McConnell v Zenalee Pty Ltd
[2013] QCAT 249
| CITATION: | McConnell v Zenalee Pty Ltd [2013] QCAT 249 |
| PARTIES: | Margaret McConnell (Applicant) |
| v | |
| Zenalee Pty Ltd (Respondent) |
| APPLICATION NUMBER: | NDR065-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 22 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Kanowski, Member |
| DELIVERED ON: | 27 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Zenalee Pty Ltd is to have the dead tree (referred to as tree 3 in Mr Inman’s report) at 24 Satton Street, Russell Island, cut down completely. Any part of the felled tree on Ms McConnell’s land is to be removed by Zenalee Pty Ltd. 2. The work is to be carried out at Zenalee Pty Ltd’s expense. 3. The work is to be completed on or before 26 July 2013. |
| CATCHWORDS: | TREES – overhanging neighbour’s yard – minor tree debris falling on neighbour’s property –– whether substantial, ongoing and unreasonable interference – costs of removal where poisoning alleged Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 46, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 74, s75 Barker v Kyriakides [2007] NSWLEC 292 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self |
| RESPONDENT: | Ya-Chun Chen, a director of Zenalee Pty Ltd |
REASONS FOR DECISION
Introduction
Ms McConnell lives at 22 Satton Street on Russell Island. Next door, at 24 Satton Street, is a vacant lot with a number of Bribie Island pine trees near the boundary with Ms McConnell’s lot. Parts of the trees overhang Ms McConnell’s yard. Ms McConnell would like six trees to be cut down. One is dead, and the others drop needles and other small debris into her yard. Ms McConnell is worried the trees will fall onto her property in a storm.
The owner of the vacant lot, Zenalee Pty Ltd, wants the living trees preserved. Ms Chen, on behalf of Zenalee, does not object to the dead tree being cut down, but argues that Ms McConnell should bear some or all of the cost. This is because Ms McConnell allegedly caused the death of the tree by spraying poison.
Ms McConnell applied to QCAT on 21 March 2012 for orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Background
The trees were there when Ms McConnell and Zenalee purchased their properties in 2003. Ms McConnell told me the trees were large in 2003, and there was some overhang even then, but they are now substantially larger.
The side of Ms McConnell’s house which faces toward Zenalee’s land and the trees appears, from the photos, to be a blank wall. Between the wall and the dividing fence is a shade sail, under which Ms McConnell parks one of her two vehicles. She also parks the other vehicle on that side of her yard. There is no carport. She says, and I accept, that there is no room for the vehicles on the other side of the house. The distance from the edge of the house to the fence is 5.5 metres. Ms McConnell’s gutters run along the front and the back of the roof. The back gutter feeds a tank.
An arborist, Mr Benjamin Inman, prepared a report for QCAT on 10 June 2012. He advised that the trees range in height from 13 to 18.5 metres. They are all ‘mature’, meaning that they have reached their expected size for their location. At their bases, the trees stand between one and eight metres from the fence, and so between 6.5 and 13.5 metres from Ms McConnell’s house. There is about 3.5 metres of canopy overhang into Ms McConnell’s yard. From the photos, I see that most of the overhang is in the upper parts of the trees, but there is some overhang from about the height of the shade sail post. The overhang does not extend to the roofline but wind carries tree debris onto the roof.
All trees are described by Mr Inman as having good structure and, with the exception of the dead tree, good health. The dead tree (identified as tree 3 in Mr Inman’s report) is 13 metres in height. Its base is nine or ten metres from Ms McConnell’s house.
Mr Inman assessed the ‘target risk’ for each tree. For all trees this includes the dividing fence, while for some it also includes the driveway area, shade sail area, house, and/or the backyard area of Ms McConnell’s property. With the exception of the dead tree, Mr Inman assessed the ‘hazard rating’ at between 3 and 5. This is said to represent a low hazard within a two to three year timeframe. Mr Inman assessed the hazard rating for the dead tree at 7. This is said to represent a medium hazard within 12 months.
Mr Inman said the living trees are healthy and vigorous, with a low risk of failure. None of the six trees were likely, within 12 months, to cause serious injury or substantial damage to Ms McConnell’s property. The dead tree ‘will require removal to improve the risk of causing … injury or damage … but not within the next 12 months’.
