Longland v Picaro - [2021] QCAT 424

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:	Longland v Picaro [2021] QCAT 424
PARTIES:	MICHEAL KARL KLAIT AS ADMNISTRATOR OF THE ESTATE OF ALYS NANCE LONGLAND
(applicant)
V
NANCY SHARON PICARO
(respondent)
APPLICATION NO/S:	NDR164-18
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	25 November 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member McDonald
ORDERS:	1. Within 60 days of these orders, the Respondent appoints Retaining Wall Specialists to remove the Chinese Elm Tree in its entirety and to remove the Paperbark Tree stump. The Respondent shall be responsible for the cost of removal of the trees in accordance with this order. 2. That the Respondent shall remove any items obstructing the wall rectification or replacement works, including the water tank and garden shed on the Respondents property to allow for replacement works to the retaining wall. 3. The Applicant shall be solely responsible for the costs of removing and replacing the retaining wall. 4. That the Respondent must allow the Applicant’s contractors entry to the Respondent’s property for the purpose of undertaking works on the retaining wall. 5. The Applicant must allow the Respondent’s contractors entry to the Applicant’s property to contractors to enable tree removal works to occur.
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether tree’s roots caused serious damage to the neighbour’s land or property – whether compensation payable Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, s 45, s 46, s 52, s 47, s 65, s 66, s 73, s 74
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Two trees are the subject of this dispute, a Chinese Elm and a tree stump[1] that remains from a tree cut down in 1999.
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’), s 45((2)(b) tree includes a stump.
The Applicant submits that these two trees, which he argues are located on the Respondent’s land, have caused serious damage to the retaining wall located on the Applicant’s land. The Applicant contends that the trees have caused cracks in the wall including: vertical cracking near the tree stump where the wall rotated 40mm; as well as vertical crack near the Chinese Elm.[2] The Applicant asserts that his land is affected by the trees because it has caused serious damage to retaining wall.[3] He seeks orders pursuant to section 66 of the Act that Respondent removes both trees at her cost and pays the costs of rectification works.
[2]Exhibit 3.
[3]The Act, s 46(a)(ii)(B).
The Respondent argues that the Chinese Elm tree straddles the common boundary between the parties’ adjoining properties and argues that factors apart from the trees have contributed to the damage to the wall, such that she should not be liable for compensation for damage to the wall.
The submissions indicate that neither party is opposed to the removal of the Chinese Elm Tree. The dispute has been prolonged on the basis of who should bear the costs of this, whether the stump should also be removed and liability for damage to the retaining wall.
The Tribunal may make an order in relation to a tree affecting a neighbour’s land, where the parties have attempted to resolve their dispute in accordance with the Act, and the threshold requirements of section 59 are met.
I am satisfied that the Applicant neighbour has complied with the requirements of section 65 of the Act in attempting to resolve all aspects of the dispute.
Is the Land affected by a tree?
Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides:
Land is affected by a tree at a particular time if—
(a) any of the following applies—
(i) branches from the tree overhang the land;
(ii) the tree has caused, is causing, or is likely within the next 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 neighbour’s use and enjoyment of the land; and
(b) the land—
(i) adjoins the land on which the tree is situated;
The Applicant asserts that the Tree is located on the Respondent’s land and they are therefore the tree-keeper. The Respondent asserts that the tree is located on the shared boundary and refers to the survey plan which indicates it straddles the boundary.[4] The Applicant states that the Elm encroaches 3.5-6cms into the Applicant’s land, but photographic evidence submitted by the Applicant in 2002[5] shows the tree entirely on the Respondents land. I accept that the Respondent is the tree-keeper, where the base of the tree is mainly[6] on the Respondents free hold registered land.[7]
Is the land affected by the tree: Have the trees caused serious damage to the land or any property on the land?
[4]Exhibit 6.
[5]Exhibit 9.
[6]The Act, s 47.
[7]The Act, s 48.

The Chinese Elm

The Applicant’s arborist first identified that this tree’s stem had caused visible displacement of the adjacent boundary wall as it grew.[8] The independent assessor’s evidence is that the Chinese Elm is pushing the wall out of alignment. It reports that 3m of retaining wall is impacted by the tree. He concluded that it was likely to cause serious damage to land or property within the next 12 months and recommendations were made for its removal. He further stated that the brick retaining wall is beginning to fail in multiple locations and the removal of the tree may cause the wall to fall into the tree-keepers property.
This tree was linked with wall damage in all reports before the Tribunal including the Respondent’s own engineer and arboriculturalist reports.
[8]Exhibit 2.

