Hartley v Body Corporate for terraces on the park
[2014] QCAT 624
•2 December 2014
| CITATION: | Hartley v Body Corporate for terraces on the park [2014] QCAT 624 |
| PARTIES: | Linda Hartley (Applicant) |
| v | |
| Body Corporate for terraces on the park CTS 23281 (Respondent) |
| APPLICATION NUMBER: | NDR162-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | Decision made 20 November 2014 Reasons 2 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant, Linda Hartley and the Respondent, Body Corporate for Terraces on the Park CTS 23281 must each pay $500.00 to the Tribunal towards the costs of a tree assessor to be appointed in respect to this application within 14 days of the date of this order. |
| CATCHWORDS: | TREE DISPUTE – question of how costs of tree assessor are to be shared Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 112 |
APPEARANCES:
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
Ms Hartley has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) to the Tribunal about a gum tree located on land owned by the Body Corporate for Terraces on the Park CTS 23281, which she alleges has caused damaged to her sewage pipes.
The Tribunal has procedures[1] to ensure that relevant expert evidence is available to assist the Tribunal to make its decisions about these applications. The “timely and effective resolution of disputes about trees is assisted by the tribunal and parties having access to independent expert evidence about the subject tree/s”[2]. The Tribunal will generally appoint an expert tree assessor to “avoid parties incurring excessive costs in engaging their own experts”[3]
[1]Practice Direction no 7 of 2013.
[2]Ibid, para [4].
[3]Ibid, para [5] (ss112 of the QCAT Act gives the Tribunal power to appoint an assessor and require a contribution to the assessor’s costs).
The Tribunal “may make an order requiring a party or all parties to pay all or part of the costs of the assessor up to a total of $1,000”[4]. The Tribunal
When considering the payment of the assessor’s costs will start from the proposition that the parties are to share equally the costs of the assessor. In its absolute discretion the Tribunal may make a different order, having regard to the contents of the application, any other submissions or document files in the proceeding and any other matter the Tribunal may consider relevant.[5]
[4]Ibid, para [6].
[5]Ibid, para [7].
The Tribunal considered Ms Hartley’s application and her response to the Tribunal’s directions of 28 October 2014 requesting submissions about the assessor’s costs.
The application alleges that roots from a gum tree on land owned by the Body Corporate have entered and damaged sewage pipes and this has caused the pipes to not function as the roots have blocked the pipes permanently. Ms Hartley stated in a letter to the body corporate requesting compensation for the blocked pipes that a plumbing company had applied a Hidet Camera, to discover two sections of the drain cracked and advised this is as of direct result from large amounts of roots from the gum tree, entering the pipe. A quote for the work required to repair the drain was included with the application. The quote for repair states “we then put our high def camera location system into the drain, to discover 2 cracked section with roots entering into your drain”.
Ms Hartley also stated that according to a council arborist “no digging to repair pipes can be done to roots. Needs to be checked by arborist before anything done – because digging could destabilise tree”.
Ms Hartley submitted that the Body Corporate should be totally responsible for the cost of the assessor on the basis that the damages sustained to her property were as a direct result of the roots from the gum tree situated on the body corporate land. A council arborist and a plumbing company established that the tree had caused serious damage, as the roots have infiltrated the lower drain on her property. She stated that she had contributed in no way to the damage that the tree had caused.
The Body Corporate in its submission to the Tribunal agreed to contribute up to the amount of $500.00 to the tree assessor’s costs.
While Ms Hartley has some material indicating that there are tree roots blocking her sewage system there are several other questions. Firstly, are the roots of the tree located on the Body Corporate land, which are blocking the pipes? Secondly, whether the roots caused the damage by breaking the pipes or due to the age of the pipes or the types of the pipes, for example, clay pipes may break or have points where tree roots can gain access; the roots have simply been able to infiltrate the pipes because of some characteristic of the pipes themselves?
The questions will be able to be answered by the Tribunal’s appointed assessor and it is fair that both parties then contribute equally to the cost of the assessor, as there is currently no preponderance of evidence, which would lead the Tribunal to find that the trees had caused the damage.
The order of the Tribunal is that the Applicant, Linda Hartley and the Respondent, Body Corporate for Terraces on the Park CTS 23281 must each pay $500.00 to the Tribunal towards the costs of a tree assessor to be appointed in respect to this application within 14 days of the date of this order.
0
0
1