Newnham v Bourke
[2013] QCAT 201
•2 May 2013
| CITATION: | Newnham & Anor v Bourke & Anor [2013] QCAT 201 |
| PARTIES: | David Ronald Newnham Jean Grace Newnham (Applicants) |
| v | |
| Jamie Bourke Kim Mary Bourke (Respondents |
| APPLICATION NUMBER: | NDR053-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 17 April 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 2 May 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | TREE DISPUTE – where tree branches overhanging onto neighbouring property – whether trees affecting the land – whether branches causing damage or substantial, ongoing and unreasonable interference – whether trees cause potential damage – appropriate order Neighbourhood Disputes Resolution Act 2011, s 42, s 46, s 65, s 66, s 72, s 73, s 75 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Mr David Ronald Newnham and Mrs Jean Grace Newnham |
| RESPONDENT: | No Appearance |
REASONS FOR DECISION
This matter was scheduled for hybrid hearing on 17 April 2013 at Southport.
On that date the respondents Mr Jamie Bourke and Mrs Kim Mary Bourke did not appear.
The applicants, Mr David Newnham and Mrs Jean Newnham gave oral evidence.
The respondents are tree keepers as defined in the Neighbourhood Disputes Resolution Act 2011, (“the NDR Act”).
Mr and Mrs Newnham are neighbours of the respondents.
There are eight trees referred to in the application that include a China Doll (Radermachera sinica), five Lilly Pilly’s (Syzygium leuhmannil) a clump of Fan palms (Washingtonia filifera) and a Macaranga (Macaranga tanarius). At the date of the hearing some of the branches of the trees overhang the Applicants property by more than 0.5 metres.
The applicants raise concerns about the potential for damage or injury from branches falling from the trees and causing damage to the fence, it was conceded by them that the damage “has not yet materialised but is imminent”. There is no evidence that any risk of damage was imminent.
The applicants complain that the trees in question have been planted in a narrow area, that they are too high for the location and dangerous as they are planted too close together and about the dividing fence. The applicants allege that the trees are of such a height that if blown over in a storm they would cause extensive damage to both parties’ properties. The applicants allege that the trees are growing so close to the dividing fence that they will damage it.
They complain that the height of the trees affects their outlook and that the trees prevent them from potentially building on the land adjacent to the dividing fence. They claim that the size of the neighbour’s trees affects the value and saleability of both parties’ properties.
The respondents filed a Response and there was evidence that they had agreed to trim the trees back. The applicants produced to the Tribunal a letter from the respondent Mr Bourke to them dated 10 April 2013.[1] The respondents had offered to remove particular trees from their land conditional on the applicants “identifying which trees (you) seek to be removed … and marking up a photograph and returning it to us”. Further the respondents offered to agree to remove the trees conditional upon the applicants allowing “the tree removal company would need to access your vacant land.” The respondents offer stipulated the reasons alleging that “as you are aware, the height of these trees would be impossible to access safely from my side especially to save any potential damage to the dividing fence and my house from falling branches.”
[1] Exhibit 3.
The applicants stated that they had written a letter in response to the respondents offer to cut down the trees. They provided a copy to the Tribunal dated 15 April 2013.[2] The applicants’ position was that they preferred the respondents to cut down the trees by “climb(ing) the tree like a lumber jack, set up a block and tackle, and lower the trees in cut sections, then lower the sections down onto your side, then dispose of them.”
[2] Exhibit 2.
The applicants stated that they would consider giving the respondents access to their land to cut down the trees but only if there was “an agreement that their land was returned to its current state after the tree lopping.”
The Tribunal can make an order about trees to remedy, restrain or prevent substantial ongoing and unreasonable interference with the applicants use and enjoyment of their land.[3] Such an order can be made where the interference is occurring as at the date of the hearing, or is likely, within the next 12 months.[4] Having considered s 42 of the NDR Act the Tribunal is satisfied that the trees are trees to which Chapter 3 of the NDR Act apply.
[3] Neighbourhood Disputes Resolution Act 2011, s 66(2).
[4] Neighbourhood Disputes Resolution Act 2011, s 46.
When considering the matter the Tribunal has had regard, as it must, to s 73 of the NDR Act.
The Tribunal may also have regard, given the allegations made in this matter, to the provisions of s 75 of the NDR Act. That is, have the trees caused, or are causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants land. Those provisions have, where there is relevant evidence, been considered.
The Tribunal is precluded from making any orders in relation to a tree under Chapter 3 of the NDR Act unless the requirements of s 65 of the Act are met. Here, those matters are uncontroversial and the Tribunal has the power to make an order under s 66 of the Act.
A report from a tree assessor appointed by the Tribunal, Mr David Gunter, indicates that there are some branches of the trees that overhang the applicants’ property by more than 0.5 metres. He confirms that there is no reasonable likelihood of damage or injury from falling branches.
The applicants state, and the Tribunal accepts, that there is no actual immediate damage caused by the trees as identified, but that there is potential for some of the trees to have the potential to cause minor damage over time.
Is the tree causing substantial, ongoing and unreasonable interference with or damage to the applicants use and enjoyment of their land?
At the hearing the applicants were hopeful of being able to resolve the matter with the respondents by compromise and discussion. However, the failure by the respondents to appear at the hearing gave the applicants no opportunity to mediate the matter or shift from their position. The applicants might have been willing to compromise on the issue of access to their land to remove the offending trees, yet without the respondents’ presence this was not a viable option.
The evidence of the tree assessor was that the trees that were assessed may have the potential to cause minor damage over time. This damage was not imminent and very unlikely to occur within the next twelve months. He further stated that should damage occur within that period it would be very minor, and limited to the dividing fence.
When weighing the competing proposals and evidence in this matter the Tribunal is guided by the provision of s 72 of the NDR Act which states:
a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved
What are the appropriate orders?
For the reasons outlined above the Tribunal is satisfied that the application in relation to the eight trees identified by the applicants as causing any significant ongoing and unreasonable interference and possible damage to the applicants property is unfounded. The trees should not be removed as there is no compelling evidence to support such action.
The Tribunal accepts that the Conclusion and Recommendations contained in the tree assessor report are for the benefit of the tree keeper. The recommendations that there be some trimming of branches, pruning of trees to the fence line and relocation of other trees are works that may be carried out at the tree keeper’s discretion and are not stipulations for the resolution of the application. There is therefore no evidence that there is likelihood that the trees would cause significant ongoing and unreasonable interference or imminent damage to the applicants use and enjoyment of their land within the next 12 months.
Orders
The application is dismissed.
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