McCarthy v Engler - [2022] QCAT 249

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McCarthy & Anor v Engler [2022] QCAT 249

PARTIES:

PATRICK MCCARTHY
LINDA MCARTHY

(applicant)

v

ALVIN JOHN ENGLER

(respondent)

APPLICATION NO/S:

NDR17-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

8 June 2022

HEARING DATE:

26 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The application is dismissed.

CATCHWORDS:

TREE DISPUTE – where tree roots found in neighbour’s drains – where no independent evidence as to origin of roots – where tree keeper has removed two trees

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 45, s 46, s 47, s 48, s 49, s 52, s 65, s 66, s 68, s 74, s 75

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Mr McCarthy attended via telephone conference

Ms McCarthy did not attend

Respondent:

Mr Engler attended via telephone conference

REASONS FOR DECISION

Mr and Mrs McCarthy have lodged an application asking the Tribunal to make an order that Mr Engler pay them an amount of money to compensate for costs and expenses and discomfort they say has been caused by tree roots from his property causing damage to their property.
It is agreed between the parties that:
(a)They live in neighbouring properties;
(b)Mr Engler previously had two trees on his property – a mango tree and an umbrella tree;
(c)Both trees have now been removed;
(d)In 2019, Mr and Ms McCarthy experienced difficulties with their drains; and
(e)Tree roots were found in the drain.
Mr and Ms McCarthy claim that the tree roots came from the trees on Mr Engler’s property. Mr Engler denies that roots from his trees have caused damage. He says that the council inspected the sewer pipe on his property and found the pipe clear of any roots.
There is no independent evidence as to where the roots in the applicant’s pipes originated from, and no evidence (from, for example, an arborist) as to the type of tree roots in the drains.
The applicants claim that when they tried to discuss the issue with Mr Engler, they were told to go away, and that it was their problem.
It seems that Mr and Mrs McCarthy claim that damage has been caused by roots from both or either of the mango and the umbrella trees.
The applicants state in a document provided to the Tribunal that the roots “got between foundation and pipe expanded and cracked my pipe on bend”. They have provided a photograph of a pipe which has been exposed by having the soil around it removed. The receipt from their plumber states “On inspection of the line find root system all around top end of pipe and pressure of roots had broken the 90-degree bend from toilet where it came through house slab”.
By email dated 22 October 2021, the applicants state that they are claiming $2,366.07, comprised of:
Plumber Brett Roberts        $    100.00
Plumber North Water         $ 1,039.50
Breakthrough Group           $    192.50
Builder 12 hours                 $    600.00
Dept Natural Resources      $     61.10
$21.30
Photos$       6.50
QCAT $    345.80
This appears to the Tribunal to be a claim for $2,366.70.
At the hearing, Mr McCarthy advised that he was seeking an order that Mr Engler pay $2,500 plus $2,000 in compensation.
I am not satisfied that there is any statutory basis to support the claim for $2,000.
Mr McCarthy has not provided receipts to substantiate any of his claimed expenses, except for the North Water account of $1,039.50. I accept the QCAT filing fee was $345.80.
This application is considered under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), and the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Having regard to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), I am satisfied that:
(a)Both the mango and umbrella trees were “trees” within the meaning of the legislation;[1]
[1]s45, Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('ND').
(b)Mr Engler is a “tree-keeper”[2] and the trees were situated on his land;[3]
[2]Ibid, s48.
[3]Ibid, s47.
(c)The applicants are “neighbours”;[4]
[4]Ibid, s49.
(d)Mr Engler is responsible for the proper care and maintenance of his trees;[5]
(e)Mr and Mrs McCarthy’s land is affected by a tree if the tree has caused serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with their use and enjoyment of the land, and that the land adjoins the land on which the trees were situated;[6]
(f)Mr Engler is responsible for ensuring that the trees do not cause serious damage to the applicants’ land or any property on the applicants’ land, or substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land;[7]
(g)This Tribunal may make the orders it considers appropriate to remedy, restrain or prevent serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;[8]
(h)The Tribunal may make orders requiring Mr Engler to pay compensation to the applicants for damage to their land or property on their land;[9]
(i)Before the tribunal may make an order, it must be satisfied that the applicants have made a reasonable effort to reach agreement with Mr Engler;[10]
(j)The Tribunal may make an order even if the tree has been completely removed;[11]
(k)In considering what orders to make, the Tribunal must consider:
(i) anything other than the tree that has contributed to the damage/interference, including any act or omission by the applicants and the impact of any tree situated on the applicants’ land, and
(ii) any steps taken by Mr Engler or the applicants to prevent or rectify the damage or the likelihood of damage or to minimise the interference, the size of the applicants’ land, and whether the tree existed before the applicants acquired the land.[12]
[5]Ibid, s41.
[6]Ibid, s46.
[7]Ibid, s52.
[8]Ibid, s66.
[9]Ibid, s66.
[10]Ibid, s65.
[11]Ibid, s68.
[12]ss74 and 75, ND.
I find that tree roots made their way into the pipes on the applicants’ land. There is no independent evidence that the roots were from the umbrella or the mango tree on Mr Engler’s land. There is some evidence from a plumber that roots caused a crack in the pipe.
It is usual, in these matters, for the parties to provide evidence from an arborist or other party with expertise in trees. No such evidence was presented in this case. Even if I accept the evidence of the plumber that tree roots caused the crack in the pipe, I cannot be satisfied, on the evidence available, that the tree roots were from either of the trees on Mr Engler’s land. The parties are not in agreement, and there is no independent evidence. It is the obligation of the applicant in a legal dispute to bring evidence in support of their argument to the Tribunal for consideration and determination. The applicants have not done so, but instead offered their own personal opinion about the origin of the roots. It is possible that the roots originated from a tree on Mr Engler’s property but without firm evidence in support of this argument I cannot make that finding.
I am not satisfied, on the balance of probability, that damage to pipes on the applicants’ property was caused by tree roots originating from Mr Engler’s property. There is no independent evidence that the roots were from those particular trees, or trees of that species.
Even if the roots were from a tree on Mr Engler’s property, it would not necessarily follow that I would order that Mr Engler pay the amount the applicants seek. As noted above, there is independent evidence in relation to costs of $1,039.50 only being incurred, in addition to the tribunal filing fee.
If I was satisfied that the roots had caused serious damage or substantial, ongoing and unreasonable interference with the use and enjoyment of the land, there are a number of matters I must consider.
There is little evidence regarding reasonable efforts made by the applicants to reach agreement with Mr Engler. On their version of events, they showed him some photos on an iPad and he refused to acknowledge any responsibility.
If considering making an order that Mr Engler pay compensation to the applicants for damage to their land or property, I would also be required to take into account the steps taken by Mr Engler to minimise interference. It is common ground that Mr Engler has cut down two trees on his property with a view to resolving the applicants’ complaints. That is a significant effort undertaken by Mr Engler.
In all of the circumstances, I am not satisfied that Mr Engler is responsible for the payment of any costs to the applicants.
The application is dismissed.