Milgate v Wilson - [2014] QCAT 109

CITATION:

Milgate v Wilson [2014] QCAT 109

PARTIES:	Joy Milgate (Applicant)
v
Paul Wilson and Susan Wilson (Respondents)

APPLICATION NUMBER:

NDR130-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

24 March 2014

HEARD AT:

Brisbane

DECISION OF:

Professor A Ashman, Member

DELIVERED ON:

24 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent will pay to the applicant the sum of One Hundred and Fifty Dollars ($150.00) being the respondent’s full and final liability for damage to the dividing fence resulting from the fall of a branch or branches onto the fence in March 2013.

2. The amount in (1) is to be paid within two (2) weeks.

CATCHWORDS :

NEIGHBOUR DISPUTE — REMOVAL OF A TREE — where the neighbour seeks the removal of a tree – where safety of a person and property damage is alleged – where there is no evidence justifying the removal or the tree – where minor damage to property has been caused by the tree – where the respondent is ordered to undertake pruning – where the cost is to be borne by the respondent

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 31, 57, 66, 71, 72

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Joy Milgate

RESPONDENT:

Paul Wilson and Susan Wilson

REASONS FOR DECISION

Eucalyptus trees abound in Brisbane suburbs and one of these has contributed to friction between neighbours in a bayside suburb. Mrs Milgate has taken exception to the Wilsons’ tree primarily due to her concerns that it deposits leaf and bark litter onto her property that, she asserts, clogs her gutters and the intake of a water tank or tanks. The tree dropped a branch during a storm early in 2013 and this caused some damage to the fence dividing the two properties.
Mr Wilson offered to pay 100% of the cost of repairing the fence but Mrs Milgate refused this offer on the basis that she had contacted her insurance company in advance of his offer. The fence was repaired some months later and Mrs Milgate seeks half of the costs from the Wilsons, which they refused.
The relationship between the neighbours has not been amicable for quite some time and in May 2013, Mrs Milgate lodged an application in the Tribunal seeking the removal of the tree, the removal or pruning of branches both at the respondents’ cost, access for such work, and compensation for damage to Mrs Milgate’s land or property in the amount of $320.
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 the trees seriously obstruct sunlight or cause severe obstruction to a view from the neighbour’s dwelling.[2]
[1] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 66(2).
[2] Ibid s 66(3).
The primary concern of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 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] Ibid s 71.
[4] Ibid s 72.
Section 66(5) of the Act contains additional considerations including the payment of compensation to a neighbour for damage caused by the tree-keeper’s trees.
Mrs Milgate provided a significant number of photographs that show the location of the tree and the inconvenience of leaf litter.
The Wilsons engaged an arborist in June 2013 to examine the tree, specifically in regard to Mrs Milgate’s concerns. This action might have been undertaken as a result of Mrs Milgate’s application to the Tribunal.
In early July 2013, the Tribunal issued directions that an appropriately qualified arborist carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in Mrs Milgate’s application. Mr Noel Fitzpatrick conducted an inspection on 3 August 2013.
He reports that the mature, double-trunked Narrow-leaved Ironbark shows good vigour with normal leaf size, canopy density and a general lack of atypical dead work or crown recession. It has been pruned at some time in the past and that one of the co-dominant stems grows over Mrs Milgate’s land.
Mr Fitzpatrick believes that the Ironbark is not causing, or is not likely to cause, serious injury with the next 12 month and no failure of the tree or any part of it is predicted. There are no nuisance aspects to the tree although he states that trees of this type drop debris but it is not apparent that the Wilsons’ Ironbark is the sole contributor to Mrs Milgate’s debris problem and that a larger, adjacent Ironbark in a neighbouring property is likely to contribute to this issue.
Mr Fitzpatrick also addressed Mrs Milgate’s concern in regard to the obstruction of sunlight and concluded that both Ironbarks plus a Leopard Tree on Mrs Milgate’s property contribute as much, if not more, to this.
Mr Fitzpartick noted that the Wilsons’ Ironbark had caused some damage during the storm to the Wilson/Milgate boundary fence. He concludes that there is no justification for the removal of the tree but recommended a pruning regime that might lessen Mrs Milgate’s concerns.
