Liu v Barry
[2013] QCAT 746
•17 April 2013
| CITATION: | Liu v Barry [2013] QCAT 746 |
| PARTIES: | Ruyu Liu (Applicant) |
| v | |
| Anthony Barry (Respondent) |
| APPLICATION NUMBER: | NDR142-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 17 April 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 17 April 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The registered owner of the lot at 165 Stanhill Drive, SURFERS PARADISE QLD 4217 (“the Tree-Keeper”) arrange to have the following works carried out on the tree the subject of the dispute (“the Initial Works”): (a) Prune the Lophostemon confertus (Queensland Brush Box) by cutting the overhanging limbs back to the nearest branch collar and deadwood removal of the upper canopy, specifically the dead crown of the southern leader. 2. The Tree-Keeper arrange ongoing monitoring on the Lophostemon confertus (Queensland Brush Box) for possible further decline every 12 months (“the Subsequent Works”). 3. The Initial Works and the Subsequent Works must be carried out: (a) In accordance with Australian Standard 4373-2007, Pruning of Amenity Trees; and (b) By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in arboriculture. 4. The Initial Works must be carried out within 60 days of the date of this order. |
| CATCHWORDS: | Tree dispute – where tree litter falling into neighbours property – whether causing substantial, ongoing and unreasonable interference – appropriate order Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Ruyu Liu |
| RESPONDENT: | Mr Anthony Barry |
REASONS FOR DECISION
The application relates to a tree dispute pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The tree in dispute is a Queensland Brush Box tree (Lophostemon confertus) that is between 10 -12 metres in height and located at the rear of the property at 165 Stanhill Drive, Chevron Island.
The tree is located on the Respondent, Mr Barry’s property. Mr Barry is the tree keeper as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The tree is located approximately two metres from the boundary of the property 167 Stanhill Drive, Chevron Island. The Applicant, Ms Liu lives at 167 Stanhill Drive. Both properties are on the waterfront. The tree is situated against the retaining wall on the river side of the parties’ properties.
Having considered section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 the Tribunal is satisfied that the Queensland Brush Box tree is to which chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 do apply.
The applicant, Ms Liu filed her application on the 30th of July 2012. Her application sought two orders: firstly, that the tree be removed and secondly, that the Respondent reimburses her for the cost of a tree report from B&B Tree Consultants of $132.00. At the hearing Ms Liu’s position changed and she sought orders that, firstly, the tree be substantially trimmed and, secondly, that she no longer wished to pursue the claim for reimbursement of the tree report fee.
Mr Barry’s position was that he was prepared to follow the recommendations of the tree arborist report which was prepared by Mr Anthony Cockram on the 12th of January 2013. The report provided independent evidence to the tribunal in relation to the tree issues in dispute. The report was prepared on the instructions by the tribunal. Ms Liu also provided a report to the tribunal. It was a report she instigated and was prepared by B&B Tree Consultants dated June 2012. Ms Liu paid for such report.
In this case Ms Liu seeks orders that the tree be substantially trimmed back to remove branches that are high in the tree canopy. Much evidence was given by both parties as to the extent of the tree trimming. Ms Liu gave evidence that many of the branches be removed that were close to her fence line and that dropped leaves onto her property. She claimed that the leaves fall onto her property and causes her stress. She alleges that to some extent the tree and leaves are blocking the sun from her property. Although these issues were raised, the main issue in this case was the leaves falling from the tree onto her land that caused her stress. Ms Liu said she was stressed due to the fact that the leaves have caused damage to her pool, the pool pump and equipment.
Mr Barry said he would trim some of the branches of his tree but only limited to the extent in the arborist’s report. He stated that if he conceded to Ms Liu’s request to trim the tree as she had requested that the tree would be substantially cut back, that the branches and limbs would be removed so that the tree would be approximately three metres from the fence line dividing the properties. Mr Barry claimed then that the tree would not be aesthetically pleasing, that he would loose the shade in his back yard that he enjoyed from the tree and that the pruning might damage the tree.
Is the tree causing substantial, ongoing and unreasonable interference to Ms Liu’s use and enjoyment of her land?
Leaf litter alone is not a justification to remove a neighbour’s tree under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The tree is not dangerous. It is on a lean but it was noted that even if the tree did fall, it would likely fall into the river and not onto Ms Liu’s land. There is no possible danger to Ms Liu’s property from the tree.
The report of the arborist, Mr Cockram, makes a finding that the tree is not causing substantial or ongoing and unreasonable interference with the use and enjoyment of Ms Liu’s land at 167 Stanhill Drive, Surfer’s Paradise.
In this case, it is clear that the evidence of the independent arborist’s is that the tree should not be removed but pruned. The pruning limited to cutting back the limbs overhanging Ms Liu’s property. He estimates that the branches overhang by approximately 1.3 metres. The pruning as requested by Ms Liu is not in accordance with Mr Cockram’s report.
I am persuaded by Mr Cockram’s report and the recommendations he has made. In the absence of any evidence that would contradict Mr Cockram’s evidence I am satisfied that it would be appropriate to follow the recommendations made by him. He notes in his report that the tree will require ongoing monitoring and removal of the overhanging limbs.
What are the appropriate Orders?
For the reasons outlined above the Tribunal is satisfied that the application in relation to the tree being removed has no merit and the trimming be limited to cutting back the limbs and branches to the fence line including deadwood removal of the upper canopy and ongoing monitoring of the tree for the next twelve months.
The orders that I propose would be as follows:
1. The registered owner of the lot at 165 Stanhill Drive, SURFERS PARADISE QLD 4217 (“the Tree-Keeper”) arrange to have the following works carried out on the tree the subject of the dispute (“the Initial Works”):
(a)Prune the Lophostemon confertus (Queensland Brush Box) by cutting the overhanging limbs back to the nearest branch collar and deadwood removal of the upper canopy, specifically the dead crown of the southern leader.
2. The Tree-Keeper arrange ongoing monitoring on the Lophostemon confertus (Queensland Brush Box) for possible further decline every 12 months (“the Subsequent Works”).
3. The Initial Works and the Subsequent Works must be carried out:
(a)In accordance with Australian Standard 4373-2007, Pruning of Amenity Trees; and
(b)By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in arboriculture.
4. The Initial Works must be carried out within 60 days of the date of this order.
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