Merrett v Turner - [2014] QCAT 569

CITATION:

Merrett v Turner [2014] QCAT 569

PARTIES:

Kevin Merrett
(Applicant)
v

Stephen Turner
(Respondent)

APPLICATION NUMBER:

NDR006-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

9 October 2014

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

DELIVERED ON:

9 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application by Kevin Merrett for the pruning of palm trees situated at 3 Silver Birch Close Eight Mile Plains is dismissed.

CATCHWORDS :

NEIGHBOUR DISPUTE—REMOVAL OF A TREE—where the neighbour seeks the pruning of tree, where safety of a person and property damage is alleged, where the trees block sunlight into the applicant’s property, where there is no evidence justifying the pruning of the tree; where the respondent has already removed one tree;

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 66, 71, & 72

APPEARANCES and REPRESENTATION (if any):

Kevin Merrett

Stephen Turner

REASONS FOR DECISION

Nearly every suburbs of Brisbane shows evidence of its subtropical location. Palm trees are in abundance on many residential blocks and at least some of these lead to tensions between neighbours. That is the situation that led Mr Merrett and Mr Turner to the Tribunal.
Mr Merrett has taken exception to trees that are located on Mr Turner’s property and growing in close proximity to their common boundary fence.
In his application, Mr Merrett raised three concerns: that the trees block sunlight in winter and this causes ongoing and unreasonable interference with the use and enjoyment of his adjacent patio and garden areas. He asserts that white ants live in one of the trees, and there are additional concerns that in the event of a cyclone or extreme weather event the trees constitute a risk to his property or physical harm to persons.
Mr Merrett sought the cooperation of Mr Turner specifically requesting the trees be reduced to about 2.5 metres in height. As this did not produce the results that Mr Merrett wished, in mid-January 2014 he lodged an application at the Tribunal for orders for the pruning of the trees.
The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person, if there is a need to remedy, restrain, or prevent serious damage to the neighbours land or property, or if there is substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land[1]. Additionally, the Tribunal might make an order if trees seriously obstruct sunlight or cause severe obstruction to a view from the neighbour’s dwelling[2].
[1] Section 66(2) of the Act.
[2] Section 66(3) of the Act.
The primary concern of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in regard to trees is the safety of any person[3]. In addition, the Act states that the removal or destruction of living trees is to be avoided unless the issue relating to the tree cannot otherwise be satisfactorily resolved[4].
[3] Section 71.
[4] Section 72.
On 28 March 2014, the Tribunal issued directions that an appropriately qualified arborist carry out an inspection of the tree and provide a report to the Tribunal on the issues raised in Mr Merrett’s application. Mr Anthony Cockram conducted an inspection on 10 May 2014.
Mr Cockram identified five existing trees: four Alexandra Palms and one Bangalow Palm. He notes that one tree mentioned in Mr Merrett’s application has already been removed.
In brief, Mr Cockram reported that the four Alexandra Palms were all approximately 8.5 m tall and the Bangalow Palm was approximately 7.5 m tall. All were in good health and displayed no structural defects at the time of inspection. Although it was not considered in the application, he also made comment about a Cyanthea australis Tree Fern as it was implicated in the alleged obstruction of sunlight into the patio area.
Mr Cockram concluded that the trees are not likely to cause any serious damage to the land or property in the next 12 months. They tolerate extreme weather conditions exceptionally well and do not drop debris or dead wood, or fail completely.
As for the obstruction of sunlight, he expressed the opinion that, on his inspection, the palms did not obstruct sunlight to any substantial or unreasonable extent as they primarily affected windows into the garage and only during winter months during the morning.
Mr Cockram informed Messrs Merrett and Turner that termites are not attracted to live palms.
By way of mediating the dispute between the parties, Mr Cockram proposed a compromise arrangement with the parties, namely, the removal of the Bangalow Palm and its replacement with a tree that was more easily controlled in terms of height than palms, and relocation of the Tree Fern. Ultimately, Messrs Merrett and Turner did not agree with Mr Cockram’s solutions.
In his response to the Mr Merrett’s application, Mr Turner stated that the trees were on his property when Mr Merrett purchased the adjoining property, that pruning is not a solution to Mr Merrett’s allegations as palms cannot be topped and that Mr Merrett’s suggestion is tantamount to the destruction of all five palm trees, a solution he was not prepared to consider. He also questioned the extent to which the shading produced by the palm trees constituted unreasonable interference as the shade fell on the garage side of Mr Merrett’s house and on the patio; the latter is already covered.
Taking Mr Merrett’s concerns, but in reverse order, the Tribunal accepts Mr Merrett’s concerns about safety in the event that a serious weather event although, as Mr Cockram has stated, palms are not prone to failure under such conditions. Given the apparent modest canopy of fronds and good health of the trees, the Tribunal does not agree with Mr Merrett that they constitute a danger to persons or property.
In regard to the white ant concerns, since the lodgement of the application, Mr Turner removed the single tree that was implicated with the white ant infestation so this matter requires no further consideration.
As for the shading of Mr Merrett’s patio, Mr Merrett removed the Tree Fern to which Mr Cockram referred. Notwithstanding this, in his report, Mr Cockram was not of the view that the shading of Mr Merrett’s property constituted substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land. He noted that as the trees proceed to grow, the shading will be of less impact.
Mr Merrett provided a sun diagram showing the impact of the trees and stated that the trees affect his patio area mostly in winter months. In response, Mr Turner stated that Mr Merrett and his wife have undertaken caravan trips in winter months over the past two years, a point accepted by Mr Merrett.
The issue for the Tribunal rests in the definition of “unreasonable” in regard to interference. In their present growth period, the palms do cast shadows over the patio area during winter months. The photographs provided by Mr Cockram show filtered shadows and the position of the trees would suggest that this effect would move away from the patio as days progress. Trees cast shadow. In this case, the impact of those shadows might be annoying, but in this case the Tribunal does not find that it is significant or unreasonable.
Section 72 of the Act states that a tree should not be removed if another satisfactory resolution is found. Reducing the height of 7 to 8 m high palm trees is not an option as this will inevitably kill them. No white ants are thought to be residing in the palm trees. Shading as described by Mr Merrett and Mr Cockram certainly exits but given that the patio area is fully covered, and that shading would occur for relatively short period in the year, this could in no way be considered as overwhelming or oppressive to justify the destruction of the trees.
The Tribunal finds that there is no substantial case for the pruning of any of the palm trees that are the subject of Mr Merritt’s application to a height of 2.5 m and dismisses the application.