Lowe v Brown

[2013] QCAT 292

CITATION: Lowe & Anor v Brown [2013] QCAT 292

PARTIES:	Christopher Harold Lowe Karyn Maree Lowe (Applicants)
v
Geoff Brown (Respondent)

APPLICATION NUMBER: NDR021-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: 5 June 2013

HEARD AT: Brisbane

DECISION OF: Professor Adrian Ashman, Member

DELIVERED ON: 5 June 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     Mr and Mrs Lowe will remove the single clump of Clumping Bamboo Oldhamii (Bambusa oldhamii) that has previously overhung the boundary of their property adjacent to Mr Brown’s.

2.     Mr and Mrs Lowe undertake to engage the services of their gardener to cut that clump of Bamboo back to near ground level to enable the root mass to be drilled and injected with a suitable poison.

3.     Mr Brown agrees to permit the gardener to attend his property for the sole purpose of cutting and/or poisoning the Bamboo until it is no longer alive, and the gardener may leave any cuttings from the Bamboo in a place agreed by Mr Brown.

4.     It is understood that the cutting/poisoning process may continue over a period of up to two years due to the growth habits of the Bamboo and that the agreed process outlined in [1] to [3] above will continue over that period.

5.     The process outline above will commence within the next three (3) weeks.

CATCHWORDS: NEIGHBOUR DISPUTE RESOLUTION - where applicant seeks the removal of a tree -  where a consent order is made for the process involved in removal of the tree subsequent to a compulsory conference.

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Christopher Lowe
Karyn Lowe

RESPONDENT: Geoff Brown

REASONS FOR DECISION

1. A clump of bamboo (Bambusa oldhamii) has been growing near to the boundary fence separating the Lowe and Brown properties for a number of years. It is a type of bamboo that grows up to 12 metres high and spreads its root base accordingly. Over several years, the Lowes have dealt with the sight and sounds of the tree, and with leaf fall. The Lowes and Mr Brown wrote an agreement in mid-2012 that would have led to the removal of the tree. In summary, the Lowes agreed to pay for the removal of the bamboo trunks and Mr Brown would undertake to poison the stump until the root ball had died off.

2. The Lowes paid for the cutting of the trunks but the bamboo continued to grow. Mr Brown has trimmed the bamboo to roughly head height since that time but has not undertaken the poisoning process.

3. The Lowes hold continuing concerns that the bamboo will again grow to a height that will affect the amenity of their property and possibly lead to property damage. They applied to the Tribunal in January 2013 for an order for the removal of the tree.

4. The Tribunal issued an order for a qualified arborist to carry out an inspection of the tree and report to the Tribunal. The report was received by the Tribunal on 2 April 2013.

5. Mr and Mrs Lowe and Mr Brown attended a directions hearing on today’s date and agreed to participate in a compulsory conference, which was held on the same day.

6. Issues relating to the matter were ventilated in the conference by both parties, having due consideration to the arborist’s report. The outcome of the compulsory conference was an agreement to a process that would lead to the removal of the bamboo over a period, possibly extending out to two years.

7. The Tribunal has issued an order in accordance with the agreement reached by Mr and Mrs Lowe and Mr Brown, as shown above.