Fraser v Johnson - [2014] QCAT 265

CITATION:

Fraser v Johnson [2014] QCAT 265

PARTIES:	Sherryn Fraser (Applicant)
v
Roy Johnson (Respondent)

APPLICATION NUMBER:

NDR031-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

12 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

TREE DISPUTE - whether entitled to compensation – whether serious damage to land or property on land caused by tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 52, s 61, s 65, s 66, s 74

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

At the time of commencement of these proceedings Mr Johnson had a liquid amber tree on his property near the common boundary with Ms Fraser’s property. Ms Fraser applied for orders seeking removal of the liquid amber tree at Mr Johnson’s cost and for compensation for damage in the sum of $770.
Prior to the application being made Mr Johnson had informed Ms Fraser that he was making arrangements for the liquid amber tree to be removed.[1] The liquid amber tree has since been cut down.
[1]Note dated 14 December 2013, attachment 7 to Ms Fraser’s Statement dated 10 May 2014; Note dated 27 December 2013, attachment 10 to Ms Fraser’s Statement dated 10 May 2014.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides that the owner of land on which a tree is situated (the ‘tree-keeper’) is responsible for the proper care and maintenance of the tree and for ensuring that the tree doesn’t cause serious damage to land or property.[2]
[2]Section 52.
The Tribunal has power to determine a matter where it is alleged that land is “affected by a tree” at the date the application was lodged.[3] Section 46 of the Act relevantly provides that land is affected by a tree if the tree has caused serious damage to the land or any property on the land and the land adjoins the land on which the tree is situated.
[3]Section 61.
Section 66 of the Act gives broad powers to the Tribunal to make an order about a tree to remedy serious damage to the neighbour’s land or any property on the land.
Section 65 of the Act sets out certain requirements before the Tribunal is empowered to make an order. These include that the Tribunal must be satisfied that the neighbour made a reasonable effort to reach agreement with the tree-keeper.
There is evidence before the Tribunal that the parties took steps to attempt to resolve the dispute. I am satisfied that the pre-conditions in s 65 have been satisfied.
Division 4 of the Act sets out matters for consideration. Matters to be considered include whether anything other than the tree has contributed to the damage, any step taken by the tree-keeper or neighbour to prevent or rectify damage.[4]
[4]Section 74.
Ms Fraser is the applicant and bears the onus of establishing to the Tribunal’s satisfaction that she is entitled to an order to remedy serious damage to her land or property on her land.
Ms Fraser claims that the tree dropped limbs and branches onto her property causing damage to landscaping and fruit trees. Ms Fraser claims $770 in respect of garden concrete edge repairs.
Ms Fraser sought to broaden the dispute by filing an application for miscellaneous matters in respect of damage alleged to have been caused by a different tree, namely a gum tree which was partly situated on Mr Johnson’s land and partly on another person’s land and to broaden the scope of damage claimed to have been caused by the liquid amber tree, namely damage to a retaining wall and fence. That application was refused so the only matter for determination is in relation to the claim for $770.
Ms Fraser’s evidence is to the effect that:
a)a number of branches from the liquid amber tree have fallen over a period of time and that when they do they damage the concrete border by causing cracking.
b)during a storm on 23 November 2013 a branch from the liquid amber fell causing damage to landscaping.[5]
c)on 14 December 2013 a branch from the liquid amber fell causing damage to landscaping[6] and citrus trees without being affected by heavy rain or wind.
d)on or about 6 January 2014 a branch from the liquid amber fell causing damage to a citrus tree and cracks to more of the concrete edging.
e)she obtained a quote to repair the edging and provided a copy to Mr Johnson under cover of a letter dated 13 February 2014.
[5] It is not clear whether this is a reference to the concrete border but it appears to be.
[6]It is not clear whether this is a reference to the concrete border but it appears to be.
Mr Johnson appears to accept that falling limbs from the liquid amber tree may have contributed to some of the cracking of the garden edging but challenges whether all of the work proposed is required to rectify the damage caused by the falling liquid amber branches and whether cracked edging constitutes ‘serious damage’.[7]
[7]Section 52(2).
I am not satisfied that the liquid amber tree has caused serious damage to the concrete edging. The use of the word ‘serious’ in the Act means that not all damage will found a claim for compensation.
On the balance of probabilities the liquid amber tree has contributed to the cracking however there is no specific evidence of the nature and extent of the cracking caused by the falling of the liquid amber limbs to enable me to form a view that the damage caused by those events is ‘serious’. I am also not satisfied that the damage constitutes ‘substantial, ongoing and unreasonable interference because I am not satisfied that the nature of the interference is ‘substantial’.
Even if I was persuaded that the cracking is damage which is ‘serious’ the evidence before the Tribunal is that the edging has been in place for at least 12 years and Kwik Kerb’s website states that cracking can appear due to various causes including tree roots and subsidence.
The quote is reasonably general and does not clearly set out the extent of the work to be performed and their locations. Ms Fraser does not give specific evidence as to:
a)the extent of repairs required as a result of the falling liquid amber branches;
b)the proximity of the cracks to be repaired and the location of the liquid amber and its fallen branches.
There is no evidence that the only cause or the dominant cause of the damage to the edging is the fallen branches from the liquid amber tree.
On at least one occasion a limb fell during a storm.
Mr Johnson’s evidence is that in the first 13 years he lived at his property the liquid amber tree dropped 2 branches on Ms Fraser’s property and another 3 in late 2013 and early 2014. Ms Fraser evidence particularly refers to the 3 most recent events. Mr Johnson took steps to obtain quotes to have the tree removed when the frequency of the branches dropping increased and when a branch dropped in calm weather. The tree was removed on 6 March 2014 to prevent damage from continuing to occur.
In the circumstances Ms Fraser has not made out her claim for compensation for repair of the concrete edging.