McDonald v Henry
[2013] QCAT 87
| CITATION: | McDonald v Henry [2013] QCAT 87 |
| PARTIES: | Kim Maree McDonald |
| v | |
| Magaret Denise Henry |
| APPLICATION NUMBER: | NDR167-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 18 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Bevan Hughes, Member |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Margaret Denise Henry, the registered owner of the lot at 28 Anning Avenue, Golden Beach, will arrange for the removal of the Millettia Pinnata tree, the subject of this dispute, at her own cost. 2. The removal of the Millettia Pinnata is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. 3. Margaret Denise Henry will arrange for the grinding and removal of the stump of the Millettia Pinnata to prevent its regrowth, at her own cost. 4. The removal of the Millettia Pinnata and the grinding and removal of its stump are to be carried out within 90 days of the date of this order. |
| CATCHWORDS: | TREE DISPUTE – Likely to cause serious damage – roots and location - likely to cause substantial, ongoing and unreasonable interference – leaves and pods - obstruction of sunlight Neighbourhood Disputes Resolution Act2011 ss 3, 41, 42, 65, 66, 69, 70, 71, 72, 73, 74, and 75 Edmonds v Yeates & Anor [2013] QCAT 7 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Kim Maree McDonald in person |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
What is this Application about?
Kim Maree McDonald wants her neighbour’s tree removed. Ms McDonald’s main concern is that the tree’s roots are likely to break through the pipes and foundations of her property. Ms McDonald is also concerned that the tree drops leaves and pods onto her property and shades her back yard.
Margaret Denise Henry is the registered proprietor of 28 Anning Avenue, Golden Beach[1] and Ms McDonald’s neighbour. Mrs Henry is a “tree keeper” as defined in the Neighbourhood Disputes Resolution Act 2011 (the Act).
[1] Land Title Search dated 9 July 2012.
The tree referred to in the application is a Millettia Pinnata.
Does the Tribunal have jurisdiction?
Having considered section 42 of the Act, the Tribunal is satisfied that chapter 3 applies to the tree.
The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.
As a precondition to the Tribunal’s jurisdiction, Ms McDonald has corresponded with Mrs Henry through her husband, Geoff Henry in an endeavour to resolve the matter, before applying to the Tribunal. Ms McDonald stated that she did attempt to speak directly with Mrs Henry, but it was Mr Henry who answered the telephone and emails and “did all the talking”.
What does the Tribunal consider?
Section 73 of the Act requires the Tribunal to consider various matters.
Because the likelihood of serious damage is alleged, the Tribunal may also consider section 74 of the Act.
Because unreasonable interference is alleged, the Tribunal may also consider section 75 of the Act.
Where an issue has been particularly relevant, or has weighed heavily in the balance required by the Tribunal in considering the matter, they are referred to specifically below.
Is the tree likely to cause within the next 12 months serious damage to Ms McDonald’s land or property on her land?
Ms McDonald claims that the tree is likely to cause within the next 12 months, serious damage to her land or property on her land at 2/30 Anning Avenue, Golden Beach.
In his report of 10 November 2012, the arborist reported[2] that:
·Surface roots from the Millettia are evident within Ms McDonald’s property;
·Although Ms McDonald has partly excavated to a depth of approximately 100mm, the roots are a trip point within her back yard;
·The roots extend to Ms McDonald’s concrete house and awning slab and over time will expand and can cause structural damage; and
·Because the roots encroach into half of Ms McDonald’s back yard, establishing gardens would be very difficult.
[2] Paragraph 2.2 of Tree Assessment Report of David Roberts dated 10 November 2012.
Mrs Henry did not dispute this in any of her correspondence with Ms McDonald. All correspondence appears to have been made by and through her husband, Geoff Henry who relevantly stated:
We are happy to look at the removal of the tree and will give it serious consideration, at this point we have seen no detrimental effect on our property and can not note any change over recent years. At this point in time Margaret and I are very restricted with finances, I would imagine this will be the limiting factor from our point of view.[3]
Up to this date there has been no problems as a result of the tree, none are obvious or have occurred. At this point I am unable to consider the removal of the tree. I have no problems if you remove the roots that concern you or actually remove the tree yourself. Please notify me if you require any further access to the property.[4]
[3] Email Geoff Henry to Melissa McDonald dated 4 May 2012.
[4] Email Geoff Henry to Kim McDonald dated 7 May 2012.
The focus of these responses is the (lack of) impact of the tree on Mrs Henry’s property. However, section 74 of the Act refers to the likelihood of serious damage “to the neighbour’s land or property on the neighbour’s land…”. Ms McDonald is the neighbour. It is the impact on Ms McDonald’s land or property that I am to consider.
Section 74 requires that the tree is likely to cause serious damage. The plain meaning of “likely” is probably or reasonably to be believed or expected. The arborist report merely states that the roots “can” cause structural damage.[5] The plain meaning of “can” is able to – a mere possibility. By itself, I am not satisfied that this is sufficient to meet the threshold of “likely”.
