Hauff v Barnes-Thygesen - [2013] QCAT 296

CITATION:

Hauff v Barnes-Thygesen [2013] QCAT 296

PARTIES:	Peter Hauff (Applicant)
v
Janet Grace Barnes-Thygesen (Respondent)

APPLICATION NUMBER:

NDR190-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

11 April 2013

HEARD AT:

Rockhampton

DECISION OF:

Gerald T Byrne, Member

DELIVERED ON:

5 June 2013

DELIVERED AT:

Rockhampton

ORDERS MADE:

1. Janet Grace Barnes-Thygesen will arrange for the removal of the boab tree, the subject of this dispute, at her own cost within 42 days of the date of this order.

2. The removal of the boab tree is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 2 or level 3. If no such person is available in the area then the tree will be removed by a person regarded as competent in tree removal with insurance to protect the Hauff property.

3. There is no order as to costs.

CATCHWORDS:

TREE DISPUTE – removal

Neighbourhood Disputes Resolution Act 2011 ss 42, 45, 46, 47, 48, 65, 73, 74 75

APPEARANCES and REPRESENTATION:

APPLICANT:

Peter Hauff

RESPONDENT:

Janet Grace Barnes-Thygesen and Mr Thygesen

REASONS FOR DECISION

The leaning boab tree caused safety concerns, a neighbourhood dispute and then died.
The Applicant, Mr Peter Hauff, has made an Application for a Tree Dispute seeking the removal of the boab tree by the Respondent, Mrs Janet Grace Barnes-Thygesen pursuant to the Neighbourhood Dispute Resolution Act 2011 (the Act).
It is no longer in dispute that the boab must be removed[1], as it is clearly not safe as a large, leaning, dead tree. I find it is likely to cause serious injury and substantial and ongoing interference with enjoyment of the land within the terms of the Act[2].
[1] Stated during the hearing by Mr Thygesen, and Mrs Barnes-Thygesen acquiesced with this.
[2] It was common ground the tree is dangerous and the evidence indicates it is likely to cause injury or damage within the meaning of s74 of the Act, and I find this creates fear in the Hauffs that amounts to unreasonable interference within the meaning of s75 of the Act. I considered all the matters in s73 of the Act in reaching this and other conclusions.
What is in dispute is who should pay for its removal.
I find QCAT has jurisdiction, as this was common ground on the evidence[3].
[3] Mrs Barnes-Thygesen owns a house at 3 Aqua St Blackall and on that land is a boab tree and Mr Hauff is her neighbour at 1 Aqua St. Under the Act, the boab is a tree within s45, on land described in sections 42(1), is situated on Mrs Barnes-Thygesen’s land within s47 and she is a tree keeper within s48. The tree was dangerous s46 (a)(ii) within and the requirements of Part V are met. I am satisfied the requirements of s65 are met.
I accepted evidence from Mr Hauff that he, and even more so his wife[4], were very worried about the possibility of the tree falling on the house and hitting an area where two of their children sleep. This, I find, clearly affected the enjoyment of their land.
[4] I accepted evidence from Mr Hauff that his wife wanted the children to sleep in the lounge/living room for safety.

Was the tree poisoned?

