Gonsalez v Sims and Hurst

[2013] QCAT 384

CITATION: Gonsalez v Sims & Hurst [2013] QCAT 384

PARTIES:	Mr Geronimo Gonsalez and Mrs Maria Gonsalez (Applicants)
V
Miss Sian Myfanwy Sims and Mr Lee Wayne Hurst (Respondents)

APPLICATION NUMBER: NDR091-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: 30 April 2013

HEARD AT: Brisbane

DECISION OF: Mr Jim Allen, Member

DELIVERED ON: 26 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed

CATCHWORDS:

TREE DISPUTE - alleged damage to dividing fence - whether land affected by a tree

Neighbourhood Disputes Resolution Act 2011 ss 46 and 66(2).

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr and Mrs Gonsalez were self-represented

RESPONDENT: Miss Sims and Mr Hurst were self-represented

REASONS FOR DECISION

1. The parties share a common boundary and Miss Sims and Mr Hurst have a tree going on the their property, a Cadaghi Gum tree which Mr and Mrs Gonsalez claim has caused damage to their fence. The Gonsalez’s are seeking that the tree be removed and compensation for the cost of replacing the fence in the amount of $10,670.00 inclusive of GST. The Tribunal has been asked to resolve the dispute under the Neighbourhood Disputes Resolution Act 2011[1] (NDR Act).

   [1]        Now known as the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

2. The Tribunal has jurisdiction to make orders[2] in regard to disputes between owners of adjoining land[3] where the land of the neighbour[4], Mr and Mrs Gonsalez is affected by a tree[5] on the tree-keeper’s[6], Miss Sims and Mr Hurst’s, land. There are some threshold issues before the Tribunal may make an order including that the neighbour has made a reasonable effort to reach agreement and has taken all reasonable steps to resolve the issue under any local government laws[7].

   [2]        Neighbourhood Disputes Resolution Act 2011 s 66.

   [3] Ibid s 46.

   [4] Ibid s 49.

   [5] Ibid s 46.

   [6] Ibid s 48.

   [7] Ibid s 65.

3. In this case there is a history of discussions and correspondence between the parties and the Tribunal is satisfied that a reasonable effort was made to resolve the dispute. There were no local government avenues available to resolve the dispute.

4. Mr and Mrs Gonsalez provided a report from an engineer, Mr John Riga, in support of their application. In his report dated 2 March 2012 Mr Riga stated that:-

   a)    Fine vertical cracks to the base of the fence have appeared in various locations, but more concentrated closer to the rear right hand corner of the property.

   b)    Such cracks are typically due to footing movement, which can occur when moisture changes occur to the wall foundation, and or, as a result of direct forces from the pressure of tree roots.

   c)    The rear property (at 14 Jinker Track, Albany Creek) contained many large native trees in relatively close proximity to the subject brick boundary fences affected by cracking.

   d)    In particular, it was noted that a tall (10-12m) tree identified as a Cadagi Gum tree (Eucalyptus Torelliana) was in close proximity (4-6 m) to the affected rear brick fences.

   e)    The Cadaghi gum can grow to 30m height (with a root system that can extend 2/3 of the mature tree height). It is native to the rainforests of North Queensland and is regarded as an environmental weed in South East Queensland.

   f)     It is very likely and quite possible that the crack damage to the brick fence is due to the physical presence of such roots and the moisture changing effects of the roots in the vicinity of the brick wall foundations.

   g)    In conclusion, based on the above analysis, it is considered that the damage to the rear boundary brick fence are very likely due to the proximity of the Cadaghi gum trees in the adjoining property.

5. The Tribunal appointed an arborist, Mr Anthony Cockram to perform an assessment of the tree and any alleged damage caused by it and to make recommendations in regard to the Tribunals jurisdiction, the appropriateness of the orders sought and to determine and specify appropriate actions to resolve the dispute. Mr Cockram inspected the properties on 28 July 2012 and prepared a report. The report relevantly states that:-

   a)    the Gonsalez’s property at 45 Frederick Street, Albany Creek has a common boundary with the property of Miss Sims and Mr Hurst at 14 Jinker Track, Albany Creek and that there is an ongoing dispute in regard to a Corymbia Torelliana-Cadaghi located at 14 Jinker Track 3.6 m from the common boundary which is alleged to have seriously damaged the brick property dividing fence at 45 Frederick Street.

   b)    The Cadaghi was described as being 15-20 years old and a juvenile specimen in very good health with an approximate height of 9m-10m. No structural faults or damage to the main stems or roots were observed however several laterals have been lopped inappropriately. It is stated that “whilst this established tree provides landscape amenity and shade to the tree keeper, it has no historic or cultural value and is considered an environmental weed species in south east Queensland.

   c)    The Cadaghi tree no longer overhangs the neighbours land due to recent heavy lopping.

