Oberhoffer v Tarlton - [2013] QCAT 495

CITATION:		Oberhoffer v Tarlton & Anor [2013] QCAT 495
PARTIES:	Alexander Oberhoffer (Applicant)
V
Roger Tarlton and Diane Tarlton (Respondents)

APPLICATION NUMBER:

NDR 192-12

MATTER TYPE:	Other civil dispute matters
HEARING DATE:	13 September 2013

HEARD AT:

Maroochydore

DECISION OF:

Louise McDonald, Member

DELIVERED ON:

19 September 2013

DELIVERED AT:

Maroochydore

ORDERS MADE:

1. That the registered owners of lot at 30 Caroothool Place Mooloolaba will arrange for the removal of the two Cocos Palms subject to this dispute identified as trees 1 and 3 in the Report of Mr Inman of 9 February 2013.

2. That the cost of removal of trees 1 and 3 shall be born solely by the Respondents.

3. That the registered owners of lot 30 Caroothool Place will arrange for the annual pruning of the Cabbage palm to reduce the amount of dead palm fronds, flower spikes, and seed heads at their own cost.

4. The removal and pruning of the aforesaid trees is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualified Framework Level 3 Arborist.

5. The removal of trees 1-3 is to be carried out within 90 days of this order.

CATCHWORDS:

TREE DISPUTE - Neighbourhood Dispute Resolution Act 2011 - palm trees planted along boundary line - noxious weeds - protected species

Neighbourhood Disputes Resolution Act 2011

APPEARANCES and REPRESENTATION:

