McCaskie v Nelki
[2013] QCAT 434
•9 August 2013
| CITATION: | McCaskie v Nelki [2013] QCAT 434 |
| PARTIES: | Antonia Anna Maria McCaskie (Applicant) |
| V | |
| John Nelki (Respondent) |
| APPLICATION NUMBER: | NDR057-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 22 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 9 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The registered owner of the lot 41 Fiona Street, Bellbird Park QLD 4300 (“the tree keeper”) shall arrange to maintain a biannual reinspection regime on the tree the subject of the dispute (“the works”) to ensure that no branches overhang the property at 39 Fiona Street, Bellbird Park QLD 4300. The first biannual reinspection shall take place on or before 31 October 2014. 2. The works must be carried out in accordance with Australian Standard 4373 – 2007 – Pruning of amenity trees. 3. The works must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (“AQF”) level 5 in arboriculture. |
| CATCHWORDS: | TREE DISPUTE – where tree branches overhang into neighbours property – whether tree detrimentally affects neighbours land – whether tree branches or limbs cause damage or constitute substantial ongoing and unreasonable interference – whether tree is likely to cause damage in the future – retention of tree and danger to persons prime considerations Neighbourhood Disputes Resolution Act 2011, s 42, 46, 65, 66, 72, 73, 75 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Antonia Anna Maria McCaskie |
| RESPONDENT: | John Nelki |
REASONS FOR DECISION
Ms McCaskie has resided at 39 Fiona Street, Bellbird Park for some 25 years. Mr Nelki has been at 41 Fiona Street, Bellbird Park for at least 20 years. They are neighbours.
Until recently there were 4 tall eucalypts and 2 leopard trees located on Mr Nelki’s property near or adjacent to his northern boundary with Ms McCaskie’s property.
Ms McCaskie asserted in her application filed 14 March 2012 that branches were hanging some 8 metres over the common boundary and that small limbs, leaves and seeds were dropping on her roof and clogging her water tank filter and guttering on the side of her house near side to the offending trees. Ms McCaskie feared for her safety in the event of these trees falling over particularly during severe weather events. Ms McCaskie applied to the Tribunal for tree removal.
Both leopard trees have since been moved by Mr Nelki. There is one Gum-topped Box (eucalyptus moluccana) growing in the rear north west corner of 41 Fiona Street, approximately 1 metre from the fence line the subject of ongoing dispute between the parties. The properties are situated in a medium density residential area exhibiting retention of native vegetation mainly eucalypts providing a habitat for native fauna particularly the local dwindling koala population.
The tree, as described by Mr Hobbs, the appropriately qualified arborist appointed by the Tribunal on 9 May 2012, is approximately 27 metres high with a crown spread of some 12 metres, is mature and is in good health.
Ms McCaskie asserted the tree leans towards her house and that if it fell over it would fall on her house; that even with careful management the tree might fail in extreme weather events; that Mr Hobbs, the arborist, cannot guarantee that the tree will not fall over; that most importantly the tree should be cut down for Ms McCaskie’s personal wellbeing, safety and enjoyment of her property.
Mr Nelki asserted the subject tree had withstood extreme weather events over many decades without shedding anything more than leaves and twigs; that Ms McCaskie’s problem with the blocked gutters and filters was caused by the since removed leopard trees which annually shed numerous tiny leaves; that at the time he arranged removal of the 2 leopard trees in January 2012 he also arranged for removal/pruning of lower branches off the offending tree back to the trunk; that such removal/pruning was carried out by David McDonald of Rightway Tree Solutions Pty Ltd, himself a certified arborist; that there were “a couple of high branches over a part of Ms McCaskie’s house.”
QCAT appointed arborist report
Mr Jonathan Hobbs certified and qualified arborist states in his report of 27 August 2012 that he inspected both properties in the presence of both parties on 31 May 2012. He observed “some debris from the tree was noted on the applicant’s roof at the time of inspection.” He confirmed that “Mr Nelki has engaged an arborist to remove 2 branches that were growing towards the applicant’s house in January of this year.” He further observed that apart from some minor deadwood the tree had maintained a good level of vigour. He concluded that the tree was in good health. He observed that the tree “has a slight lean towards number 39 that seems be associated with phototropism (growing towards light) rather than movement of the root plate… the crown is well balanced and there is less weight on the side of number 39 since the pruning work that was carried out in January of this year.”
He further stated “the crown of the tree is typically open i.e. the foliage is relatively sparse and does not present high levels of resistance to wind. If any part was to fail during adverse weather conditions, it would be more likely to be confined to branch failure rather than complete failure of the trunk.”
Mr Hobbs stated that Ms McCaskie’s issues focussed on debris falling onto her home; that whilst cutting back of overhanging branches would reduce tree debris it would not eliminate it especially given that there are other trees nearby. He suggested that leaf guards on guttering and water tank would greatly improve the situation and reduce frequency of cleaning “although some level of ongoing maintenance is unavoidable”.
