Hannah v Baumann
[2013] QCAT 467
| CITATION: | Hannah & Ors v Baumann [2013] QCAT 467 |
| PARTIES: | Dennis Robert Hannah Katarzyna Kazmierczak Mariusz Pecak (Applicants) |
| V | |
| Martin Baumann (Respondents) |
| APPLICATION NUMBER: | NDR094-12 |
| MATTER TYPE: | Neighbourhood Dispute matter |
| HEARING DATE: | 18 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | W LeMass, Adjudicator |
| DELIVERED ON: | 6 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. With respect to the issue of damage to the wall and serious damage likely to be caused to the wall I order that all trees, shrubs, palms, vines and bamboo be removed within an area defined on one side by the face of the wall and on the other a line being 4 meters away from the wall as measured at 90 degrees to the wall and for the length of the respondents boundary with the applicants and as approximately indicated by line 1 on the attached sketches 1 & 2. Such area to be maintained free of vegetation other than grass in the future. 2. With respect to the interference with the use and enjoyment of the Applicant Hannah’s land, I order that the clump of Bamboo indicated at number 8 on the attached sketch 1 be removed and that no further planting take place of a species which would exceed the height of the fences at the rear of 36 and 38 Dargie Street, Everton Park. 3. The works stated in the above 2 paragraphs must be carried out within 60 days of the date of this decision. |
| CATCHWORDS: | Trees – views – Ghost Bamboo (Dendrocalumus Minor ”Amoenus”) and Alexander Palms (Archontophenix Alexandrae) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48, 46, 66(2) Thomsen v white [2012] QCAT 381 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Dennis Robert Hannah |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
This matter is a dispute between three adjoining neighbours, concerning many mixed variety trees situated on the Respondents, Mr Baumann’s land.
The two applicants, the owners of 36 and 38 Dargie Street, Everton Park have their rear boundaries adjoining Mr Baumann’s property at 12 Eldershaw Street, Everton Park.
At this approximate boundary exists a substantial concrete block retaining wall, estimated by the parties to be in parts 3 to 4 meters tall and some 50 meters long.
One of the applicants, Mr Hannah, a resident of over 30 years suggests that the wall was created by predecessors in title to the lower neighbours when the land was excavated for that subdivision to provide support to the existing higher neighbours.
A rolling dispute has existed for some years concerning the trees on Mr Baumann’s land. The trees are described as:
“The trees assessed are Ghost Bamboo (Dendrocalumus Minor ”Amoenus”) and Alexander Palms (Archontophenix Alexandrae): The trees have good vitality and show no structural defects. The trees have an average height of 10 to 12 meters (Alexander palms have a potential mature height of 40 meters”.[1]
[1] Tree Assessment Report 26/8/12 David Gunter at para 3.
Discussions have resulted in some removal of bamboo near the wall and reduction of canopy. Proceedings were commenced in this Tribunal in April 2012 seeking removal of trees most of which were planted during the last 2 years.
The Applicants case
The Retaining Wall
Firstly the applicants say that the retaining wall is at serious risk.
Mr Hanna states that in the last 6 months he has contributed the sum of $7,000.00 to the maintenance and repair of an adjoining wall, the total cost of which was $62,000.00 and this was one half the size of this wall. The issue of failing retaining walls is very important to him as he is acutely aware of the potential to affect him adversely financially.
The applicants have as part of this dispute obtained the report of an arborist and a structural engineer.[2]
[2] Tree Assessment Report 26/8/12 David Gunter; Engineering Structural Inspection Report 3/6/13 James Thomas.
Relevantly the arborist says at clause 2.2 “there are cracks in the retaining wall adjacent to the trees” and suggested the involvement of an engineer.