[5] Paragraph 2.2 of Tree Assessment Report of David Roberts dated 10 November 2012.
However, that does not end the issue. Section 73 establishes general matters that I must consider, including the location of the tree in relation to the boundary and any premises, fence or other structure affected by the location of the tree.[6] The matters prescribed by section 73 do not suggest that each matter must be given equal weight, but balanced.
[6] Section 73(1)(a) of the Act.
This is because both sections 73 and 74 are within Division 4 of Part 5 of the Act and are to be read within that context and the objects of the Act. Both Division 4[7] and the objects of the Act[8] suggest that a holistic approach is to be preferred, by considering all the circumstances of the particular case.
[7] Section 70(2) provides that this division does not limit the matters QCAT may consider.
[8]Section 3 provides that the objects are: (a) to provide rules about … trees so that neighbours are generally able to resolve issues about … trees; and (b) facilitate the resolution of any disputes … about trees.
The tree is only 600mm from the dividing fence and, according to Ms McDonald, no more than 2 metres from her dwelling. The arborist report notes that the roots already encroach into half of Ms McDonald’s yard and extend to Ms McDonald’s concrete house and awning slab.
Upon considering all these matters, I am satisfied that the tree is likely to cause serious damage because:
· The tree was planted so close to the neighbouring property (600mm from the dividing fence and no more than 2 metres from the neighbouring dwelling);
· The roots already extensively encroach upon the neighbouring property;
· The roots already extend to Ms McDonald’s dwelling; and
· The arborist reports that the roots will expand.
I am therefore satisfied that an order is necessary to prevent serious damage to Ms McDonald’s property.
Is the tree causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with Ms McDonald’s use and enjoyment of her land?
Ms McDonald also claims that the tree causes substantial, ongoing and unreasonable interference with her use and enjoyment of her land by dropping leaves and pods and casting shade onto her property.
In his report of 10 November 2012, the arborist also reported[9] that:
·The tree casts shade over Ms McDonald’s clothes line between 2pm and 3pm, when sunlight is available for clothes drying;
·The tree’s shade will also affect the growth rate of plants within the back yard; and
·The tree’s shade is minor and not substantial.
[9] Paragraph 2.2 of Tree Assessment Report of David Roberts dated 10 November 2012.
Again, Mrs Henry did not dispute this in any of her correspondence with Ms McDonald. The focus of the responses was the (lack of) impact of the tree on Mrs Henry’s property. However, section 75 of the Act refers to substantial, ongoing and unreasonable interference with the use and enjoyment “of the neighbour’s land …”. It is the impact on Ms McDonald’s land or property that I am to consider.
Dropping of leaves and pods
During the hearing, Ms McDonald mentioned a concern with the tree dropping pods and leaves onto her property, but conceded this is not the main issue. The arborist report only briefly refers to the “amount of leaf and bark drop…is consistent with trees of this species” and that “leaf debris was observed in the applicant’s gutters.”[10]
[10] Paragraph 2.2 of Tree Assessment Report of David Roberts dated 10 November 2012.
This issue has previously been considered in a number of decisions by the Tribunal.[11] The most recent decision[12] was by the Acting Deputy President Stilgoe who, citing the previous decisions with approval, stated:
This Tribunal has determined that 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. That approach is consistent with a recent decision of the Court of Appeal in Graham & Ors v Welch.[13]
[11] Thomsen v White [2012] QCAT 381; Wallace v Keg [2012] QCAT 466.
[12] Edmonds v Yeates [2013] QCAT 7.
[13] [2012] QCA 282.
Applying this reasoning, I am satisfied that the leaves and pods in the current application are part of the “natural incidence of a suburban landscape that includes trees.”[14] Therefore, they do not constitute a substantial, ongoing and unreasonable interference.
[14] Edmonds v Yeates [2013] QCAT 7 at paragraph 9.
Obstruction of sunlight
The Tribunal’s power to make an order about an obstruction of sunlight is available if the tree rises at least 2.5 metres above the ground and there is a severe obstruction of sunlight to a window or roof.[15] Whether the obstruction existed at the time Ms McDonald took possession of the land is relevant only to a view, not to sunlight.[16]
[15] Section 66(3) of the Act.
[16] Section 66(3)(b)(ii) of the Act.
The arborist’s report states that the tree is 9 metres high.[17] The photographs attached to the application and the arborist’s report show the tree’s branches extending upward and outward well above an adjacent roof. These corroborate a height of at least 2.5 metres above the ground.
[17] Paragraph 3 of Tree Assessment Report of David Roberts dated 10 November 2012.
Section 75 requires that the interference is “substantial, ongoing and unreasonable”. Senior Member Stilgoe considered this issue in a recent decision of the Tribunal:[18]
The tree is causing a severe obstruction to sunlight to Mr Thomsen’s house and roof. That is a substantial, ongoing and unreasonable interference with the use and enjoyment of his land and it is appropriate that I make orders to address that problem.