Mr Hobbs is of opinion that pruning if carefully applied would increase stability and reduce debris and wind resistance. Crucially Mr Hobbs final conclusions are:
§There are no obvious reasons why the tree should be removed, although as with most large trees that grow in urban areas, there will always be some level of maintenance required.
§A combination of considerately applied pruning and the installation of leaf guards to the guttering and water tank on Ms McCaskie’s property should alleviate most of the issues raised in the matter.
The Tribunal issued proposed orders dated 3 September 2012 giving effect to Mr Hobbs recommendations which essentially provided for pruning and maintenance. Mr Nelki consented to those orders, Ms McCaskie did not. With respect to pruning the proposal was for Mr Nelki to “cut back the main branches that overhang the property at 39 Fiona Street, Bellbird Park QLD 4300 to another growth point.” Mr Nelki, in any event, had Mr McDonald re attend to cut back the “main branches” such work being completed on 6 November 2012.
Mr McDonald in correspondence dated 19 February 2013 and submitted to the Tribunal stated, “I have recently performed a weight reduction and directional pruned branches away from the neighbouring property. This action was taken as a directive contained in the tree report by Jonathan Hobbs (QCAT representative).” He then comments that the tree has withstood severe weather events and that “it currently displays good vigour of canopy with no visual structural defects to trunk wood or limbs.”
Conclusions
The Tribunal may make orders in relation to this tree to prevent serious injury to any person. No evidence has been produced to the Tribunal that any person has been or is likely to be seriously injured.
The Tribunal may also make orders to remedy, restrain or prevent serious damage to a neighbours land. Here there is no serious damage to Ms McCaskie’s land or indeed that there is likely to be.
The Tribunal may make orders about trees to remedy, restrain or prevent substantial ongoing and unreasonable interference with Ms McCaskie’s use and enjoyment of her land. Such orders can be made where the interference is presently occurring or is likely within the next 12 months. When assessing any such interference the Tribunal must consider the matters listed in section 73 of the Neighbourhood Disputes Resolution Act 2011 (NDR Act) and may consider where applicable those matters listed in section 75 NDR Act.
Before proceeding to determine whether orders should be made the Tribunal must be satisfied that the neighbour has complied with section 65 NDR Act i.e. attempted settlement/resolution. The Tribunal is so satisfied.
Section 73 NDR Act
Here the tree is located on Mr Nelki’s land; the carrying out of work on the tree such as pruning would not appear to require any unusual consent or authorisation; the tree does not appear to have any historical, cultural, social or scientific value. The tree does appear to contribute to the local ecosystem and to biodiversity. The tree might enhance the natural landscape most likely in the eyes of the beholder Mr Nelki; the tree in terms of public amenity and contribution to amenity of the land appears to be in keeping with the areas numerous well established gum trees; although positioned on a slope the tree does not appear to affect soil stability; any risk associated with the tree in the event of a cyclone is minimal according to the letter and tenor of Mr Hobbs report which also indicates that considered pruning should keep the tree safe and healthy. This tree is not a pest.
In terms of section 75 NDR Act Mr Nelki has taken steps to prevent or minimise interference in that he has already attended to considered directional pruning of the tree which was most likely in existence before either of the parties became adjoining neighbours.
All the while the underpinning guiding principle applicable to whether or not a tree should be removed or destroyed is articulated in section 72 NDR Act which states:
A living tree should not be removed or destroyed unless the issue relating to a tree cannot otherwise be satisfactorily resolved.
Here the only issue of substance relating to the tree is debris clogging guttering and the water tank. The Tribunal is satisfied that can be addressed by considered pruning in a structured manner and on an ongoing basis (a maintenance program) as well as the installation of leaf guards to the guttering and water tank on Ms McCaskie’s property.
Mr Nelki has expressed a willingness to have any overhanging branches removed at his expense.
Mr Hobbs in his recommendations suggested, “a biannual reinspection regime for trees” whilst Ms McCaskie suggested that in the event of the Tribunal deciding on “merely trimming back” that the tree should be reinspected every 12 months. Either way the Tribunal considers some sort of maintenance program should be put in place and prefers here to follow Mr Hobbs opinion of a biannual reinspection regime.
Finally, it clearly was never the intention of the legislation that the Tribunal or indeed any person or entity be expected to provide guarantees about the future state or condition of living trees.
Orders
The registered owner of the lot 41 Fiona Street, Bellbird Park QLD 4300 (“the tree keeper”) shall arrange to maintain a biannual reinspection regime on the tree the subject of the dispute (“the works”) to ensure that no branches overhang the property at 39 Fiona Street, Bellbird Park QLD 4300. The first biannual reinspection shall take place on or before 31 October 2014.
The works must be carried out in accordance with Australian Standard 4373 – 20007 – Pruning of amenity trees.
The works must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (“AQF”) level 5 in arboriculture.
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