It is not in dispute that tree debris (leaf, flower, fruit and seed pod) fall from the trees into Ms McConnell’s property throughout the year. There are photos of tree debris on the ground, on a car, the roof, in insulation material in the roof cavity, in the front gutter, and in the water tank filter. Ms McConnell told me she has to clean the gutters, or have someone else clean them, approximately every two months. She has provided photos to indicate about a quarter of a wheelbarrow load of tree debris from a clean of the front gutter. I accept that the volume of fall is such that Ms McConnell has to clean her gutters approximately every two months.
QCAT can make orders in relation to a tree:
·to prevent serious injury to a person;
·to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land; or
·to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[1]
[1] Section 66(2) of the Act.
Should orders be made because of a risk of any of the five living trees falling?
If one or more of the living trees, or any large branches, fall, there would obviously be a risk of serious injury and serious property damage. Ms McConnell is concerned that one or more of the trees will fall into her yard in a storm, perhaps onto her house and/or one of her vehicles.
Mr Inman has prepared a detailed and well-reasoned report. I see no reason to doubt his expert opinion that the living trees are healthy and structurally sound, and unlikely to fail within 12 months. They have stood next to Ms McConnell’s property for many years without falling, and no doubt weathered many storms. Ms McConnell has suggested that storms are becoming more severe, but there is no independent evidence before me that would support that assertion.
Mr Inman assigned a low hazard rating, which as I have said equates to a low hazard risk within a two to three year timeframe. There is nothing in Mr Inman’s report that suggests that the trees will present a greater hazard after two or three years, though of course this would be better assessed at that time.
I am not satisfied that there is a likelihood of these trees causing serious injury or serious damage within 12 months or indeed within the foreseeable future. Accordingly, no orders are warranted at this stage on the ground of serious injury or serious damage associated with tree or branch collapse.
Ms McConnell is concerned that a falling tree or a protruding branch might take out the power line running from the street line to her house. She told me she spoke with an Energex crew on the island some months ago, and they said it was not Energex’s responsibility to prune trees on private property. This is at odds with an Energex brochure Trees and powerlines submitted by Ms Chen. In the brochure Energex says that it has a responsibility to maintain clearance zones around powerlines, and that it maintains powerlines to the first point of contact on a person’s property, such as the house. I infer from this that Energex would prune branches on Ms McConnell’s property if necessary for safety. Ms McConnell may need to make further enquiries with Energex if she thinks action is required. Orders from QCAT are not needed to deal with any powerline problem.
Should orders be made because of a risk of the dead tree falling?
It is common ground between the parties that the dead tree should be removed because of the risk that it may fall, though Mr Inman did not consider the risk imminent.
The primary consideration is the safety of any person.[2] I am also required to consider a number of other matters,[3] such as the location of the tree, any risks associated with the tree in the event of an extreme weather event, any additional factors contributing to the risk, whether any authorisation under another Act is required, any contribution the tree makes to the local ecosystem and the natural landscape, and so on.
[2] Section 71 of the Act.
[3] Under sections 73 and 74 of the Act.
Ms Chen says that all trees on Russell Island are subject to a vegetation protection order. Even if that is correct, no council authorisation would be required for the dead tree’s removal. This is because the tree is only nine to ten metres from Ms McConnell’s house. As Mr Inman points out in his report, a Redland City Council local law allows removal without council permission of protected trees within 10 metres of a dwelling.
Later in these reasons I will refer to some comments by Mr Inman and another arborist about amenity and ecology. I consider that any factors in favour of retaining the dead tree, such as any contribution to the local ecosystem, are outweighed by the need to ensure safety. The tree is close to Ms McConnell’s yard and within striking distance of her vehicles and house. An order for the removal of the tree is appropriate to prevent serious injury and/or serious damage to property.
For the sake of completeness, I should add a few comments about QCAT’s jurisdiction, even though the matter was not argued by the parties. QCAT can only make orders in relation to a tree affecting a neighbour’s land.[4] This expression has a particular meaning in the Act. Under the Act, land is affected by a tree if there are overhanging branches or if, relevantly, the tree is likely within the next 12 months to cause serious injury or serious damage.
[4] Section 66(2) of the Act.
