s yard are likely to impede any repair to the existing boundary fence or the erection of a new fence. This is not, however, a matter under consideration here.

1. No damage or injury has occurred as a consequence of the existence of the five palms and this is unlikely over the ensuing 12 months. Mr Cockram states that the Clumping Fan Palm will not cause substantial, ongoing, or unreasonable interference with Mr Budgen’s view as it accounts for only approximately 10% of the obstruction and the garden was established before Mr Budgen acquired and moved into the property. Mr Cockram also dismisses Mr Budgen’s assertion that the Philodendrons growing up the stems of palm in that area constitute unreasonable interference.

1. Mr Budgen gave oral evidence that his main concerns were the fishtail palm and the fan palm that has been poisoned. He continues to assert that these are a cause of risk. Mr Collins reported that he has taken steps to remove overhanging fronds and is willing to reduce any inconvenience that they might cause.

1. The Tribunal accepts Mr Budgen’s concerns about litter falling from the five palms. However, there is no evidence that there is serious risk to either property or person.

1. Mr Cockram suggested the removal of the Cocos Palm and removal of fronds overhanging Mr Budgen’s property. Mr Collins has poisoned that palm but does not plan to remove it completely.

1. It appears that Mr Collins and Mr Budgen have agreed generally with Mr Cockram’s recommendations, with some reservations from Mr Budgen.

1. Section 72 of the Act states that a tree should not be removed if another satisfactory resolution is found. Mr Cockram suggests pruning and Mr Collins has agreed that some action is warranted to ensure that the palms do not drop fronds into Mr Budgen’s property.

1. The Tribunal is not satisfied that the palms constitute serious damage or risk to person or property at this time or into the short- to medium-term. Mr Collins has already taken action and the Tribunal is satisfied that this is in accord with Mr Cockram’s recommendations. A prudent tree keeper would consider his recommendations and act to limit or eliminate, to the greatest extent possible, any prospect of risk or damage that might occur to his own or a neighbour’s person and property. Mr Collins has undertaken to do this.

1. In conclusion, the Tribunal finds that the Tree Keeper has already taken action along the lines recommended by the arborist. The Tribunal, therefore, dismisses the application.