Mr Thomas the engineer says relevantly, at paragraph 3
“Due to the geometry of the sites, the neighbouring property’s trees can only damage the rear retaining wall if their roots grow underneath the walls footings and physically lift them. From our limited inspection it appears that the existing crack, as shown in photograph 4 and 5. was caused by tree roots, but from the tree that has already been cut down leaving the stump. The damage to the retaining wall side boundary return appears also due to the action of tree roots.
The following factors could cause future damage to the wall;
· The type of trees, their mature size and whether or not they have an invasive root system.
The closeness of the trees to the retaining wall.
We would recommend that trees with an invasive root system be planted away from the base of the wall. Alternatively, a concrete root barrier could be installed along the base of the wall. This is the more expensive solution and it would need to be constructed on the rear neighbours property.”[3]
[3] Engineering Structural Inspection Report 3/6/13 James Thomas.
The reference to “limited inspection” relates to Mr Baumann’s refusal of access. Photo 9 with the file shows the substantial crack through the existing blocks referred to in cl 2.2 of the Engineers report. There is no offer from the Respondent to construct the “concrete root barrier”.
The View
The applicants say that their pleasant mountain views are completely obscured by the neighbour’s trees and this will only get worse as the recent plantings mature.
The Respondents Position
The Tribunal has the benefit of only scant two page submissions from the Respondent and the trees effect on the wall is not addressed.
The respondent submits that prior to his renovation of the garden “there was a forest of gum trees” as is evident from the many stumps today. So the loss of view is only marginally worse. Further “Mr Hannah main entertainment area is on the other side” and, “we have created a beautiful garden through hard work and substantial financial input ….birds possums and hopefully for the neighbours to enjoy for many years to come.”[4]
[4] Respondent’s written submissions.
He says there is some leaf litter but that the applicants should just put up with this, and I think he is correct on this point.[5]
[5] Thomsen v White [2012] QCAT 381 where at para 11 and 12 Senior Member Stilgoe. discusses the approach of the New South Wales courts.
Since the commencement of proceedings Mr Baumann has planted some 18 new trees beside the wall within the last month and further large palms in close proximity to the structurally compromised “return” retaining wall.[6]
[6] Engineering Structural Inspection Report 3/6/13 James Thomas at para 2 cl 2.2.
The Law
The new Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Jurisdiction is confirmed by the arborist.[7] Mr Baumann is a Tree Keeper[8] and the applicants are neighbours.[9]
[7] Engineering Structural Inspection Report 3/6/13 James Thomas at para 2.1.
[8] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48.
[9] Ibid s 49.
The responsibilities of a tree keeper are set out in s 52 and include:
Ensuring that the tree does not cause—
2(b) serious damage to a person’s land or any property on a person’s land.
Orders may be made with respect to a tree if it affects a neighbours land.[10]
[10] Ibid s 66.
The applicants land is being affected because the tree is has caused, is causing or is likely within the next 12 months to cause—
(B)serious damage to the land or;
(C) substantial , ongoing and unreasonable interference…[11]
[11] Ibid s 46.
The Tribunal can make an order about a tree to remedy, restrain or prevent serious damage to the applicants land.
In Thomsen v White[12] Senior Member Stilgoe said at para [3]:
“… The tribunal can make an order about a tree to remedy, restrain or prevent serious damage to Mr Thomsen’s land or any property on his land or to remedy, restrain or prevent substantial ongoing and unreasonable interference with Mr Thomsen’s use and enjoyment of his land[13]. If I decided that the tree interfering with Mr Thomsen’s land in this way, I must decide what should be done about the tree, who should pay for any work to the tree and whether Mr Thomsen is entitled to compensation.”
[12] [2012] QCAT 381.
[13] Neighbourhood Disputes Resolution Act 2011 s66(2).
The Evidence
The Applicants land is affected by the trees on the Respondents property to the extent described by the experts, as follows:
Tree Assessment Report
2.2 Checks as to whether the applicant’s land is affected by the tree(s)?
§The Trees affect the applicants land as they obstruct a view of the surrounding hills and suburbs.
§There are cracks in the retaining wall adjacent to the trees.