It is not clear to me from the material whether the dead tree actually overhangs Ms McConnell’s property. Ms McConnell is unsure. Assuming for the moment that it does not overhang, I would then need to be satisfied that there was a likelihood of the requisite harm within 12 months. But does that mean 12 months of Ms McConnell’s application to QCAT (on 21 March 2012) or 12 months of the decision date (27 May 2013)? The dead tree is still standing, more than 12 months after 21 March 2012. There would be an argument that the relevant 12 month period runs from the date of application, because QCAT has jurisdiction when it is alleged that, as at the date of the application, land is affected by a tree.[5] However, there is nothing in s 66 itself that requires QCAT to consider the position as at the date of the application. The practical and better view, in my opinion, is that the likelihood of harm should be assessed as at the date of QCAT’s decision. Although predicting when a tree will fall is far from an exact science, I am reasonably satisfied that it is likely that the dead tree will fall and cause serious injury or damage within 12 months of 27 May 2013. Accordingly, I am satisfied that Ms McConnell’s land is affected by the dead tree, for the purposes of the Act, even if it is not overhanging. Therefore QCAT has jurisdiction to make an order for the tree’s removal.
[5] Section 61 of the Act.
Tree debris: Do they cause serious damage to property?
I must consider a number of matters under ss 73 and 74 of the Act. These include any contribution the tree makes to the natural landscape, the type of tree (including whether it is a pest or weed), and any steps taken by either landowner to prevent damage.
Although Ms McConnell regards the trees as unsuitable in their location, there is no evidence that the species is generally regarded as a pest or weed on Russell Island. An arborist from the Redland City Council, Mr Ken Folkes, sent an email to Ms Chen in which he said the trees are ‘significant specimens given their age and amenity to the area’. Ms Chen endorses this view. Mr Inman thinks that the trees make a ‘significant contribution’ to the natural landscape, public amenity, local amenity and local ecosystem. I have no reason to doubt this opinion.
I have also had regard to the other matters mentioned in ss 73 and 74, and the evidence outlined below, in deciding whether serious damage to property has occurred, or is likely to occur.
Gutters
Ms McConnell told me that the tree debris clog the gutters and downpipes, and so moisture builds up. She had to replace the gutters in 2009: the front gutter especially needing replacement. She tried gutter guards but found they only made the problem worse. She considers it unreasonable to have to clean out her gutters every two months. She has health problems and is not supposed to climb ladders, so she normally has to ask a friend to clean the gutters for her.
I accept that Ms McConnell has to clean, or have cleaned, her gutters every two months or so because of debris from the pine trees in question. I also accept that Ms McConnell’s old gutters deteriorated because of moisture build up, resulting from tree debris, and that she replaced them in 2009. Ms McConnell has owned the property since 2003, but it was rented out until she moved in herself in early 2011. The house was on the site when she bought the property, and she does not know when it was built. So the old gutters lasted at least six years, and possibly several more. It may well be that the tenants did not maintain the gutters as diligently as Ms McConnell does. (I note that Ms McConnell told me the garden was overgrown with weeds when she moved in). So inadequate gutter maintenance may have contributed to the deterioration of the old gutters. In any event, I do not consider it remarkable that guttering might have to be replaced once in a ten year period. I regard the deterioration of the old gutters as wear and tear rather than ‘serious damage’ to property.
Roof cavity
Ms McConnell told me that when she put her Christmas tree up in the roof cavity after Christmas in 2012, she noticed tree debris in the insulation material around the access hole. She mentioned this to the fire warden on the island, who said that it constitutes a fire hazard. Ms McConnell has provided photos showing tree debris on some insulation foam. It is not a thick coat but there is a widespread thin distribution.
Ms McConnell is unsure how the tree debris would have got into the roof cavity. A friend, Mr Graham Valentine, gave evidence on this topic. He told me that he is a retired builder, though he does not have any specific training in fire risk. He told me there would be weep holes in the wall facing the trees, and strong winds on the island must have driven some of the debris inside the roof cavity. Over time debris could build up around the trusses. He does not see how this could cause a fire to start, but there might be an added risk if there was fire in the area.
I do not place any reliance on what the fire warden said. It is not suggested that he examined Ms McConnell’s roof, and it is not apparent why he thought there is a fire hazard. In the absence of any firm and convincing evidence of a fire hazard, I am not satisfied that the presence of tree debris in the roof cavity constitutes a fire hazard. I do not consider that a thin coating of tree debris on insulation foam constitutes serious damage to property.
