Lee v Weeks
[2017] QCAT 308
•12 September 2017
CITATION: | Lee v Weeks [2017] QCAT 308 | |
PARTIES: | Graham Milson Lee and Barbara Lee | |
| v | ||
| Bruce Weeks and Susan Weeks | ||
APPLICATION NUMBER: | NDR128-16 | |
MATTER TYPE: | Other minor civil dispute matters | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Ryan | |
DELIVERED ON: | 12 September 2017 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | 1. | Bruce Weeks and Susan Weeks must pay to Graham Milson Lee and Barbara Lee the amount of $3,000.00 within 14 days of the date of this order. |
| 2. | (a) Bruce Weeks and Susan Weeks, the registered owner of the Iot at 95 Kilmorey Street, Carindale, QLD 4152 (“the Tree-Keepers”) arrange for an annual inspection by a qualified arborist, the first such inspection to take place 12 months from the date of this order. A second inspection is to take place 24 months from the date of this order. (b) In the event that regrowth is identified, the tree stump and regrowth is to be poisoned according to manufacturer’s instructions, and inspections by an arborist are to continue annually on two further occasions. The inspection must be carried out by an appropriately insured arborist with a minimum of Australian Qualifications Framework Level 3 in Arboriculture. | |
CATCHWORDS: | ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITATE PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where damage to paving – whether as a result of tree roots – whether compensation payable. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 45, s 46, s 48, s 49, s 52, s 62, s 66, s 68 | |
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 Lee and Mrs Lee are neighbours of Mr and Mrs Weeks. They share a boundary at the rear of their properties. The Lees are at 9 Ravenswood Court, Carindale, and the Weeks are at 95 Kilmorey Street, Carindale and are the owners of their respective properties.
The Lees have had problems with paving on their property adjacent to the boundary with Mr Weeks’ property. They allege that the root systems from two trees situated on Mr Weeks’ property have caused these issues. The Lees have made an application[1] under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) for orders that the trees be removed, that the roots be removed or pruned, that the respondent pay the costs of carrying out that work, and that the respondent pay compensation for the damage to their property. The Weeks on the other hand sought in their Response[2] that there be no orders requiring the removal or pruning of the trees or roots, that they not be required to pay the costs of so doing if such an order is made, that no compensation be payable, and that they be reimbursed for the costs they were required to contribute to the appointment of the tree assessor.
[1]The Act, s 62.
[2] Response, Part D.
The statutory framework – the Act
The objects of the Act[3] are to provide rules about each neighbour’s responsibilities for dividing fences and trees. This is to enable neighbours to resolve relevant issues without a dispute arising. A further object of the Act is to facilitate the resolution of such disputes.
[3] The Act, s 3.
A “tree”[4] is described as any woody perennial plant, any plant resembling a tree in form of size, a vine, or a plant described under the regulation to be a tree. A tree also includes a bare trunk, a stump rooted in the ground, and a dead tree.
[4] Ibid, s 45.
The parties informed the Tribunal that since the lodgement of the application and response, the Weeks had had the trees cut to stumps and poisoned. The Tribunal is satisfied that the stumps and roots referred to in the dispute were trees as provided for by the legislation.
Land is affected by a tree if, amongst other things, the tree has caused or is causing, or is likely to cause in the next 12 months serious injury to a person on the land, or serious damage to the land or property on the land, or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[5] In this matter, there was no evidence of any serious injury to a person on the land. The issue raised by the applicants was damage caused to their property allegedly by the tree roots.
[5] Ibid, s 46.
The Act also provides for who is a tree keeper.[6] The Weeks are the registered owners of the property and the Tribunal is satisfied that they are the tree keepers. A tree keeper is responsible for cutting and removing any branches of a tree or trees that overhang the neighbour’s land.[7] The evidence was that the Lees rather than the treekeepers have undertaken this at their own cost to date. The Tribunal has the discretion to make orders if it is satisfied that the neighbour has made reasonable efforts to reach an agreement with the tree keeper.[8]
[6] Ibid, s 48.
[7] Ibid, s 52.
[8] Ibid, s 65.
