Hempel v Parer - [2012] QCAT 465

CITATION:

Hempel v Parer [2012] QCAT 465

PARTIES:	Judith Anne Hempel (Applicant)
v
Warwick Parer (Respondent)

APPLICATION NUMBER:

NDR014-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Jim Allen, Member

DELIVERED ON:

18 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

TREE DISPUTE – where alleged interference of tree roots with diving fence and retaining wall –whether tree causing serious damage – vegetation protection order

Neighbourhood Disputes Resolution Act 2011, Chapter 3

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 (QCAT Act).

REASONS FOR DECISION

Introduction

Mrs Hempel owns a house which shares a common boundary with that of Mr Parer’s; she is a neighbour for the purposes of the Act[1]. A tallowwood tree is positioned at the corner boundary between the properties on the land owned by Mr Parer. The tree is 20 metres high and is in close proximity to Mrs Hempel’s house, a dividing fence and retaining wall on her property.
[1] Section 49 of the Neighbourhood Disputes Resolution Act 2011.
Mrs Hempel has been trying to have Mr Parer, as the tree keeper[2], agree to remove the tree since 2010. Her grounds for requesting that the tree be removed are that the dividing fence is being pushed off its alignment by the growth of the tree. Further, that the roots of the tree are in her property and likely to damage her retaining wall and the proximity of the tree to her house constitutes a threat to both her safety and that of her property. There was also a previous example of damage on a house from a tree on Mr Parer’s property and the impending cyclone season and current forecasts, as at the date of the application 2 December 2011, add to her concerns.
[2] Section 48 of the Neighbourhood Disputes Resolution Act 2011.
The Brisbane City Council appeared in the application as the carrying out of work on the tree requires the consent or authorisation of the council as the tree is protected by the Council’s Natural Assets Local Law 2003[3].
[3] Section 64 of the Neighbourhood Disputes Resolution Act 2011.

The Legislative framework

The current application has been made under the Neighbourhood Disputes Resolution Act 2011 and requests the Tribunal to order that the tree be removed and to remove or prune the roots of the tree. Ancillary orders are requested for the restoration of the fence to its original condition and for Mrs Hempel to be compensated for the application fee.
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application, land is affected by the tree[4]. Mrs Hempel, as the neighbour who owns the alleged affected land, may apply to the Tribunal for an order under section 66 of the Act[5].
[4] Section 61 of the Neighbourhood Disputes Resolution Act 2011.
[5] Section 62 of the Neighbourhood Disputes Resolution Act 2011.
Land is affected by a tree if any of the following apply:
i)Branches from the tree overhang the land;
ii)The tree has caused, is causing, or is likely within 12 months to cause:
(a)   Serious injury to a person on the land; or
(b)   Serious damage to the land or any property on the land; or
(c)   Substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land.[6]
[6] Section 46 of the Neighbourhood Disputes Resolution Act 2011.
The Tribunal may, if it is satisfied that a tree is affecting a neighbour’s land, make an order under section 66 to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land; or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
The Tribunal may make an order under section 66 requiring Mr Parer as the tree-keeper, or Mrs Hempel as the neighbour, to carry out work on the tree on a particular occasion or on an ongoing basis. This can include, amongst other things, that a tree be removed or that requires ongoing maintenance work on the tree during a particular season every year, or that requires a tree be maintained at a particular height, width or shape.
Before making an order the Tribunal must be satisfied that the neighbour has made a reasonable effort to reach agreement with the tree-keeper and has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process[7].
[7] Section 65 of the Neighbourhood Disputes Resolution Act 2011.
The primary consideration for the Tribunal is the safety of any person[8]. A tree should not be removed or destroyed though unless the issue relating to the tree can not be satisfactorily resolved[9]. The Tribunal must also consider the matters set out in section 73 of the Act before making an order under section 66. This includes such things as the location of the tree in relation to boundaries, whether carrying out work on the tree would require any consent or authorisation under another Act, any contribution the tree makes to the local ecosystem and to biodiversity, any risks associated with the tree in the event of a cyclone or other extreme weather event, the type of tree including whether it is a pest or weed.
[8] Section 71 of the Neighbourhood Disputes Resolution Act 2011.
[9] Section 72 of the Neighbourhood Disputes Resolution Act 2011.
Where a neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, the Tribunal may consider anything other than the tree that has contributed to the injury or damage or likelihood of same including any act or omission of the neighbour and the impact of any tree situated on the neighbour’s land, and any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury[10].
[10] Section 74(1) of the Neighbourhood Disputes Resolution Act 2011.
Where the Tribunal contemplates the making of an order to carry out work that involves destroying a tree, it may consider how long the neighbour has known of the injury or damage, any steps taken by the tree-keeper or neighbour to prevent further injury and damage and anything other than the tree that may have caused or contributed to some or all of the injury or damage[11].
[11] Section 74(2) of the Neighbourhood Disputes Resolution Act 2011.
If the Tribunal is satisfied that the application is made because of a genuine dispute it may make an order for a person to carry out work even though consent is withheld by a local government or a tree-keeper under a vegetation protection order, or a local law requires a consent be obtained or the work is otherwise restricted or prohibited[12].
[12] Section 67 of the Neighbourhood Disputes Resolution Act 2011.