Shade sail
In her application to QCAT, Ms McConnell said that ‘the fir needles are very corrosive to my shade sail’. Nonetheless, the photos indicate that the shade sail is intact. Ms McConnell told me that it is the same shade sail that was in place when she purchased the property. So I do not consider that there has been serious damage to the shade sail, or that there is likely to be serious damage, beyond normal wear and tear.
Vehicles
Ms McConnell has supplied photos of tree debris on her car bonnet and windscreen. The tree debris falling on the vehicles would be annoying, and Ms McConnell would have to clean debris off quite frequently. However, there is no evidence of serious damage to property.
Garden
A photo shows a fairly barren-looking garden bed between the car parking area and the dividing fence, with few plants growing. Ms McConnell told me that nothing will grow under pine trees except perhaps cacti. With much effort, she managed to establish plants near the dividing fence at the front, which is somewhat away from the main canopy. Other photos show young pine trees which have sprouted in Ms McConnell’s garden. She says that many have sprouted. She describes them as a species that saps the ground of water and prevent other plants growing. Ms McConnell has also pointed out that tree debris on her driveway gets transferred into her house.
I accept that the trees create a relatively barren area of garden near Ms McConnell’s car parking area. As this affects only a small portion of Ms McConnell’s yard, however, I do not consider that it amounts to serious damage to her property. Similarly, the sprouting of pine trees and plant litter on the ground is not serious damage. Any garden will have the problem of unwanted plants that have to be pulled out, and plant litter that can be transferred indoors.
Conclusion
In the absence of serious damage, or the likelihood of serious damage from the tree debris, I cannot make orders to remedy, restrain or prevent such damage.
Tree debris: Do they cause substantial, ongoing and unreasonable interference with Ms McConnell’s use and enjoyment of her land?
Ms McConnell finds dealing with the tree debris burdensome and stressful. She submits that the tree debris cause substantial, ongoing and unreasonable interference with the use and enjoyment of her land. The problem can be solved only by the cutting down of the trees. Pruning up to four metres, as suggested by Mr Inman, will do little to alleviate the problem.
Section 72 of the Act says that a living tree should not be removed unless the issue relating to the tree can not otherwise be satisfactorily resolved. I agree with Ms McConnell that the tree debris problem cannot be resolved other than by cutting down the trees, but I must first be satisfied that there is substantial, ongoing and unreasonable interference with the use and enjoyment of her land.
I must again consider the matters in s 73, as well as the matters in s 75. These include any steps taken by either landholder to prevent or minimise interference; the size of Ms McConnell’s land; and whether the trees existed before Ms McConnell acquired the land.
Zenalee has not taken steps to minimise the interference, but there is nothing that Zenalee could do short of chopping down the trees. Ms McConnell told me she is not in a financial position to take steps such as building a carport. Her land area is 545 square metres, which is a fairly typical size for an urban lot. The tree debris affects various parts of the house and land, as I have discussed. In my opinion, the effect is generally in the nature of inconvenience. The only part of the land which Ms McConnell is prevented from using as she would like to do is the garden bed near her car parking area. Other areas she can use, but she has the inconvenience of cleaning out gutters, pulling out young trees, raking up leaves, and so on.
In the context of similar legislation in New South Wales, the Land and Environment Court said:[6]
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
[6] Barker v Kyriakides [2007] NSWLEC 292 at [20].
This passage has been cited by QCAT, in cases such as Thomsen v White,[7] as relevant in applying the Queensland Act. While I am not bound by the New South Wales Land and Environment Court, or indeed by other QCAT decisions, I agree that the passage is well-reasoned and pertinent.
[7] [2012] QCAT 381.
The interference with Ms McConnell’s use and enjoyment of her land is ongoing. In her eyes, it is also substantial and unreasonable. I must, of course, view the matter objectively. I consider the scale of the interference to be similar to that discussed in the New South Wales case. The dropping of tree debris is inconvenient and troublesome to Ms McConnell in a number of ways. However, the types of interference are part and parcel of living in an urban environment where there is limited space between properties. I am not satisfied that the interference is substantial or unreasonable, especially taking into account that the trees were present when Ms McConnell purchased her property.