Structural Inspection Report
2.2 Retaining Wall
During this inspection there was no access to the base of the wall or to the front face of the wall. This wall was the upper of 2 walls with shrubs and trees planted between them (photographs 2 and 3). A single near-vertical crack was found that extended from the top of the wall (photograph 2) to the base of the wall (photographs (sic) 4). There were no trees located close to the base of this crack however there was a stump nearby (photograph 5).
Findings
The Retaining Wall
Is the damage caused or likely to be caused serious damage.
I am satisfied that because of the evidence of the Applicant concerning the cost of replacement of the wall that it is of utmost importance that it be preserved and protected with all reasonable precaution. The arborist and engineer agree that such damage is likely particularly given the closeness of the planting to the wall, the existing failures attributed to tree growth and the anecdotal evidence presented by the Applicants concerning the destructive nature of plant roots.[14]
[14] See copy forums presented by Applicant, this is of little weight but it supports the expert evidence .
I also consider relevant the demonstrated propensity of Mr Baumann to continue or escalate an already vigorous planting regime during the currency of this matter and his failure to engage in any meaningful manner in the process, in the face of evidence that the resultant damage and cost of repair may be wholly to his account.
The View
Are the trees causing substantial ongoing and unreasonable interference with the Applicants use and enjoyment of their land.[15]
[15] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 66.
The owners of 38 Dargie Street, Kataryzna Kazmierczak and Mariusz Pecak are in a factually different circumstance to their neighbour Mr Hannah in number 36.
They are the successors in title and in this action to Major Fox, the former owner.
They cannot, despite, the action being on foot when they took possession[16] of the land, fall within the section and no allegation is made with respect to s 66 (3)(b)(i).
[16] Ibid s 66 3(b)(ii).
However Mr Hannah says his views of the mountains, which he formerly enjoyed, have been obstructed.
The Arborists report[17] says, “the trees affect the Applicants land as they obstruct a view of the surrounding hills” photo 1 shows this to be almost total. Mr Hannah says this is of little benefit to Mr Baumann and does not assist his privacy.
[17] Paragraph 1 of clause 2.2.
The arborist says,[18] “the trees provide little benefit to the broader community. They provide some shade and amenity for the tree keeper. They are not ecologically significant.”
[18] Clause 2.3.
The arborist suggests at photo 5 that the bamboo be lopped to a height to allow a view of surrounding hills.
Mr Hannah disagrees with this solution as he says the fast growing bamboo will very soon become a recurrent problem and the relationship with the neighbour is not one conducive to regular discussion.
Mr Baumann has adopted a full removal procedure with a second bamboo site which he cleared previously when it was overhanging at 38 Dargie Street.
It would expensive to continually lop to a certain height.
Mr Baumann says however that this view would have been obscured by “a forest” of gums previously on the property and refers to photos 5a and 6. These are of his house and show large trees but not the Hannah view, he was not available to speak to these photos. I am not satisfied that on the respondent’s evidence, Mr Hannah’s view was so obscured.
I find that during Mr Hannah’s occupation of the home he enjoyed the view of the distant hills.
ORDERS
With respect to the issue of damage to the wall and serious damage likely to be caused to the wall, I order that all trees shrubs palms vines and bamboo be removed within an area defined on one side by the face of the wall and on the other a line being 4 meters away from the wall as measured at 90 degrees to the wall and for the length of the respondents boundary with the applicants and as approximately indicated by line 1 on the attached sketches 1 & 2. Such area to be maintained free of vegetation other than grass in the future.
With respect to the interference with the use and enjoyment of the Applicant Hannah’s land, I order that the clump of Bamboo indicated at number 8 on the attached sketch 1 be removed and that no further planting take place of a species which would exceed the height of the fences at the rear of 36 and 38 Dargie Street, Everton Park.
The works stated in the above 2 paragraphs must be carried out within 60 days of the date of this decision.
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