The evidence and some Findings

Mrs Hempel stated in her application that she had complained about the tree pushing the fence over in 2010 but not in writing and there was no action taken. That in 2011 she wrote to say she wanted the tree removed and the letter in response said no action would be taken. A further letter outlining her concerns was sent with no response. For his part Mr Parer provided the Tribunal with copies of the correspondence he has received from Mrs Hempel and his replies which show that he has replied to the two letters he has received from Mrs Hempel. The Tribunal is satisfied on the basis of the course of correspondence between the parties that a reasonable effort has been made to reach agreement as required under the Act.
Mrs Hempel stated that the tree had not caused serious harm to any person nor had it caused serious damage to her land or property on her land but that it was likely to do all three within 12 months. That none of the matters set out in section 74(1) of the Act apply in this case. Mrs Hempel stated that she knew about the damage when she purchased the land and that the previous owner had discussed it with Mr Parer which resulted in a tree being removed.
Mrs Hempel’s application can be interpreted to say that the tree did not raise any of the matters set out under section 73 of the Act for the Tribunal’s consideration.
Photos of the tree are attached to the application which shows that the tree is large and is growing next to the dividing fence which is close to the roof of Mrs Hempel’s house.
In regard to the retaining wall Mrs Hempel stated that the roots have already grown to within 40 cm of the wall when measured on ground level and that she believes the roots threaten the stability of the wall. She stated that the tree continues to grow half a metre from her roof and the canopy of the tree is 5-6 metres over her fence and dictates how she can use her property. The clothesline is always in shade and the path from the laundry is littered and slippery when wet.
Mr Parer confirmed in his material that a vegetation protection order had been placed over his land on 10 December 2003 because of the proliferation of trees on the property. He stated that “we have always maintained and cared for these trees, employing registered arborists and tree experts to trim and thin the trees with council approval every 3-5 years.” He noted that about 10 years ago a mini tornado came from the west and had toppled two trees in his back garden, one of which did considerable damage to a neighbour’s house on the east side of his property.
The tree in question is said by Mr Parer to never have been subject to a complaint by previous owners and when requested he had trimmed some branches to help one previous owner sell the property.
Mr Parer provided a report from his arborist which was prepared following a site visit on 24 November 2011 which stated that, “the property is well maintained. Canopies of a number of mature trees contain deadwood which is typical of their species”. With a recommendation that “crown clean canopies to remove deadwood > 50 mm”.
The Tribunal appointed an arborist as an assessor to carry out an inspection of the tree and provide a report to the Tribunal. The arborist attended at the property on 6 February 2012 and observed both the tree on Mr Parer’s land and the adjacent area on Mrs Hempel’s land. The inspection was attended by Mr Hempel and Mr and Mrs Parer, although Mr Parer did not attend that part of the inspection on Mrs Hempel’s land, a representative of the Council also attended. The arborist notes the issues addressed in the report as “Corymbia intermedia tree on boundary line and the effect it is having upon the applicant’s retaining wall”.
He describes the tree as “Mature Corymbia intermedia tree is a large healthy specimen with no historical problems. The tree is situated ½ a metre inside the tree-keepers property”. He then gives a history of the site, “during development of the site, the blocks being sub-divided off the original block on western side were also cut to level the ground and a 1.5 metre high treated timber retaining wall was erected. The tree was also given a further consideration to maintain the trees structural/critical root zone and the retaining wall was deviated around the tree”. He states that, “16 years has elapsed since the retaining wall installation, Mrs Hempel is concerned the tree will threaten the stability of the retaining wall. A site visit has confirmed that there is some incremental movement to the retaining wall. The tree in every other respect is perfectly healthy. The tree is in extremely close proximity to Mrs Hempel’s home”.
The arborist’s recommendations note that, “both parties agreed that the tree should be removed at the tree-keeper’s expense. Council are to be contacted as they have a protection order in place. That this will require consultation before removal and that council may require a structural engineer’s report to verify the ability of the retaining wall to withstand pressure of an expanding root ball from the tree and give a life expectancy of the wall with or without the tree present”.
The arborist noted in regard to whether the applicant’s land is affected by the tree that:
a)There are branches of the tree overhanging the land by more than .5 m;
b)There are no obvious arborological defects in the tree;
c)There is no evidence of previous tree part failures;
d)There is evidence of minor surgery to reduce low overhanging limbs.
