Deguara v Dobson
[2013] QCAT 295
| CITATION: | Deguara v Dobson [2013] QCAT 295 |
| PARTIES: | Ms Vicki Deguara (Applicant) |
| v | |
| Mr James Dobson (Respondent) |
| APPLICATION NUMBER: | NDR185-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor A Ashman, Member |
| DELIVERED ON: | 21 June 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The tree-keeper is to engage an Australian Qualification Framework Level 3 qualified arborist to remove and stump grind a Eucalyptus teriticornis (Blue Gum) located on the tree-keeper’s property identified as Tree C in the arborist report of Mr David Roberts dated 1 December 2012. 2. The tree-keeper is to engage an Australian Qualification Framework Level 3 qualified arborist to carry out pruning in accordance with AS4373 of a Corymbia intermedia (Bloodwood) located on the tree-keeper’s property and identified as Tree G in the arborist report of Mr David Roberts dated 1 December 2012. 3. Access to the applicant’s property is to be provided to allow any part of these works to be undertaken, if required. 4. The work described in [1] and [2] is be at the tree-keeper’s expense and completed within two (2) months. |
| CATCHWORDS : | TREE DISPUTE – where branch fell onto neighbour’s house – where tree has wounds – where tree inadequately pruned – whether risk of future injury to persons or damage to property – whether compensation payable Neighbour Disputes Resolution Act 2011, ss 66, 71, & 72 |
APPEARANCES and REPRESENTATION (if any):
The matter was decided on the papers.
REASONS FOR DECISION
Mr Dobson moved into a cottage on a small rural acreage in Point Vernon nearly 40 years ago. Since that time, Point Vernon has evolved into a highly desirable suburban community. Having reached elder citizen status, Mr Dobson gave up market gardening and developed his property as a bird sanctuary and parkland. Native trees on his land have thrived and have grown to considerable heights.
Ms Deguara shares a property boundary with Mr Dobson. During an October 2010 storm, a branch fell from a Blue Gum located on Mr Dobson’s property onto Ms Degaura’s house and a fence, causing damage. The SES removed the tree and house repairs were carried out via an insurance claim.
Ms Deguara states that she contacted Mr Dobson some time after the incident and requested the removal of the remaining section of the Blue Gum and to prune other trees in close proximity to the property boundary. For a number of reasons, Mr Dobson declined.
Ms Deguara lodged an application with the Tribunal seeking orders for the removal of a tree and other tree work at Mr Dobson’s expense, authorisation from a government authority in regard to the tree, and access to Mr Dobson’s property to carry out the order. She also sought compensation of $643.
Ms Deguara is concerned about the trees, primarily because they pose a risk to property, produce leaf litter, restrict winter sunshine, and attract flying foxes.
The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person or 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.
The primary concern of the Neighbourhood Dispute Resolution 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.
Section 73 of the Act contains additional considerations relating to, for example, the location of the trees, any historical or cultural significance, contributions to public amenity, and risk that might exist in the event of a cyclone.
In November 2012, the Tribunal issued directions that an appropriately qualified arborist inspect and provide a report to the Tribunal on the issues raised in Ms Deguara’s application. Mr David Roberts conducted an inspection on 1 December 2012.
[10] Mr Roberts identified seven trees described in Ms Deguara’s application. Of these, only two were thought to pose a risk. Of most concern was the Blue Gum to which I referred in [2]. As a result of the branch failure in 2010, there is a significant wound about 1.8m from the base that Mr Roberts suggests is unlikely to close up totally. A second, although smaller, wound is present approximately 5m from the base. Mr Roberts suggests that a cavity exist at that place although he was unable to confirm that to be so. A second tree is also of concern, a Bloodwood that has been pruned but not in compliance with Australian Standard 4373.
[11] Mr Roberts states that tree removal on freehold land within the Fraser Coast is self-assessable under the planning scheme if a tree is deemed to be hazardous, a declared weed, or within 4m of a building footprint.
[12] In a number of submissions Mr Dobson defended his resistance to the tree works that his neighbour requested. He was prepared to allow the removal and pruning of trees provided Ms Deguara paid for the work. He states that she is at least partly responsible for the vegetation growth on his property as the placement of her garage has interfered with the natural runoff of rainfall. Furthermore, he engaged a tree felling and lopping service to assess the status of the trees to which Ms Deguara objects. He writes that these assessors confirmed that all trees were in good health and posed no danger to neighbouring properties. He provides no written report by that tree service as evidence for these claims.
[13] In coming to my decision, I have only one independent report on any of the claims made by Ms Deguara or Mr Dobson, namely, that of Mr Roberts. He writes that the two wounds on the Blue Gum and its proximity to Ms Deguara’s property poses a likely risk of future failure of the trunk, thereby resulting in major damage to person or property. He continues that mitigating this risk is not possible without the removal of the tree.
[14] As for the Bloodwood, Mr Roberts’s plan shows the tree as being 1.5m from the dividing fence and immediately adjacent to Ms Deguara’s shed (or garage). He asserts that it is of poor structure and has been inadequately pruned. Based upon a photograph in Mr Roberts’s report this tree appears to be of significant size. To obviate the risk of future injury to persons or damage to property, I am satisfied that it would be sensible to carry out further pruning as recommended.
[15] Therefore, I find that the potential danger to which Mr Roberts alerts is sufficient reason to remove the Blue Gum and further prune the Bloodwood.
[16] Ms Deguara seeks compensation of $643. She has, however, produced no evidence for such a claim. She asserts that she was required to pay $500 excess to her insurance company and there is the potential of $143 to repair the dividing fence. Without evidence to substantiate either of these claims, I find that there is no justification for them, and dismiss the claim for compensation.
[17] I am not convinced by any submission that Ms Deguara contributed to the failure of the Blue Gum or the growth of Bloodwood. Mr Dobson has been alerted to concerns about the Blue Gum, in particular, for more than 18 months and it is not unreasonable to expect that he would be aware that if one bough has fallen during a storm and caused damage, there is at least some likelihood, however small, of a recurrence.
[18] Therefore, the Tribunal orders the tree-keeper to engage an appropriately qualified AQF Level 3 arborist to remove and prune the trees to which reference is made herein. The tree-keeper is to bear the expense and the work is to be completed within two months.
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