APPLICANT:	Alexander Oberhoffer
RESPONDENT:	Roger Tarlton

REASONS FOR DECISION

Mr Oberhoffer has approached the Tribunal seeking the removal of 12 palm trees planted along the fence-line of Mr and Mrs Tarlton’s property.
Mr Oberhoffer objects strongly to the debris which falls regularly from each of the palms, including palm fronds seed pods and fruits. He asserts the he is constantly picking up debris; the seed pods accumulate in the pool and cause the creepy-crawly to block. Because of this he asserts that he has to maintain his pool daily. The palm fronds overhang his yard by up to 4 metres in places. Fronds and debris fall from the trees on to the tin garage roof, causing noise at night.
Further, Mr Oberhoffer raises concerns about the large Cocos Palm identified as Tree 1 in the report of Mr Inman of 9 February 2013. It is rubbing against the roof capping of the garage, and he asserts that this is also causing cracking to the garage wall. He asserts that this damage will continue to worsen as the tree grows. He argues also that if the tree hasn’t caused damage yet, it will, being planted close to the garage, and must place force on the garage in high winds.
He seeks the removal of trees identified as trees 9, 10 and 11 growing at the rear of Mr and Mrs Tarlton’s property because the fence line has been built around them, and consequently misaligned. He seeks their removal, and rectification of the fence line. Mr Oberhoffer indicated that when he purchased the property some three years ago he did not notice the misaligned fence as it was obscured by plant growth which he has since cleared. He points out that trees 9 10 and 11 are going along the fence line, and points to Mr Inman’s report which notes flattening at the base of the fence to confirm this.
Mr and Mrs Tarlton have lived in the premises at number 30 for 25 years. Mr Tarlton advised the Tribunal that he planted each of the palms some 20- 24 years ago, and they were therefore present when the Oberhoffer family purchased number 28.
Mr Tarlton did not accept that Cocos Palm identified as tree 1 was the cause of the crack evident on Mr Oberhoffer’s garage. He argued that there was no evidence before the Tribunal that the crack was caused by the tree, and relied on Mr Inman’s report to confirm this. He stated that he had observed the extension built on the garage by the previous owner of number 28 Caroothool St approximately 18 years ago. He asserted the separation at the crack between the old and new brickwork was observable for over 10 years. He claimed this and the separation of the two concrete slabs at the join of the new extension suggest it is structural damage caused by poor building practices. Further, he emphasised that the tree was established long before the previous owner of number 28 Caroothool St built the garage extension.
Mr Tarlton placed before the Tribunal correspondence from Sunshine Coast Council dated 13 May 2013, which indicated that at the time of its construction the 1985 Maroochy Plan required a setback from the front boundary or a relaxation approval to build less than 6 metres from the front boundary. The extent of the approved work was unable to be confirmed. As the work is on the boundary between the premises, this letter does not appear to confirm that the garage is illegally built.
Mr Oberhoffer quoted correspondence from the previous owners who indicated that the structure had been approved according to the regulations at the time.
However, Mr Tarlton does not object to the removal of this tree. He accepts it is rubbing the garage roof flashing. However, he objects to bearing the full costs of removal.
Mr Tarlton contends that there is no need to remove the tree 9, 10, 11 as the installation of two posts either side of the cabbage palm by way of replacement would rectify the problem, and could be done at minimum cost. He denies that he should be responsible for the costs of this as he has paid for the costs of the most recent fence prior to Mr Oberhoffer acquiring the premises.
Further, he asserted that the Alexander palms identified as 2, 4, 5, 6, 7, 8 were established when Mr Oberhoffer took up residence and he had knowledge that palms were on growing near the fence line. For Mr Tarlton, they are decorative and consistent with the theme of the area. He agreed that the palm fronds overhang Mr Oberhoffer's property and stated that palm fronds from Mr Oberhoffer’s property overhang his property. He indicated some willingness to remove trees three and four during the hearing yet no consent was formalised.
The Tribunal must first be satisfied of its jurisdiction. Each of the palm trees are trees to which this Act applies. They are trees within the meaning of s 45 of the Neighbourhood Disputes Resolution Act 2011, (hereafter the Act), on land that is on the freehold register, and is not precluded by the provisions of s 42(3) and (4). Both parties own their land. The Respondents are the tree keepers in accordance with s 48 (1) (a) of the Act, being the registered owner of the land on which the tree is situated.
In order for QCAT to make an order, s 59 requires that Mr Oberhoffer’s land must be affected by a tree, and the resolution process under part 4 has been unable to resolve the issue. I am satisfied that the process of dispute resolution has been ineffective to resolve the dispute which has been ongoing for some time. Tensions remain high between the parties.
For Mr Oberhoffer’s land to be affected by the trees, according to s 46 of the Act, branches must overhang the land, and the tree has caused, is causing or is likely to have caused within the next 12 months
a)    Serious injury to a person on the land;
b)    Serious damage to the land or any property on the land; or
c)    Substantial ongoing and unreasonable interference with the neighbours use and enjoyment of the land;
and the land adjoins the land on which the tree is situated.
Mr Inman’s report indicates that trees 1 and 3 are Cocos Palms and are characterised as environmental weeds by the Sunshine Coast Council. This characterisation alone suggests that it will cause substantial unreasonable and ongoing interference. Further, Mr Inman concludes that tree 1 will cause ongoing damage in the future to the roof capping of the garage. Mr Inman concludes ongoing damage to the roof flashing will be caused by tree 1. Accordingly, trees 1 and 3 must be removed.
The misaligned fence which is laid around trees 9, 10 and 11 might be characterised as damage to the fence on the land. However, this cannot be characterised as serious damage.
The dictionary meaning of serious includes: “very great, bad, dangerous, harmful, or difficult to handle.” The misalignment cannot be considered serious within the common meaning of the word. Further the Tribunal notes s 72 of the Act requires a living tree should not be removed or destroyed unless the issue cannot be satisfactorily resolves. Mr Inman’s report indicates that there are alternatives to rectify the fence which could be sought before removal. The Tribunal concludes that it has no basis to order the removal of the palm trees 9-11 on the grounds of the misaligned fence.
Mr Inman’s report notes tree 10, a cabbage tree, is a protected species. He has noted a significant amount of seed pods and dead fronds in the canopy. He notes it has spikes on the frond stems. The excessive seed pods of this Cabbage Palm drop more than mere leaf litter where they interfere with the functioning of his pool equipment. The Tribunal accepts that the spiky fronds and extent of seed pods which affect his pool maintenance are a source of unreasonable and ongoing interference with the use and enjoyment of Mr Oberhoffer’s pool and garden area. The Tribunal is guided by s 72 noted above, and Mr Inman’s recommendation for annual pruning of the canopy of this protected species. Accordingly, the Tribunal makes orders for pruning.
Trees 2, 4, 5, 6, 7, 8 are identified as Alexander palms in Mr Inman’s report. He notes they overhang Mr Oberhoffer’s’ garage and cause noise from dropping of their fruit on the tin roof. He concludes they are not causing or likely to cause damage within the next 12 months. He notes that the leaf drop from the palms is a natural occurrence and should not be a basis for removal of the tree. Mr Oberhoffer contends that these trees cause unreasonable interference to his enjoyment of the land, through the noise of dropping fruit and fronds at night. The Tribunal may consider under s 75(d) of the Act whether the tree existed before the neighbour acquired the land. All evidence indicates that Mr Oberhoffer was aware that these palms lined the boundary at the time of purchase, and therefore the Tribunal does not find substantial ongoing unreasonable interference in relation to these palms. No order is made with respect to trees 2, 4 5, 6, 7, 8. Mr Tarlton expressed some willingness to remove some of these trees but no consent was reached. The Tribunal has no grounds to make an order in relation to these trees. At common law, Mr Oberhoffer retains the remedy of abatement to trim fronds of the Alexander Palms which overhang his property.
Pursuant to section 41(1) of the Neighbourhood Disputes Resolution Act 2011, a tree keeper, that is the landowner of the property on which the tree is growing, is responsible for the proper care and maintenance of the tree. Accordingly Mr Tarlton must bear the costs related to the removal of the palms noted to be environmental weeds, and the pruning of the Cabbage Palm.