Kirlew v Burns
[2024] QCAT 117
•21 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: KIRLEW V BURNS [2024] QCAT 117 PARTIES:
TIMOTHY KIRLEW (applicant)
v
WADE PETER BURNS
and
REBECCA LOUISE BURNS
(respondents)
APPLICATION NO/S:
NDR030-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
21 March 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Munasinghe
ORDERS:
1. Wade Peter Burns and Rebecca Louise Burns, the registered owners of the lot at 51 Amalfi Drive, Surfers Paradise, must arrange for the removal of the living Syagrus romanzoffiana (Cocos Palm) the subject of the dispute at their own cost.
2. The removal of the Syagrus romanzoffiana must include grinding and removal of its stump to prevent regrowth and must be undertaken by an appropriately qualified and insured arborist with a minimum qualification of Australian Qualifications Framework Level 3.
3. The removal of the Syagrus romanzoffiana must be carried out within 60 days of the date of this order.
4. Wade Peter Burns and Rebecca Louise Burns must pay Timothy Kirlew of 40 Brindisi Avenue, Surfers Paradise, costs in the amount of $1492 within 60 days of the date of this order.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant contends respondents’ trees ought to be removed to prevent serious injury and serious damage to property and remedy substantial, ongoing, and unreasonable interference with the use an enjoyment of his land
Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 46, s 66, s 73, s 75
REASONS FOR DECISION
The applicant lives in a single-story house on a residential plot of land. He owns the land.
The respondents own a house on adjoining land. They do not live on that land: rather, they engage a property agent to rent their house to tenants.
There is a dividing fence between the applicant’s land and the respondents’ land.
This dispute concerns two palm trees. One of those trees is a living palm tree situated on the respondents’ land (‘living palm’). It is located adjacent to the dividing fence and overhangs the applicant’s land by about half a metre.
The other tree is a dead palm which is situated on the respondents’ land approximately 1.7 meters from the dividing fence (‘dead palm’).
The applicant seeks removal of both palms because he contends that they drop dead fronds and a voluminous quantity of seeds onto his backyard, roof, deck and pool filtration system. I will refer to the fronds and seeds collectively as ‘debris’.
The applicants claims that the debris:
(a)poses a risk to his safety and to the safety of others that visit his land;
(b)blocks gutters and downpipes;
(c)clogs up his pool filtration system;
(d)damages his outdoor furniture;
(e)risks poisoning his dog if ingested;
(f)attracts bats and flying foxes which leave droppings on his property;
(g)causes an unpleasant odour when the seeds decompose;
(h)is unsightly;
(i)requires him to frequently clean his property, which he considers a chore.
The respondents were represented in the proceeding by Hustle Investments, the Real Estate Agency that manages their property. On 14 March 2022, the respondents’ property manager applied to the Tribunal to dismiss the proceeding and submitted:
(a)the ‘trees’ on the respondents’ land are professionally maintained;
(b)some trees have been removed while others require only trimming;
(c)regular gardening is currently scheduled;
(d)it cannot be proven that the debris belongs to the owners or tenants.
Tree Assessor’s Report
On 16 February 2023, tree assessor David Gunter conducted a site visit to inspect the living palm. He observed the living tree from the applicant’s land but was unable to access the respondents’ land to assess the base of the living tree because the respondents’ agent did not attend the inspection.
Mr Gunter subsequently prepared a written report on 28 February 2023. Relevantly, the report states the following about the living palm:
(a)the subject tree shows no sign of recent maintenance, with dead fronds, large seed pods and flower heads overhanging the applicant’s property. The applicant has an established covered outdoor seating area, and the failure of heavy seed pods especially is likely to cause damage in this area.
(b)while remedial canopy cleaning to remove fronds etc will minimise risks from the tree, the expense involved in the ongoing management of a recognised weed species is likely to exceed the cost of removal in a relatively short space of time.
(c)The tree is unlikely to be visible from the respondents’ house and therefore adds little to the site in terms of visual amenity.
(d)The tree is considered detrimental to local ecology.
Mr Gunter did not mention the dead palm in his report.
Relevant law
Under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (‘the Act’), the Tribunal is only permitted to make an order about a tree affecting the neighbour’s land if it considers such an order is appropriate to:
(a)prevent serious injury to any person; or
(b)to remedy, restrain or prevent:
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
If future serious injury, serious damage or interference is contended, it must be likely to occur within the next 12 months.[1]
[1]The Act, s 46(a)(ii).
Notably, s 71 of the Act provides that the primary consideration (for QCAT) is the safety of any person.
Is an order necessary to prevent serious injury to any person within 12 months?
I find that removal of the tree is necessary to prevent serious injury to the applicant and to others who may visit his land. The applicant has provided photographs to the Tribunal which show large palm fronds that have dislodged from the living tree and fallen onto his land. The applicant is an elderly man who has hip and orthopaedic problems. I accept the applicant’s contention that those medical issues increase the risk of the applicant becoming unbalanced and falling onto hard paving in his backyard if struck by a falling frond. There are also young children that visit the applicant’s land who could be injured if debris falls on them.
