Kieseker v Pamment
[2015] QCAT 380
•24 September 2015
| CITATION: | Kieseker v Pamment [2015] QCAT 380 |
| PARTIES: | Peter Kieseker (Applicant) |
| v | |
| Joey Pamment (Respondent) |
| APPLICATION NUMBER: | NDR121-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 24 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Joey Pamment must pay Peter Kieseker the amount of $690.00 within 14 days of today. 2. The registered owner of the lot at 14 Croydon Avenue CURRIMUNDI QLD 4551 (“the Tree-Keeper”) arrange for the complete removal of the Cheese Tree (Glochidion ferdinandi) the subject of the dispute (“the Works”): 3. The Works must be carried out: (a) By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture; and (b) Within 60 days of the date of this order | ||
| CATCHWORDS: | TREE DISPUTE – where damage to pipes – whether as a result of tree roots – whether compensation payable. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46,48, 49, 62 and 66 | ||
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
Mr Kieseker owns a property next door to that of Mr Pamment. He has had problems with his sewage pipes and has been required to have work performed on them by a plumber twice to remove a blockage. He alleges that the blockage was caused by roots from a Glochidion ferdinandi commonly known as a Cheese Tree situated on the property owned by Mr Pamment. Mr Kieseker has made an application[1] under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for compensation in respect of the cost of the work performed on his sewage pipes.
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 62.
The Tribunal has jurisdiction to hear applications where a neighbour’s[2] land is affected by a tree[3] on adjoining land owned by a tree keeper[4]. If the Tribunal is satisfied that a tree is affecting the neighbours land it may make an order in respect of the tree itself or amongst other things for compensation in respect of damage to the land or property on the neighbour’s land caused by the tree[5].
[2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 49.
[3]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46.
[4]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 48.
[5]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66.
Mr Kieseker has provided evidence of the work which was performed on the pipes. They were first unblocked on 25 December 2013 at a cost of $440.00. The next was on 30 May 2014 at a cost of $250.00. The first invoice referred to a sewer blockage and the second invoice noted clear badly blocked sewer drain from tree roots.
The Tribunal appointed an arborist to inspect the tree and report on the matters raised by Mr Kieseker. The arborist confirmed that the tree was wholly located within the property owned by Mr Pamment and that tree roots from that tree were encroaching in the rear courtyard of Mr Kieseker’s property resulting in the paved area becoming raised and buckled. Tree roots were also noted by the Arborist to be impacting on the underground services resulting in the drains becoming blocked on two separate occasions. The arborist stated that these tree roots, although not proven, are likely to be associated with the Glochidion ferdinandi located within Mr Pamment’s land. The Arborist recommended that the tree be removed.
Mr Pamment alleges that the pipes were old clay pipes and that the damage was caused by the age of the pipes and not as a result of the roots from his tree. He notes that he has replaced the pipes on his land due to their age. Mr Kieseker states that the pipes of the dwellings close to his in the complex in which he lives which are away from the tree have not needed to have work done on them.
The Tribunal is required to be satisfied on the balance of probabilities that the damage to Mr Kieseker’s pipes has been as a result of the roots from the tree on Mr Pamment’s land. The Tribunal confirms the arborist’s evidence that the tree roots from Mr Pamment’s tree have entered Mr Kieseker’s land, which is demonstrated by the damage to the pavers. The Tribunal accepts Mr Kieseker’s evidence that while his pipes have required work the pipes on other lots which were installed at the same time as his but which are not near the tree have not needed to have work done on them. Mr Pamment did not indicate how old the pipes were on his land and whether or not they were in proximity to his tree. So Mr Kieseker’s evidence is preferred over that of Mr Pamment in regard to the condition of the pipes. Mr Kieseker’s evidence shows that it is not likely the pipes themselves are at issue but tree roots and Mr Pamment’s tree roots are on Mr Kieseker’s land. The Tribunal is therefore satisfied that the damage to Mr Kieseker’s pipes is as a result of roots from Mr Pamment’s tree.
Mr Pamment has agreed to remove the tree though he has not advised the cost of this. This will ensure that there is no further damage from the tree roots to Mr Keisker’s land and is in accordance with the arborist’s recommendations. He states that as he is paying for the cost of removing the tree then Mr Kieseker should pay for the cost of the work to his pipes. Mr Kieseker has not done anything to contribute to the loss and has paid for the cost of the application and his share of the arborists costs. He has therefore also incurred expense in respect of this matter. Therefore Mr Pamment should bear the cost of unblocking the pipes.
The removal of the tree is in accordance with the arborist’s recommendation. The Tribunal should not remove a tree unless the issue relating to the tree cannot otherwise be satisfactorily resolved. Here the tree roots are adversely impacting and causing a trip hazard in a small courtyard as well the impact on the pipes. The pipes have required to be unblocked twice in a relatively short period. The Tribunal is satisfied that to prevent further issues with the pavers and the pipes that the tree should be removed.
The Tribunal orders that:
a) Mr Pamment pay to Mr Kieseker the amount of $690.00 within 14 days; and
b) The Cheese Tree (Glochidion ferdinandi) be removed.
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