In regard to serious damage to the land or property on the land, the arborist stated, “I am not qualified to ascertain the stress and potential lifespan of the retaining wall. This would require the opinion of a structural engineer. Photo enclosed on page 9. Photographically it is difficult to show the variation in the retaining wall. Visually the retaining wall has undergone some incremental movement over the years as the root ball has increased in size. This movement does seem limited to the area of the retaining wall that is closest to the tree. There appears to be a consistent construction method where the retaining wall has a negative angle of 4-5 degrees leaning against the ground it is retaining. The wall around the tree is vertical and this may be incremental movement from the root ball pushing the timber retaining wall”.
In regard to the likelihood of damage within the next 12 months the arborist has stated that, “he would defer to a structural engineer. In relation to the crown and the tree above ground there is an extremely low likelihood of damage”.
As to affect the tree is having on Mrs Hempel’s use of the land the arborist stated, “there is a clothes line and a 2x2 metre bin bay directly under the tree. There is a walking path that connects to the laundry door to this side gate, Tree is currently not dropping sap and loss of enjoyment because of the tree was not mentioned during the interview”. The Tribunal notes that this was an issue specifically raised by Mrs Hempel which has not been confirmed by the arborist and therefore there is no supporting evidence of the tree interfering with Mrs Hempel’s enjoyment of the land.
There were no comments by the arborist in regard to interference by the tree in respect of such things as obstruction of sunlight or views.
The arborist stated that nothing other than the tree had contributed to the alleged tree affects in dispute and there were no other considerations which required comment. The Tribunal is satisfied on the basis of the arborist’s report that there is nothing else which has contributed to damage, if any, to the retaining wall in accordance with section 74 of the Act.
Mr Parer submitted to the Tribunal that he objected to the arborist’s conclusions and recommendations as at no stage had he agreed that the tree should be removed at his expense. That Mrs Hempel had changed her complaint from the tree being dangerous, to the fence and then the retaining wall. That the tree had been there when Mrs Hempel bought the house and if there was a good reason to remove it then Mrs Hempel should pay.
The Tribunal notes that its jurisdiction requires that there be land affected by a tree before it can exercise its discretion. An agreement between the parties could not result in a consent order. Any agreement to remove the tree would have been subject to Council approval.
Mrs Hempel advised the Tribunal that she would not be obtaining a structural engineer’s report due to its cost.
The Brisbane City Council made submissions in response to the arborist’s report. The submissions note that:
a)The tree is protected by Council’s Natural Assets Local Law 2003 as the site has a Vegetation Protection Order category Group of Trees. The tree is said to meet the objects of the local law by protection of the biodiversity values of the city and contributes to the landscape character of the city.
b)No specific details were noted in the report about the tree’s impact on the boundary fence. From observations made during the site inspection on 12 February 2012 Council does not consider that the impact of the tree on the boundary fence is likely to cause any serious damage to the fence within 12 months.
c)The report identifies that there may be future damage to the retaining wall as evidence onsite suggests that there may be incremental movement of the wall adjacent to the tree. Council concurs that further information from an engineer’s report would be required to confirm if this is the case. Council is not of the opinion that there will be serious damage to the retaining wall in the next 12 months.
d)The safety issue is the key issue to be addressed in this case. The report discussion assesses the tree as “a large healthy specimen with no historical problems”. The assessment confirms the safety issue with the tree in that there is no high likelihood and serious consequence of defective parts, Council concurs with these findings of the report.
e)The report’s conclusion and recommendations has only considered the agreement between the parties that the tree be removed. The retention of the tree has not been considered. Council does not agree with Mrs Hempel and Mr Parer that the tree should be removed.
f)Council does not agree with the limited examination of alternative management options provided by the report. The report has not considered alternative options on hazard reduction management of the tree. This is seen as a more reasonable management option to explore.
g)Council would not be supportive of an order to remove the tree as the report has not identified any safety issues associated with the tree and does not provide any evidence that the tree is likely to cause serious damage to land or property within the next 12 months.
h)Council firmly believes that any safety issue or potential damage issues can be resolved by regular maintenance inspections of the tree by a suitably qualified and experienced arborist. Any issues identified can be managed by Council through an application to carry out work on protected vegetation.