[18] Thomsen v White [2012] QCAT 381 at paragraph 15.
In determining whether interference is unreasonable, the starting premise is ‘give and take’.[19] Trivial interferences are treated as part of the incidences of life.[20] The tree in the current application casts shade over the neighbouring property for only one hour per day. Although this may affect the drying of clothes and growth rate of plants, it does not prevent them.
[19] Kidman v Page [1959] QdR 53.
[20] Stormer v Ingram [1978] 21 SASR 93.
Importantly, the arborist in the current Application also reported that the shade is “minor and not substantial”.
These facts suggest the shade is less than the “severe” obstruction found in the decision by Senior Member Stilgoe to be a substantial, ongoing and unreasonable interference. Rather, they suggest the shade in the current application is part of the “natural incidence” to which Ms McDonald impliedly consents when “living in suburban landscape that includes trees”.[21]
[21] Edmonds v Yeates v Anor [2013] QCAT 7 at paragraph 9.
To the extent that Ms McDonald’s application relates to the shade, she “must take the trees as she finds them.”[22]
[22] Edmonds v Yeates & Anor [2013] QCAT 7 at paragraph 11.
I therefore consider that any increase in time for clothes to dry or plants to grow attributable to one hour of shade caused by the tree to be trivial and part of a neighbour’s implied consent to reasonable ‘give and take’.[23] There is no severe obstruction of sunlight sufficient for substantial, ongoing and unreasonable interference.
[23] Graham & Ors v Welch [2012] QCA 282.
What are the appropriate orders?
Because I have found that the tree is likely to cause serious damage to the neighbouring land, I may make an order to remedy, restrain or prevent serious damage to Ms McDonald’s land.[24]
[24] Section 66(2)(b)(i) of the Act.
When considering orders that are appropriate, the Tribunal is guided by the requirement that 'a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved'.[25] However, this is subject to the requirement that the primary consideration is the safety of any person.[26]
[25] Section 72 of the Act.
[26] Section 71 of the Act.
The arborist noted[27] that the tree is deciduous, has a high weed potential[28] and does not hold any historical, cultural, social or scientific value.[29]
[27] Paragraph 2.1 of Tree Assessment Report of David Roberts dated 10 November 2012.
[28] Section 73(1)(c) of the Act.
[29] Section 73(1)(k) of the Act.
The arborist proposes:[30]
That the respondent employs the skills of a qualified arborist (AQF level 3) to remove and stump grinds the Millettia and that the contractor has the appropriate public liability insurances.
[30] Paragraph 4 of Tree Assessment Report of David Roberts dated 10 November 2012.
The arborist dismissed the option of installing a root barrier primarily because it would reduce the tree’s ability to extract sustaining nutrients, affecting its stability and leaving it prone to failure during storm and exposing it to pathogens leading to its demise.[31]
[31] Paragraph 3 of Tree Assessment Report of David Roberts dated 10 November 2012.
The Tribunal has previously determined that a mere possibility of tree failure, and consequent damage or injury, is not enough to invoke section 71 of the Act.[32] However, in that matter the Applicant’s dwellings were “24 metres away up a slope”. Here, the tree is a mere 600mm from the dividing fence and no more than 2 metres from the Applicant’s dwelling.
[32] Werndly & Ors v Orchard & Anor [2012] QCAT 599.
Based on the arborist’s evidence, I am satisfied that installing a root barrier to address the likelihood of damage would present a risk to the safety of persons, given the tree’s closeness to the dividing fence and Ms McDonald’s dwelling[33] and the tree’s risk of failure during a storm.[34]
[33] Section 73(1)(a) of the Act.
[34] Section 73(1)(i) of the Act.
I therefore consider that the likelihood of damage caused to the neighbouring dwelling by the tree cannot be satisfactorily resolved other than to remove the tree and grind the stump.
Before Ms McDonald applied to the Tribunal for relief, the main issue between the parties appears to have been who should be responsible for the costs of removing the tree. A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.[35]
[35] Section 41 of the Act.
I am satisfied that because Mrs Henry is the tree-keeper and the tree was planted so close to the dividing fence and Ms McDonald’s dwelling, it is appropriate that Mrs Henry be responsible for the costs of and incidental to removing the tree.
Orders
For these reasons, the Tribunal orders:
1. Margaret Denise Henry, the registered owner of the lot at 28 Anning Avenue, Golden Beach will arrange for the removal of the Millettia Pinnata tree, the subject of this dispute, at her own cost;
2. The removal of the Millettia Pinnata is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3;
3. Margaret Denise Henry will arrange for the grinding and removal of the stump of the Milletia Pinnata to prevent its regrowth, at her own cost; and
4. The removal of the Milletia Pinnata and the grinding and removal of its stump are to be carried out within 90 days of the date of this order.
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