Burridge v Ward - [2024] QCAT 442

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Burridge v Ward [2024] QCAT 442

PARTIES:

LAUREN ALICE BURRIDGE

(applicant)

v

PEGGY WARD

(respondent)

APPLICATION NO/S:

NDR233-22

MATTER TYPE:

Neighbourhood Dispute

DELIVERED ON:

30 September 2024

HEARING DATE:

23 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member S M Burke

ORDERS:
1.     The Applicant’s application for removal of the macadamia tree the subject of the complaint is dismissed.

2.     The Respondent is to prune the macadamia tree the subject of the complaint once yearly to prevent epicormic growth extending beyond the dividing fence.

3.     Under the supervision of a Min AQF level 5 arborist, the Respondent is required to:

(a)   engage a contractor to excavate a trench 100mm in width and 500mm in depth along the fence line of the Respondent’s property in the vicinity of the subject macadamia tree to identify any roots that encroach into the Applicant’s property that are non-structural;

(b) engage a contractor to sever any roots most likely to be exacerbating damage to the Applicant’s slab footpath in accordance with AS4970-2009 Protection of Trees on Development Sites;

(c)   attend to the works described in (a) and (b) above on or before 1 March 2025.

CATCHWORDS:
NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 72, s 76

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).

REASONS FOR DECISION

The Applicant, Ms Lauren Alice Burridge, and the Respondent, Mrs Peggy Ward, own adjoining land, the former at 1 Stone Street Gympie and the latter at 31 O’Connell Street Gympie.
Proceedings have been commenced by the Applicant relating to an application for a tree dispute dated 18 November 2022 in relation to alleged overhanging of a macadamia tree four metres over the dividing fence line, over the house guttering, and causing damage to the pathway at the Applicant’s property.
The Applicant seeks the following orders –
(a)remove macadamia tree;
(b)remove or prune the roots of a macadamia tree;
The Relevant Legislation
This Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.[1]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 61.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides, pursuant to s 52, that an owner of land on which a tree is situated (‘the tree-keeper’) is responsible for:
(a)cutting and removing any branches of the tree that overhang a neighbour’s land;
(b)ensuring that the tree does not cause:
(i)      serious injury to a person; or
(ii)      serious damage to a person’s land or any property on a person’s land;
(iii)     substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.
Section 46 of the Act provides that 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;
(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.
The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land.
Further, pursuant to s 49 of the Act, for present purposes, a neighbour in relation to a particular tree or the tree-keeper for a particular tree is the body corporate for the community titles scheme if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997 (Qld).[2]
[2]The Act, s 49(1)(b).
Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act.
Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land –
(a)to prevent serious injury to a 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.
Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, 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 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 our 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.
Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters:
(a)the neighbour has made a reasonable effort to reach agreement with the tree-keeper;
(b)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(c)to the extent the issue relates to land being affected because branches from the tree overhang the land –
(i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(ii) the neighbour cannot properly resolve the issue using the process under Part 4;
(d)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
Compliance with Section 65 of the Act
Evidence, by way of correspondence, has been provided by the Applicant indicating that attempts to resolve the issues with the Respondent have been instigated by the Applicant.
Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper I am satisfied that the requirements of s 65 of the Act have been fulfilled.
The Dispute
The Applicant asserts that the damage caused to the guttering of her house and root problems to her concrete pathway have been ongoing for many years. It is also asserted that the macadamia kernels and debris from the tree have caused a very unsafe situation impeding her access to her laundry and under the house.
The Applicant asserts that the tree is not properly maintained or trimmed on a regular basis and that as a consequence any view she may enjoy from her windows is obstructed by the overhanging tree.
By response dated 3 January 2023, the Respondent asserts that steps have been taken to trim the tree and that the Respondent has addressed all the issues contained in the Applicant’s application.
Attached to the Respondent’s response as attachment “A” is an email from the Respondent’s daughter to the Applicant attaching a scope of works from Brown’s Tree Services outlining planned tree works to be performed on 15 December 2022 as follows:
(a)size reduction of a macadamia nut tree in the back left hand corner of the property at 31 O’Connell Street Gympie;
(b)all limbs over neighbour’s property will be trimmed back to the fence line;
(c)all debris from the tree will be cleaned up.