Discussion

The Tribunal understands Mrs Hempel’s concern about a large tree which is situated close to her house and the potential damage that would be caused if the tree were to fall. It is clear though from the arborist’s report that the tree is healthy and it does not currently present any risk of causing damage to Mrs Hempel’s house or land.
It is acknowledged by the arborist and Council that the roots of the tree growing near the retaining wall may have caused some incremental movement in the wall. This is not seen as serious damage by those parties. It is stated that a structural engineer’s report would be required to confirm whether there was the likelihood of any damage within the next 12 months. The Council, through agreeing that there is a possibility of future damage, did not consider that there would be serious damage within 12 months.
There was no evidence of damage to the dividing fence and it appears from what the arborist said that the dividing fence was built around the tree which gives the appearance that the fence was being pushed off its alignment as alleged by Mrs Hempel.
The Tribunal’s jurisdiction is enlivened where land is affected by a tree. The Tribunal is not satisfied based on the evidence before it that Mrs Hempel’s land is affected by the tree. Therefore no order can be made under section 66 of the Act in regard to the tree
The Tribunal notes the recommendation by Council in regard to regular maintenance inspections and acknowledges the evidence provided by Mr Parer that he does have an appropriately qualified arborist inspect the trees on his property on a regular basis and have necessary maintenance wok performed in accordance with his responsibilities as a tree-keeper[13].
[13] Section 52 of the Neighbourhood Disputes Resolution Act 2011.

The Tribunal hopes that Mr Parer will ensure that the issues which have been raised in this application in regard to the possibility of damage to Mrs Hempel’s retaining wall are always considered during any future inspections of the trees so that if there is a risk of serious damage to that wall, any necessary action can be taken without having to resort to the Tribunal.