The report by the arborist engaged by the Wilsons, Mr Matt Williams, came to a similar conclusion to Mr Fitzpatrick. That is, the Ironbark in the Wilsons’ yard is a healthy tree that is in a symbiotic relationship with an adjacent Ironback. The Wilsons’ tree is unlikely to affect Mrs Milgate’s property or the obstruction of sunlight. Mr Williams also suggested some modest pruning that would comply with Australian standards.
Mrs Milgate gave evidence that the leaf litter has caused damage to soffits despite the fact that gutters are cleaned from time to time, possibly every 6 to 8 weeks although sometimes longer. She stated that her current gutter guards are ineffective in preventing leaf litter penetrating into the gutters. She stated that she was not now seeking the destruction of the tree only the pruning of all overhanging branches back to the boundary fence. She confirmed that overhanging branches are considerably above a point 2.5m from the ground.
Mr Wilson stated that he does not believe his tree is the sole cause of the leaf litter, is willing to have the tree pruned if this is considered necessary by a qualified arborist. As for the offer of $150 in compensation for damage to the fence, he stated that he was able to obtain new panels to replace the damage to the fence for $117 and that he rounded up that amount to $150 in good faith.
The Tribunal accepts Mrs Milgate’s concerns for her safety in the event of a major storm and that leaf and bark litter is a constant irritation. However, both arborists do not suggest any serious risk that the tree imposes on either property or person.
Mr Fitzpatrick drew attention to the reality of leaf litter: All trees shed debris. Mrs Milgate’s photographs show the accumulation of leaf litter in the gutters and in the water tank intake but there is also evidence in photographs of the inadequacy of the current gutter guards that allow leaves to accumulate within the gutters. Debris of the nature that accumulates in Mrs Milgate’s yard is not considered to be serious damage to her land or property, or substantial, unreasonable interference. Leaf litter is an accepted reality in any treed suburb. Regular maintenance is required to ensure that protective devices are installed and, importantly, properly maintained and cleaned.
As for the damage to the dividing fence, I have examined the photographs provided by Mrs Milgate and the Wilsons. Mrs Milgate implied that there was significant damage done to the dividing fence as a result of the branch dropping from the Wilsons’ tree during the storm, which incurred a rectification costing $640. Such damage is not obvious in the photographs. Indeed, without an alert to the fact that there was damage one could be forgiven for missing the minor buckling to some caping sheets. Of importance, Mr Wilson was willing to rectify the damage at his own cost.
Section 72 of the Act states that a tree should not be removed if another satisfactory resolution is found. Both arborists suggest pruning to maintain the structural integrity of the tree. Neither states that this is essential. Mr Fitzpatrick writes, ‘The following pruning recommendations follow [sic], and will serve to minimise (in the medium term) the alleged effects of the subject tree on the applicant’s property’. Mr Williams writes, ‘It is recommended that consideration be given to engaging a pruning session’, and further, ‘Based on my observations, there is minimal impact to the property at 16 Bournewood Street from the subject tree’.
The Tribunal is not satisfied that the extent of debris or the damage alleged to the boundary fence constitutes serious damage or risk to person or property. A prudent tree keeper would consider the arborists’ recommendations and act to maintain the health of the tree and eliminate, to the greatest extent possible, the prospect of any risk or damage that might occur in a serious weather event. The Wilsons have undertaken to do this provided Mrs Milgate cooperates to allow any access that might be necessary to fulfil this undertaking. Indeed, she states her willingness to allow an arborist or his/her staff to enter her property.
As to Mrs Milgate’s claim for compensation for the cost of repairing the boundary fence, the Tribunal recognises that the Wilsons initiated a process to repair the fence at their own cost, which Mrs Milgate rejected. The damage sustained, at least to the extent that this is shown in the photograph, appears minor. Mrs Milgate proceeded to have the fence repaired without consultation with the Wilsons.
The Wilsons offered Mrs Milgate $150, which was their fair assessment of the cost of repairs. The Tribunal is satisfied that $150 is not an insult offer and that if Mrs Milgate had acted cooperatively with the Wilsons, and with an equivalent contribution from her the repair cost would have been minimised.
In conclusion, the Tribunal makes no order in regard to the Ironbark tree that is the subject of the applicant and accepts that the Wilsons will maintain the tree in a healthy state. As they were willing to pay Mrs Milgate $150 to cover the reasonable cost of repairs, the Tribunal orders them to pay that amount to Mrs Milgate within 14 days.