Mr and Mrs Lee said they had approached the Weeks on numerous occasions, and had been informed by the Weeks that it was not a convenient time, or that they did not consider there was a problem. Both parties noted there had been some communications where offers had been made and not accepted. The Tribunal is satisfied that efforts had been made to attempt to resolve the dispute before the QCAT application was lodged.
In determining the outcome of the application, the Tribunal considered the location of the trees in relation to the boundary of the land on which the tree is situated, and any premises, or structures affected by the location of the tree or trees.
The Tribunal has jurisdiction to hear applications where a neighbour’s[9] land is affected by a tree on adjoining land owned by a tree keeper. 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.
[9] Ibid, s 49.
Consideration
Since the Application and Response were filed, the Tribunal has made a number of directions which have essentially been complied with. A Senior Member of the Tribunal directed on 6 April 2017 that Mrs Weeks be added as a respondent. The respondents filed an application for Miscellaneous Matters on 6 January 2017 seeking that the Application be dismissed on the basis that the trees had been removed and the roots poisoned, and further, that the damage had been incurred because the Applicants had waited so long to take action and had not informed the Weeks of the issue earlier. The Respondents’ Application was dismissed by a Senior Member of the Tribunal on 13 January 2017.
As the trees have now been removed, the Applicants indicated they now seek only compensation for the costs of removing the tree roots which have intruded onto their land, and the costs associated with removing existing paving in the area damaged by the root intrusion and replacing it.
Whilst acknowledging in their response that the damage to the pavers resulted from the trees in question, the Weeks allege that the damage would not have occurred had they been notified earlier of the issue. They say that they were not; the Lees say they had drawn the Weeks attention to the issues repeatedly.
The Weeks note that they had offered to remove the trees much earlier but the Lees did not respond to their offer of 19 September 2016. They further note that at one point the Lees had offered to share the cost of the tree removal equally. The Lees indicated they received no response to that offer. Having met the full cost themselves, the Weeks opined that they should not also have to meet the repair costs.
The Tribunal is required to be satisfied on the balance of probabilities that the damage to the Lee’s paved area is a result of the roots from the trees on the Weeks land. The parties did not dispute that that was the case. The question was also dealt with by the arborist in his report.
The trees having been cut down, and the stumps poisoned, it remains for the tribunal to consider the following matters:
a)What were the arborist’s findings and recommendations and should they be followed?
b)What is the extent of the damage to the Lees property arising from the root intrusion?
c)What is the cost of repair/compensation for the damage?
d)Future management
The arborist’s findings
The arborist was appointed by the Tribunal to inspect the trees and report on the matters raised by the Lees. The parties shared the cost, contributing $500 each at the direction of the Tribunal. The arborist confirmed that the trees were wholly located within the property owned by the Weeks and that tree roots from the trees were encroaching the paved area under the clothesline on the Lees property, resulting in the paved area becoming raised and buckled. Tree roots were also noted by the arborist to be likely to impact on the footings of the dwelling in the future, and ultimately on the storm water drain running below the boundary of the two properties. The arborist did not identify the species or common name of the trees, but the Lees and the Weeks refer to them as a Golden Penda and a Lilly Pilly. Mr Lees named them as a Xanthostemon Chrysanthos (Golden Penda) and Syzyyium Levhmanni (sic – the correct spelling appears to be Syzygium Luehmannii) (Lilly Pilly).
At the point of the arborist’s inspection, the trees had been removed and the stumps remained. He noted that the Weeks had indicated they had been poisoned and he did not observe any regrowth. His main recommendations were that stump grinding would be preferable to further reduce the likelihood of regrowth. However, his opinion was that it would be a dangerous and unattainable process due to the location of the stumps on the Weeks’ property (very close to the boundary fence and in a raised bed retained by sleepers). He recommended that continued monitoring of the stumps was required. If future growth was identified, recutting of the stump would be required and reapplication of poison.
The findings of the arborist were not contested by the parties and the Tribunal accepts them. The Tribunal accepts that future management of the tree stumps for regrowth may form part of the orders it makes in this matter.
What is the extent of damage caused to the Lee’s property by the roots?
