Nguyen v Behrendorff

[2013] QCAT 204

CITATION: Nguyen v Behrendorff [2013] QCAT 204

PARTIES: Mrs Thi Ngoc (Alex) NGUYEN
(Applicant)
v
Mr Dave Behrendorff
(Respondent)

APPLICATION NUMBER:   NDR109-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On papers hearing

HEARD AT: Brisbane

DECISION OF: Professor Adrian Ashman, Member

DELIVERED ON: 25 March 2013

DELIVERED AT: Brisbane

ORDERS MADE:      1.   The application in relation to three Eucalyptus trees and one Jacaranda tree located on the tree keeper’s property at 42 Shanahan Parade Redbank Plains Queensland located near the boundary with 42A Shanahan Parade Redbank Plains is dismissed.

CATCHWORDS : 

TREE DISPUTE – where tree litter falling into neighbouring property – whether causing substantial, ongoing and unreasonable interference

Neighbour Disputes Resolution Act 2011 (Qld), s 66, s 71, s 72

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs Nguyen purchased a property in Redback Plains in 2008. On Mr Behrendorff’s adjacent property are four mature trees, three are Eucalyptus varieties and one is a Jacaranda. These species are known generally to shed leaves and/or bark on a regular basis during any year. The trees are now between 20 and 30 years old, with trunks approximately two metres from the boundary between the Nguyen and Behrendorff properties.

1. The Nguyens are concerned about the trees, primarily because they overhang the boundary fence by up to five metres and strew leaves and bark onto the Nguyens’ roof, blocking the gutters and drains, and clogging their water tank. As might be expected, when windfall builds up on the roof and in the gutters, insects take up residence and ultimately invade the house. The Nguyens have spoken and written to Mr Behrendorff asking him to trim branches from the trees as several have fallen during periods of high winds and/or storms.

1. Mr Behrendorff has not responded to the Nguyens’ request and they brought an application to the Tribunal to have the trees removed or to remove or prune the branches of the trees.

1. The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person or 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 order if the 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

1. The primary concern of the Neighbourhood Dispute Resolution 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]        Section 71.

   [4]        Section 72.

1. Section 73 of the Act contains additional considerations relating to, for example, the location of the trees, any historical or cultural significance, contributions to public amenity, and risk that might exist in the event of a cyclone.

1. In August 2012, 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 Nguyen’s application. An inspection was conducted by Mr Jeremy Young on 21 September 2012.

1. Mr Young identified the trees as two Eucalyptus tereticornis, a E. siderophloi, and Jacaranda mimosifolia. He identified the location of the trees as described in [1] and [2] and concurred with Mrs Nguyen that there was leaf litter, although he made no comment on the extent of litter evident.

1. Significantly, Mr Young stated that the trees appear structurally sound and there are no visible signs of predictable failure that might cause branches to drop. While Mrs Nguyen stated that branches have fallen into her yard, Mr Young suggests that this is not a likely event although he did not rule out that as a possibility. Mr Young continued in his report to suggest that there was no arboricultural reason to recommend the removal of the trees and no remedial work is recommended at this time.

1. As to the nuisance value of the trees, Mr Young stated that they were on the tree keeper’s property prior to the construction of the Nguyens’ home, that leaf litter will remain an issue while the trees remain regardless of pruning, and that regular maintenance would be necessary to ensure that gutters are cleaned. He noted that the water tank that Mrs Nguyen says is affected by leaf litter could be relocated to the opposite side of the house to shelter it from high levels of leaf litter and recommended the installation of gutter guards to reduce the need for regular maintenance.

1. Mrs Nguyen has not satisfied me the there is a serious risk of harm to any person or property. The inconvenience caused by the leaf and bark litter can be significantly reduced by the installation of gutter guards. It would appear from the photographs that Mrs Nguyen provided that maintenance is not routinely conducted.

1. Mrs Nguyen did comment on some shadowing from the trees but there is nothing to suggest that this constitutes severe obstruction.

1. Based upon Mr Young’s report, no order of the Tribunal is warranted to ensure that serious risk is not posed to any person or property by the tree keeper’s trees. The Tribunal dismisses the application.