The email on behalf of the Respondent advised that the works would be carried out by the arborist on 15 December 2022, requesting access to the Applicant’s property if necessary. The email also sought confirmation that the application for a tree dispute would be withdrawn once the works were complete.
Subsequently to the works being performed, the Applicant continued to claim that there was a tree dispute in existence between the parties.
Between November 2022 and January 2024, numerous communications were received by the Tribunal from the Applicant with specific evidence of the alleged effects of the offending macadamia tree.
By email dated 29 January 2024, the Applicant submitted that her concerns had not been addressed and that her safety was at risk unless the macadamia tree was removed. Numerous photos of the regrowth of the tree, and branches and kernels from the tree were included as evidence to support the Applicant’s claim.
In a response dated 1 July 2024, the Respondent’s daughter provided the following response on the Respondent’s behalf:
(a)that the Respondent agrees with the conclusions and recommendations of the Tribunal-appointed tree assessor and will adhere to the recommendation which also addresses the Applicant’s concerns over future foliage and branch growth;
(b)that the Respondent does not agree to the Applicant’s request for the removal of tree roots given the tree assessor’s report verifying only a single visible root;
(c)that the Respondent requests that the Applicant cease and desist further poisoning of tree roots;
(d)that the Respondent rejects the relevancy of the article relating to macadamia orchards provided by the Applicant to the Tribunal as it is irrelevant to a single tree in a suburban backyard;
(e)that the Respondent does not consider the personal background of the Applicant’s standing in the neighbourhood as a relevant issue in the dispute;
(f)that the Respondent is a 103-year-old war widow who has resided in her home since 1963. The accusation that the residents of 31 O’Connell Street have never communicated with the Applicant is irrelevant to the dispute and is insensitive to the Respondent’s age and medical condition.
Further problems regarding the subject tree were submitted by the Applicant to the Tribunal on 16 August 2024.
By a direction of the Tribunal dated 18 September 2023, the parties were notified that a tree assessor would be attending to conduct a tree assessment on 13 October 2023 at 31 O’Connell Street Gympie.
Arborist Report dated 20 October 2023
On 13 October 2023, Mr Steven Richards, a certified tree assessor, attended at 31 O’Connell Street Gympie to gather facts by observation and other simple tree tests to assess the offending tree and alleged source of nuisance to the Applicant, including leaf and nut litter, encroachment of branches and roots and light and view issues the subject of complaint.
Mr Richards observed that the subject tree had been maintained to the dividing fence and did not display any cause of nuisance to the neighbouring property. The encroachment of roots into the Applicant’s property could only be verified by a single visible root.
Numerous cracks were visible throughout the Applicant’s concrete slab but there were no telltale signs of lifting or heaving on a crack edge that would suggest the presence of a tree root.
Mr Richards concluded that the subject tree had been in existence for many decades in its location and is a valuable amenity asset. He concluded that removal of the tree for the alleged grievance is not considered to be warranted.
Mr Richards concluded that works should be carried out on the subject tree as follows:
(a)pruning works must be performed by a Min AQF level arborist with appropriate insurances;
(b)supervision of root excavation and severance must be conducted by a Min AQF level 5 arborist;
(c)all works must be performed in accordance with AS4373-2007 pruning of amenity trees and AS4970-2009 Protection of Trees on Development Sites.
I accept the recommendations of the tree assessor.
Given the grievances aired by the Applicant, I am satisfied that if the Respondent complies with the recommendations of the tree assessor there should be no further reason for any correspondence between the Applicant and the Respondent. Given the age of the Respondent, it is appreciated that her daughter is able to assist with the compliance with the orders of the Tribunal.
I am satisfied that the Respondent has taken steps to appease the concerns of the Applicant and that any malice in relation to the offending tree should no longer be directed at the Applicant.
The Tribunal has taken into account the safety concerns and disruption caused to the Applicant to date but is satisfied that a proper maintenance of the subject tree should be sufficient to address the Applicant’s grievances.
Orders
Based on the reasons provided above, the Tribunal determines that the following orders should be made:-
(a)the Respondent is to prune the macadamia tree the subject of the complaint once yearly to prevent epicormic growth extending beyond the dividing fence;
(b)under the supervision of a Min AQF level 5 arborist, the Respondent is required to:
(c)engage a contractor to excavate a trench 100mm in width and 500mm in depth along the fence line of the Respondent’s property in the vicinity of the subject macadamia tree to identify any roots that encroach into the Applicant’s property that are non-structural;
(d)engage a contractor to sever any roots most likely to be exacerbating damage to the Applicant’s slab footpath in accordance with AS4970-2009 Protection of Trees on Development Sites.