The Stump

The Respondent’s arboricultural report notes that the stump has caused damage in the past to the wall, which is evident in the section of the wall adjacent to the stump.[9]
[9]Exhibit 8.
The independent assessor concluded that the stump had impacted on 2m of section of the wall “however it may also be possible that footings were never adequate to support this wall”. He concluded that the stump does not appear to impact on the Applicant’s retaining wall, however its structural root system may compromise the installation of any new retaining wall. The stump was noted to be poisoned some time ago and no tree growth and damage would have occurred thereafter. The stump would be required to be removed due to the root system.
I find that both trees have damaged the retaining wall. The damage must be of a “serious” nature to have met the threshold requirements for the Act.
Have the trees caused serious damage to the wall?
The trees are directly linked to displacement of the retaining wall. The structural integrity of the wall is affected by displacement. The evidence indicates that the damaged wall is a safety risk due to its instability.I accept that, while the evidence indicates the stump is not actively causing current damage to the wall the stability of any replacement wall may be affected by the root system of the tree stump.[10] Removal of the stump is recommended to ensure the stability of the replacement dividing wall.[11] Having regard to these considerations I find that the damage is of a serious nature, and the neighbours land is affected by both these trees.
[10]Exhibit 1, p 8-9
[11]Exhibit 1, p 9.
QCAT may make the orders it considers appropriate to remedy restrain or prevent serious injury to any person or serious damage to the land or property of the neighbour, where land is affected by a tree. The Tribunal may make an order to remove the trees but must give consideration to a factors identified in the Act.
Safety is the primary consideration in determining this matter.[12] The Act provides that removing the tree should be avoided. I am required to consider matters pursuant to
s 73 of the Act in determining this dispute, and may consider the provisions of s 74 of the Act:
[12]The Act, s 71.
Section 73(1) QCAT must consider the following matters—
(a)the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
(b)whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;
(c)whether the tree has any historical, cultural, social or scientific value;
(d)any contribution the tree makes to the local ecosystem and to biodiversity;
(e)any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
(f)any contribution the tree makes to public amenity;
(g)any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h)any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i)any risks associated with the tree in the event of a cyclone or other extreme weather event;
(j)the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;
(k)the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
The Chinese elm tree is on the boundary between the parties’ properties. Survey maps of the indicate the trees are located on the shared boundaries, and within the boundaries of the properties of both parties.[13] It is said to straddle the boundary”,[14] although the trunk is mainly on the Respondent’s land. There is no evidence that the Chinese Elm tree has any historical cultural or scientific value. It is identified as an environmental weed.[15] There are is no evidence before the Tribunal relating to elements contained at ss 73(d)-(h).
[13]Exhibit 4.
[14]Exhibit 5.
[15]Exhibit 1; Exhibit 2; Exhibit 5 p30.
There is substantial evidence that indicates that due to significant decay in the tree,[16] there is increased risk of damage or injury in the event of extreme weather.[17]
[16]Exhibit 5, p 8; Exhibit 2, Exhibit 1.
[17]Exhibit 1; Exhibit 2.
On balance, the considerations indicate that the Chinese Elm tree has limited community or environmental value and is a risk to safety and property. Having regard to the primacy of safety considerations, I make order that it be removed.
The stump has very limited value in terms of the section 73 considerations. It appears to be of no value to the Respondent. It is noted that its root system may affect the stability and therefore cause damage to any replacement wall and removal has been recommended for these safety considerations. I find that the evidence supports its removal.
I am asked to consider making orders for remedying the damage by way of compensation. I may also consider the following factors stated in s 74 where serious damage is alleged:
(a)anything other than the tree that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land; and
(b)any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.