Accordingly, there is no basis for orders to remedy, restrain or prevent the interference with Ms McConnell’s use and enjoyment of her land.
Other suggestions by Mr Inman, and orders sought by Zenalee
Mr Inman suggested clearance of any overhanging branches up to four metres, however both parties acknowledge that this would not solve the problem. Most if not all overhanging branches are higher.
Mr Inman also suggested that an annual arborist’s report be obtained. Neither party seeks an order in these terms, and I consider it would be inappropriate to burden them with the cost.
Mr Inman also suggested mulching around the base of the trees to help manage weeds and to aid in tree health. Weed control is outside the scope of what QCAT can order. Further, the trees other than the dead one are healthy. Mr Inman noted damage to a root caused when Ms McConnell had a shallow trench dug on Zenalee’s land to prevent water flow. Mr Inman said that this damage may cause problems in the future. I am not satisfied, however, that the risk is sufficiently high to warrant an order for mulching.
Zenalee seeks an injunction to restrain Ms McConnell from trespassing on its land, and ‘damages to compensate for the cost to rectify the tree death and tree damages’. Ms Chen told me the injunction would address the risk of damage to the trees caused by Ms McConnell carrying out further unauthorised spraying or trench-digging. Ms McConnell should not, of course, conduct such activities, but I am not convinced that the risk of harm from these activities is sufficient to warrant orders being made. As far as compensation is concerned, Ms Chen clarified that the compensation sought is for any harm to ‘tree 2’ that results from the root damage. However, it is unknown whether such damage will result, and so it is not appropriate to make any damages order (assuming for the moment that it would be within QCAT’s powers).
Who should pay for the cutting down and removal of the dead tree?
QCAT can require either landholder to pay the cost.[8] Ms Chen submits that Ms McConnell should pay the cost, or at least a portion of it, on the basis that Ms McConnell poisoned the tree. Ms McConnell told Mr Inman that she had sprayed for weeds three to four metres into Zenalee’s lot. Mr Inman said:
This may be a contributing factor to the decline/death of tree 3 and to the increase [in] production of tree debris.
…
Death of tree may be caused by weed poisoning by the applicant, please note this was not intentional.
[8] Section 66(5)(e) of the Act.
Ms McConnell told me her spraying could not have caused the death of the tree because it was dead when she bought her property in 2003. She has sprayed only since moving into the property in 2011, she says.
Ms Chen says that there were no dead trees when she visited the lot in 2003 and 2004. She has not visited since, so she does not know when tree 3 died. However, she points to Mr Folkes’s comment that there were no dead trees when he visited in April 2012. He said there was visible browning to the foliage of a pine, which may have been caused by natural die-back or possibly by poisoning. Ms Chen adds that it is unlikely that a dead tree would have stood for at least ten years. Ms McConnell responds that the dead tree is propped up by surrounding trees.
The photos submitted by Ms McConnell with her application in March 2012 do appear to depict a dead tree, or at least one in a more advanced state of decline than indicated by Mr Folkes. Mr Folkes made only a ‘brief assessment’, and probably did not have the advantage of looking from Ms McConnell’s property. I also note that Ms McConnell referred to a ‘completely dead’ tree in a letter to Zenalee which she says she sent in 2008. In a September 2011 letter to Zenalee, Ms McConnell referred to a ‘large dead tree’. Ms Chen has not suggested that these letters were not sent.
On balance, then, I accept Ms McConnell’s evidence that the tree was dead before she started her spraying, though she might be mistaken in thinking the tree was dead when she bought her property. I am not satisfied that Ms McConnell contributed to the death of the tree.
A tree-keeper is responsible for the proper care and maintenance of their tree.[9] This includes ensuring that the tree does not cause serious injury or serious damage.[10] Accordingly, in view of my finding that Ms McConnell did not contribute to the death of the tree, it is appropriate that Zenalee pays for the cutting down of the dead tree.
[9] Section 41(1) of the Act.
[10] Section 52(2) of the Act.
Conclusion
I consider that the only appropriate orders in this case are for the cutting down of the dead tree and the removal of any parts of the felled tree from Ms McConnell’s property, with the cost to be born by Zenalee. I will allow two months in case of any unavoidable delays in having work done on the island, but of course Ms Chen should arrange for the work to be done sooner if possible.
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