The arborist also expressed a view about the cause and extent of the damage the Lees had incurred as a result of the root intrusion. He noted that the root intrusion and migration was visible and directly identified as from the subject trees. The impact was on the paved area under the clothesline and the area servicing the clothesline. The roots had been exposed by the preliminary work removing pavers done by the Lees.
The arborist said that the work required removal and excavation of roots if a solid foundation was to be laid in preparation for repaving. In its current state it posed a significant risk and was not able to be used.
There was also an impact or potential impact on the boundary fence. The removal of the roots could lead to destabilization of the fence which had restabilised to adjust to the root intrusion. The Tribunal accepts the arborist’s evidence as to the extent of the impact of the roots on the Lee’s property.
Compensation
The Lees claim for an amount of $2,000 in their initial Application, but that appeared not to have a basis in an assessment of the work required.
The Lees have subsequently provided two quotations from Tim the Tradie (Timothy Thomas). One quote is for the supply of gravel and pavers as needed, together with labour, at a total cost of $770.00. The second quote from the same contractor on the same day is for stump grinding, supply of pavers, road base and crusher dust, fence posts and sleepers, and labour, and amounts to $5,060 including GST.
Mr Weeks and Mrs Weeks state that as they had paid for the cost of removing the trees, for which the Lees had originally offered to contribute 50%, the Lees should pay for the cost of the work to reinstate the pathway. They further say that it was the Lees delay over many years which led to the extent of damage occurring. If the Lees costs are to be taken into account, the Weeks say they are excessive, and have also supplied a quotation, from DJ Berry. The quote is for repaving of the pathway under the clothesline to the original state using original pavers, supply of bedding sand and 5 hours labour. The total is $600 with no GST included. Mr Weeks states in his statement of evidence that this quote includes the removal of the tree roots but it is not itemised in the quote. They further indicate that new pavers are not required and that the quote from the Lees appears to be an extensive landscaping project.
The Lees say they had attempted to canvas the matter with the Weeks unsuccessfully. The Lees have had to have recourse to lodging this application, including associated costs such as 50% of the arborist’s fee. They have therefore also incurred expense in respect of this matter.
There is no dispute that, and the Tribunal has found, the damage as set out in these reasons has been caused by the subject trees on the Week’s property, and is satisfied that compensation should be payable pursuant to s 66 and s 68 of the Act for the damage so caused to the Lee’s property.
The Tribunal is guided by the recommendations of the arborist. He indicated that stump grinding was too dangerous and the Tribunal does not therefore propose considering that cost.
Turning to the assessment of compensation, the Tribunal accepts that it should be relative to the repair and reinstatement requirements. The roots require excavation and complete removal, and that this has not been included in the two lowest quotations. The arborist noted there may be damage or destabilization to the fence once the roots are removed. However, there was no reference to damage to the fence in any of the Lee’s material. The quote they provided did not itemise the need for fence work, although it included an amount for fence posts and sleepers. In the absence of clear evidence on this the Tribunal does not propose including the amount for fencing in its orders.
The labour cost in the more extensive quote has not been itemised. However, if the laying of roadbase and the paving can be achieved at a labour cost of $400 by the same person, $3,000 seems to allow for about seven times that amount of labour. Without that having been itemised, the Tribunal struggled to accept that was an appropriate estimate.
Whilst the time allocated for labour for the work will be reduced to some extent, the Tribunal acknowledges that not using the stump grinder to remove the stumps and roots will entail more of the contractor’s time in completely excavating and removing the roots. The evidence is that they are extensive. The Tribunal concludes that an amount of $3,000 including GST is an appropriate amount to compensate the Lee’s for the damage.
Future management
With respect to future management of the problem, the Tribunal also proposes making an order that the Weeks arrange for annual inspection of the stumps by an arborist, and re-poisoning if required to ensure that there is no regrowth. This will ensure that there is no further damage from the tree roots to the Lees’ land and is in accordance with the arborist’s recommendations.
The Tribunal orders that:
a)The Weeks pay to the Lees the amount of $3,000 within 14 days; and
b)The stumps from the trees be monitored by a qualified arborist once annually for a period of two years, the cost to be met by the Weeks.
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