   d)    In Mr Cockram's professional opinion the subject Corymbia torreliana – Cadaghi tree has not caused, and is not likely to cause, in the next 12 months any serious damage or consequences to the land or property on the land. There is no clear and visible link between the tree and the damage alleged to be caused by the tree. There is no high likelihood of failure or further serious consequences from the subject tree in the next 12 months

   e)    The report supplied by the Gonsalez’s engineer dated 12 March 2012 is discussed and it is noted that “However, my observations have found the larger cracks and greater concentration to be to the left hand centre of the brick wall well away from the corner of the property and almost 10 m from the subject tree. This is well outside the structural root zone of 2.45 m and tree protection zone of 4.5 m (or area of influence)”.

   f)     Mr Cockram inquired of Mr Gonsalez as to why the engineering report has not mentioned or addressed the obvious large crack and subsidence of this large section of fence/wall well away from the right hand corner and subject tree, he replied “I don’t know”.

   g)    It is also obvious at the time of inspection that the third panel brick wall section and footings from the right hand corner has subsided opening a crack in the brick work of approximately 4-5 cm wide at the top that has been previously repaired/filled with mortar. It is this subsidence that has caused a concertina effect along the length of connecting brick fence to the right hand corner of the yard. This subsidence is probably due to the lack of drainage at the back of the brick structure, Mr Gonsalez had confirmed he had constructed the fence and did not provide drainage, addressing the overland flow and seepage from the higher surrounding properties.

   h)    It was explained that the subject Corymbia torelliana -Cadaghi tree is a juvenile specimen and a weed species in south east Queensland and will easily double in size in its current urban environment, and can reach a height of greater than 25 m with a canopy spread of more than four times its existing size. This will create major ongoing maintenance over the next few years given its proximity to two neighbouring properties.

   i)     It was also explained that the lower lateral limbs and previous overhanging branches have been lopped and not pruned in accordance with Australian Standards AS4373-2007. This lopping will encourage vigorous regrowth and create another ongoing maintenance issue. While the tree keeper will now consider total removal of the subject tree due to its potential size, it is recommended that the previous lopping of the lower lateral limbs and previous overhanging branches be correctly pruned by an AQF Level 3 Qualified Arborist.

6. The Tribunal was requested by Mr and Mrs Gonsalez to allow a further engineers report in as evidence at the hearing. This report had not been filed or provided to Miss Sims and Mr Hurst. The tribunal determined that it would be prejudicial to the other party to allow in further evidence without them having had an opportunity to reply to it before the hearing and the report was not accepted.

7. At the hearing Mr Gonsalez stated that because the tree was so high its roots had to go somewhere. He confirmed that the fence had been approved by the council and was built by the house builder with him as bricklayer which is his trade and that it had footings. He also confirmed that the quote for the fence was for the replacement of the whole fence. Mr Gonsalez was concerned that if the tree collapsed it would fall into his yard.

8. Mr Hurst relied on Mr Cockram’s report that any damage to the fence had been caused due to the lack of drainage and noted that his property was higher than the Gonsalez properly and water flows down.

9. Miss Sims and Mr Hurst stated in their response that the damage in question here is old. This was not clarified at the hearing. Mr Riga’s report does not show that any evidence has been found of root damage to the fence only that the proximity of the tree is likely to have resulted in root damage. The report from Mr Cockram was accompanied by photos which clearly show that although there is some fine cracking in the fence near where the tree is located the major damage to the fence is not in the vicinity of the tree.

10. The Tribunal may make orders it considers appropriate in relation to a tree affecting the neighbours land[8]. Mr Cockram’s report states that there are no overhanging branches and that the only issue with the fence near where the tree could have an effect is fine cracking and the major damage to the fence is outside of the area of the trees influence. Mr Gonsalez confirmed at the hearing that the quote he has obtained is for replacement of the whole fence. The highest that his engineer could say is that the damage was very likely and quite possibly due to the roots. Mr Cockram has shown that the only damage near where the tree is located is very fine cracking in the fence. The Tribunal does not consider this serious damage and Mr Cockram has stated that serious damage is not likely within 12 months which is accepted by the Tribunal.

    [8] Ibid ss 66(2), 46.

11. The Tribunal also accepts that the fence was built without having any drainage placed behind it and Mr Riga had noted in his report that the damage could be as a result of moisture build up. Which as observed by Mr Cockram would result from overland flow and seepage from the higher surrounding properties. Therefore it cannot be said that the damage which is there is as a direct result of the tree.

12. There are no branches overhanging Mr and Mrs Gonsalez’s property and there is no current serious damage to persons or property or a serious likelihood of such damage within 12 months according to Mr Cockram. Mr Gonsalez’s concern about the tree falling are appreciated by the Tribunal but there is no evidence of this being likely to occur within 12 months. The Tribunal is then not satisfied that the land of Mr and Mrs Gonsalez is affected by the tree and the application is dismissed.

13. Miss Sims and Mr Hurst have indicated that they are prepared to remove the tree on the basis that the parties each bear half the cost and that there be no compensation. Due regard should be given to Mr Cockram’s observations about the future of the tree in terms of its growth. Now that the compensation issue has been determined the parties may be able to come to their own agreement. The Tribunal though cannot make any order unless the requirements of the NDR Act are met.