There is evidence that there are other factors have contributed to the damage identified in the wall, and that the wall is failing in areas where the two trees have no impact.
The Respondent’s engineering report notes that in addition to the elm tree, there are “other plausible contributing factors”[18] to the distress in the wall. These are identified as:
(a)Insufficient design, being a single brick layer of unknown footing with a maximum height of 1m aged in excess of 40 years. “Our initial view of a single brick structure is that it would be inadequate to retain 1.0 m irrespective of vegetation the surrounds”. Their opinion was that the wall would be unlikely to meet current design recommendations.
Although not given permission to enter the Applicant’s property to assess in detail the adequacy of the footings, the report provided photographic evidence of insufficient concrete footing of 250mm deep, identifying undermining in the foundation.[19]
(b)Vegetation within the Applicant’s property;
(c)an underground sewer line in the vicinity of the Chinese elm “which, given the lack of substantial footing for the retaining wall could be contributing to movement of the wall, especially in areas where the wall is bridging underground service.”
(d)The age of the wall, being “at the end of its life”, where retaining structures have a design life of 60 years for “current design recommendation”.
[18]Exhibit 7.
[19]Exhibit 7.
The Applicant argues that the Respondent’s engineering report has been speculative and without adequate evidence to assess the footings no weight should be placed on it. They argue that it provides no evidence that any of these factors contributed but mere suggestions of possibilities.
It is noted that Applicant’s engineer’s report makes no reference to the adequacy of the foundations, but does recommend alternate foundations for any replacement wall, “340x350 engaged piers with pored piers in foundations.” These appears to be deeper than the existing foundations and provides some reference point as to the adequacy of the current structure’s foundations.
Multiple reports note structural weaknesses in other locations that are not clearly attributable to the trees along the wall.[20] Cracks are also identified at other locations away from the trees. Brick sections with translational movement and tilting along the wall was also identified.[21] “Several sections of the wall that were not in close proximity to the trees also appeared to be failing, and this did not appear to be associated with any trees or stumps from previously existing trees. It is clear that the trees are contributing to the failure of the wall in some locations however the trees are not the only cause of the failure of the retaining wall”.[22] Similar conclusions are in Arboricultural Trees Assessment of Heritage Tree services report.[23]
[20]Exhibit 1; Exhibit 7; Exhibit 8.
[21]Exhibit 7.
[22]Exhibit 7.
[23]Exhibit 8, p 11.
The independent assessor noted that there were in his opinion other contributing factors to the alleged tree affects, being that “the single brick retaining wall was not installed with adequate footings or re-enforcement to support the retention of the Applicant’s property. Most of this brick retaining wall is leaning into the tree-keepers property… While this design may have been acceptable back in the 70’s this style of retaining wall would no longer be recommended for installation as a retaining wall. It does appear that the brick retaining wall is no longer fit for purpose and requires replacement…”[24]
[24]Exhibit 1, p 17.
Noting that neither the tree assessor nor arboriculturalist are qualified to provide a professional opinion about the structural adequacy of the fence, they do offer a lay observation that is useful in identifying contributing factors to the damage beyond the input of the trees. Their input is not to be disregarded on this basis.
Based on the evidence before me, although the trees contributed to the damage to the wall, I find that the age and design of the wall is likely to be a factor in the damage to the wall.
The Respondent provides statements that there have been previous offers to remove the tree on several occasions over the years which have been rejected. Dr Tony Picaro, the Applicant’s husband, has however provided a signed statement dated 24 May 2021, albeit not sworn, of the conversation, he had with Frank Longland in about 1999 wherein Dr Picaro offered to remove the tree. He stated that Frank Longland rejected the offer because he considered the Chinese Elm tree was holding up the retaining wall. The Applicant submits that in the absence of a sworn affidavit from the Respondent’s husband, this should be regarded as hearsay. Noting that the Tribunal is not bound by the rules of evidence, there is however, some limited weight to this signed statement.
There are also a number of statements from the Respondent that indicate there were other offers made to remove the tree to resolve the dispute which were rejected by the Applicant/personal representative for Mrs Longland.
These are factors I have had regard to when considering making orders relevant to remedying the damage. Given the contribution of other factors and in particular the age and structural weakness evident in the wall, the Respondent should not carry the costs related to the remedying the wall. The wall is entirely on the land of the Applicant and costs for replacement of the same should be borne by the landowner. It is noted that the evidence is that the wall is unsafe and is at risk of failing into the Respondent’s property. It should be removed at the Applicant’s sole cost.
There is an indication that works may need to occur in a related or contemporaneous manner, where the removal of the trees may impact on the integrity of the wall, and on this basis, I accept the Respondent’s submission that the tree removalist should be nominated as per their submission to undertake the works, noting this is the least expensive of the quotes obtained.