Is an order necessary to remedy, restrain or prevent serious damage to the neighbour’s land or property within 12 months?
Additionally, I consider that removal of the tree is necessary to prevent serious damage to the applicant’s land and property on it, because:
(a)photographs provided by the applicant show large palm fronds which have fallen on his external pool filtration and heating equipment. The fronds are large, they appear heavy, and I infer they could damage the equipment at the point of impact.
(b)I accept the applicant’s contention that debris clogs his pool filtration system which is likely to cause significant damage.
(c)I accept the tree assessor’s opinion that the failure of heavy seed pods is likely to cause damage to the applicant’s outdoor seating area.
Is an order necessary to remedy, restrain or prevent substantial, ongoing and unreasonable interference with use and enjoyment of the respondent’s land?
Photographs provided by the applicant appear to show large quantities of debris heaped on his roof, patio and the side of his house. Plainly, the debris interferes with the applicant’s enjoyment of his land because it requires frequent removal. It is also unsightly. I find that the interference that the debris causes to the applicant’s enjoyment of his land is substantial, ongoing and unreasonable. Further, I consider that interference can only be remedied by an order removing the living palm.
I have decided to order the removal of the living palm rather than require the respondent to perform ongoing maintenance on it on because of the assessor’s opinion that removal is more cost effective.
Section 73 of the Act requires the Tribunal to consider various matters. I consider the following most relevant to the present dispute:
(a)the tree is located close to the applicant’s house and has the potential to adversely impact that structure;
(b)the tree has no historical, cultural, social or scientific value;
(c)there is no evidence the tree positively contributes to the local ecosystem or biodiversity. In fact, it is described by the assessor as a weed species.
(d)the tree makes only a limited contribution to the amenity of the land on which it is situated: as the assessor points out, it is only partially visible to the respondent.
(e)the species of tree is a weed.
In making an order under s 66 to carry out work that involves destroying a tree, QCAT may consider, inter alia, any steps that have been taken by the tree keeper to prevent further injury or damage. Whilst the respondents claim that maintenance of tree occurred and is ongoing, photographs supplied by the applicant and the assessor’s observation about the presence of debris on the applicant’s land casts doubt on that assertion.
I have no confidence that the respondents will undertake any ongoing maintenance to the living tree to a standard sufficient to ameliorate the risk to the applicant and his property. Therefore, whilst I am mindful that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactory resolved, I consider that the Tribunal is left with no other choice in this case.
For completeness, I have considered and am satisfied of the requirements set out at s 65 of the Act.
The dead palm tree
There is limited evidence before the Tribunal about the impact that the dead palm tree has on the applicant’s property. That tree is not mentioned in the tree assessor’s report. Presumably, if the assessor was concerned about that palm, he would have said so in his report. The applicant’s material contains submissions and photographs about how the living palm impacts his land. However, there is a conspicuous absence of evidence about the dead palm. I am not satisfied that there is sufficient evidence about the dead palm to conclude that it is impacting the applicant’s land within the meaning of ss 46 and 66 of the Act. Accordingly, I make no orders about that tree.
The applicant filed an Application for miscellaneous matters on 2 November 2023 seeking, inter alia, to recover the full cost of engaging the tree assessor, noting that the respondents did not pay their half of the assessor’s fee. The remaining orders sought by the applicant are essentially orders for final relief. I will permit the applicant to claim the full cost of the tree assessor but otherwise dismiss the application for miscellaneous matters as I intend to make final orders substantially granting the relief that the applicant seeks.
The applicant filed a further Application for miscellaneous matters on 22 January 2024. That application requests resolution of the proceeding as detailed in the original application for a tree dispute dated 14 February 2022. The application for miscellaneous matters is essentially an application for final relief and should therefore be dismissed.
Costs
I consider that it is in the interests of justice for the respondents to pay the applicant the following costs of the proceeding:
(a)$358 for the QCAT filing fee;
(b)$34 for mail, coping and printing costs;
(c)$1100 for the cost of engaging the tree assessor.
Orders
For the reasons above, I propose to make the following orders:
1.Wade Peter Burns and Rebecca Louise Burns, the registered owners of the lot at 51 Amalfi Drive, Surfers Paradise must arrange for the removal of the living Syagrus romanzoffiana (Cocos Palm) the subject of the dispute at their own cost.
2.The removal of the Syagrus romanzoffiana must include grinding and removal of its stump to prevent regrowth and must be undertaken by an appropriately qualified and insured arborist with a minimum qualification of Australian Qualifications Framework Level 3.
3.The removal of the Syagrus romanzoffiana must be carried out within 60 days of the date of this order.
4.Wade Peter Burns and Rebecca Louise Burns must pay Timothy Kirlew of 40 Brindisi Avenue, Surfers Paradise, costs in the amount of $1492 within 60 days of the date of this order.
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