The Thygesens allege that the boab was poisoned by Mr Hauff. They gave evidence that on return from a 7-week holiday in April 2011, four small trees or shrubs in the general vicinity[5] of the boab were dead. They also provided photos of dead plants dated 18 April 2011[6]. I accept the evidence that the trees and scrubs died during their holiday.
[5] See ‘mud map’ attachment G to statement of Mrs Barnes-Thygesen dated 25 March 2013 exhibit 3.
[6] See attachment F to statement of Mrs Barnes-Thygesen dated 25 March 2013 exhibit 3.
The Thygesens also provided evidence that the grass around the trees was not dead and some photographic evidence to support this[7].
[7] Ibid.
From questions by me I established that the flow of water would be from the boab tree away from the three dead trees on the Thygesens’ land[8]. This may make it unlikely for ‘grassland pellets’ to poison the tree at the far corner of Thygesens’ property, but older poisons may be more likely to do this. I do not know what is below the surface and there may be a soil structure that would make such a poising likely, even with the tree uphill from the boab. No evidence was put forward by the Thygesens to assist me.
[8] I have highlighted this on the ‘mud map’ attachment G to statement of Mrs Barnes-Thygesen dated 25 March 1013 exhibit 3 and the parties agreed to the slope of about 25 degrees and the direction of water flow.
The Thygesens did not supply any direct evidence of actual poising. They asserted that ‘pellets’ had been used and these kill trees, but not the grass[9]. Mr Thygesen gave evidence that he contacted Biosecurity Queensland[10] and was advised it had been too long since the poisoning for the poison to still show in the tree. He did not produce any material to support this assertion. He did not give any evidence regarding the possibility of residual poison showing in the soil or of any soil testing to establish poisoning.
[9] I am aware of this form of tree control by ‘grassland pallets’ (and older poisons) and accepted the evidence that the trees dying, but not the grass, is consistent with this type of poisoning.
[10] I have taken this to refer to the Department of Agriculture Fisheries and Forestry, but if this is incorrect it is of no import to my decision.
Mr Hauff gave evidence that the area around the tree was excessively watered for some years and then the area was not watered at all during the Thygesens’ holiday and the trees and shrubs may have died from lack of water.
The Thygesens’ disputed this evidence. They stated that a friend watered the trees while they were on holiday, but did not bring any evidence from the friend to dispute Mr Hauff’s assertion that he did see a person water the Thygesens’ yard, but that person did not water near the dead shrubs at all. Questions by me established the Thygesens did not put this proposition to their friend.
Mr Hauff also drew attention to the Thygesens’ own evidence from Tom Whyte[11] not to prune the boab too heavily or it may severely stress the tree. He also drew attention to the large branch removed from the tree just before the Thygesens’ holiday and submitted that this heavy pruning may have caused the tree to die.
[11] See page bottom of page 1 and top of page 2 of the statement of Mrs Barnes-Thygesen dated 25 March 2013 exhibit 3
Mr Hauff strenuously denied he used any poison and gave evidence that suggested he is not familiar with the type of tree poisoning the Thygesens are alleging was used[12].
[12] Mr Hauff gave evidence in passing (as part of a robust exchange between the parties that often occurs in self-represented matters) of the method of poisoning with which he was familiar (cutting into the tree and poisoning). He also asked questions that suggested he did not understand how the tree could die without a mark and the grass not die with the tree if the tree had not been cut and poisoned.
I have knowledge of tree poisoning by the method suggested by the Thygesens[13]. No evidence was led to establish that the type of tree poisoning that kills the trees and not the grass will actually kill a boab tree. No evidence was led to establish that it is likely that the small trees or shrubs in this instance would die first and the boab would die much later. The small trees and shrubs were apparently healthy when the Thygesens went on holiday in 2011 and dead before they returned 7 weeks later. No evidence was lead to establish that the type of tree poisoning claimed by the Thygesens could work in such a short space of time. No evidence was led to explain how the small trees and shrubs uphill of the boab would die if the boab was ‘pelleted’.
[13] I have knowledge of the length of time the ‘tree poison’ from the method suggested by the Thygesens or similar methods would remain in the soil and it would be at least some years in the area of the boab. I am also aware that the type of tree poisoning alleged by the Thygesens does not kill all trees, that often large trees die from ‘pelleting’ before small trees and that stressed trees (e.g. from lack of water suggested by Mr Hauff) have reduced sap flow and die much more slowly.
Further, if the tree was poisoned by another method, it is likely there would be signs of cutting or drilling into the tree that could have been put before me and no such evidence was forthcoming from the Thygesens.
I have informed myself further by speaking with an expert in the area of land management, vegetation and regional ecosystems[14]. I was advised that it is possible that lack of water on the small trees and scrubs could cause them to die before the same lack of water caused the grass surrounding to die, particularly if they are used to a lot of water. Given this and the evidence of the removal of the large branch that the Thygesens conceded could stress the boab, there is an alternative explanation to the death of the trees other than poisoning.
[14] This was by a chance meeting with Stuart Cannon of Rural Property Design who I know to be an acknowledged expert in this field because I have seen the evidence of his expertise. He has no interest in this matter and was able to advise generally on possible scenarios and coincidently had first-hand experience of such a phenomenon on a large scale in Central Queensland a few years ago.
The Thygesens alleged Mr Hauff had agreed he poisoned the tree and that he indicated they had to prove it[15].
[15] See page 2 of the statement of Mrs Barnes-Thygesen dated 25 March 2013 exhibit 3 and also oral evidence.
Mr Hauff strenuously denied this and indicated he said ‘I’d like to know how you can prove that as I never touched your tree’ or words to that effect.
I make no finding about this exchange other than to note it was an emotive exchange at the time Mr Hauff served QCAT papers on the Thygesens by throwing them on the ground in front of Mr Thygesen and that, given the circumstances, it is likely that the parties have different interpretations of what was said.
I did put to the parties that someone else may have poisoned the tree. The Thygesens stated this could not be the case and Mr Hauff had a similar opinion.
This, coupled with the strenuous denials by Mr Hauff and the opportunity the Thygesens had to lead evidence of poisoning from soil tests, lead me to the decision that I cannot make a finding that the tree was poisoned.
Though it may be unusual for a Member to inform him or herself in the manner I have described in paragraph 17 above, I consider it to be appropriate and cost effective, as the alternate would be to inform myself by an expensive and time-consuming brief to a consultant, that in my opinion, given the expertise of Mr Cannon and his first-hand knowledge of similar events in Central Queensland, would have achieved the same result.
In any event, if I am wrong in my approach, I make a further finding that there was no direct or compelling evidence before me that established the boab tree was poisoned. The onus was on Mrs Barnes-Thygesen to produce such evidence or to establish that due to the efflux of time, such evidence cannot be produced. This could be by way of a soil test and/or tree test for poison; or evidence from an expert that it cannot be established that there was any poisoning due to the efflux of time, or evidence that poisoning was the only possible or probable cause of the tree’s demise. I do not accept a phone call to ‘Biosecurity’ about the tree with no details satisfies this onus.
Given these findings the responsibility for the tree is with Mrs Barnes-Thygesen. She has to remove the tree at her cost.

Orders

Janet Grace Barnes-Thygesen will arrange for the removal of the boab tree, the subject of this dispute, at her own cost within 42 days of the date of this order.
The removal of the boab tree is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 2 or level 3. If no such person is available in the Emerald area then the tree will be removed by a person regarded as competent in tree removal with insurance to protect the Hauff property.
There is no order as to costs.