Oliaro v Ross
[2017] QCAT 286
•21 June 2017
| CITATION: | Oliaro v Ross [2017] QCAT 286 |
| PARTIES: | Angelo Oliaro (Applicant) |
| v | |
| Dianne Leigh Ross (Respondent) |
| APPLICATION NUMBER: | NDR072-16 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATES: | 7 April 2017 and 2 June 2017 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 21 June 2017 |
| DELIVERED AT: | Hervey Bay |
| ORDER MADE: | 1. The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the bloodwood tree (marked as ‘C’ on the site plan attached to the expert report of David Roberts dated 10 September 2016) within 28 days, and take appropriate action to prevent regrowth. The work is to be undertaken by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist. 2. The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the dead eucalypt tree on the tree keeper’s property (adjoining the driveway to the applicant’s property) within 28 days. The work is to be undertaken by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist. 3. The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the co-dominant trunk (that being the trunk that encroaches over the applicant’s property) of the lemon scented gum tree (marked as ‘A’ on the site plan attached to the expert report of David Roberts dated 10 September 2016) by a suitably qualified tree lopper, with appropriate insurance coverage, at its union, under the supervision of a suitably qualified arborist, within 28 days. 4. The tribunal orders the tree keeper of Lot 2 SP 126011 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to undertake maintenance work every twelve months with respect to the 22 cocos palms (or such number as it may be from time to time, to allow for an increase or decrease in the number of palms over time) as initially identified in the expert report of David Roberts dated 10 September 2016, by the removal of fronds and seed heads on each of the palms, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken by 30 June 2018 and then is to be undertaken by 30 June each year thereafter. 5. The tribunal orders the tree keeper of Lot 2 SP 126011 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to undertake maintenance work every twelve months with respect to the canopy of the trees situated on the tree keepers property and adjacent to and overhanging the fence line of the applicant’s property such that trees are trimmed above 2.5 m in height (or removed) as per an arborist’s recommendations, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken by 30 June 2018 and then is to be undertaken by 30 June each year thereafter. 6. The tribunal orders the tree keeper of Lot 2 SP 126011 to remove all dead branches on any tree on that property that encroaches the applicant’s property by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist, within 28 days. 7. Where not otherwise catered for by the tribunal orders, the tribunal orders the tree keeper to prune all trees (as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) on the tree keeper’s property to the fence line of the applicant (or successor in title) as per AES4373. 8. The tribunal orders the tree keeper to pay for all expenses associated with the carrying out these orders. 9. The tribunal authorises a person, including the applicant (or successor in title) or person appointed by the applicant (or successor in title) to enter the tree keeper’s land to carry out these orders. 10. If the applicant (or successor in title) intends to enter the tree keeper’s property (Lot 2 SP 126011) to carry out these orders or engage consultants to do so, then the applicant (or successor in title) must first give 14 days’ written notice to that effect to the tree keeper, at the tree keepers last known address. 11. If the applicant (or successor in title) undertakes work that should have been done by the tree keeper pursuant to the terms of this order, and incurs costs in doing so, then the tribunal orders the tree keeper to reimburse the applicant (or successor in title). 12. If the tree keeper reconfigures Lot 2 SP 126011 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration. 13. These orders remain in force and effect for 10 years. |
| CATCHWORDS: | ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where dispute exists between neighbours regarding tree – where respondent sought that member recuse themselves from hearing – where expert report sought regarding tree – whether order should be made for removal of tree Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48, s 49, s 52, s 59, s 60, s 61, s 62 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 |
| APPEARANCES: | |
APPLICANT: | Angelo Oliaro |
| RESPONDENT: | Dianne Leigh Ross |
REASONS FOR DECISION
Background and jurisdiction
This case involves a tree dispute between neighbours in a residential area.
The applicant is the owner of the property at 56 Honiton Street, Torquay in Hervey Bay. The respondent is the owner of a property at 58 Honiton Street, Torquay in Hervey Bay. The property description of the respondent’s property is Lot 2 SP 126011. It is a freehold property.
Adopting the terminology used in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act), the respondent is the ‘tree keeper’[1] and the applicant is the ‘neighbour’.[2]
[1]The Act, s 48.
[2]Ibid, s 49.
The term ‘tree keeper’ in the context of a dispute such as this is significant in that any order made against the tree keeper is binding not only upon the tree keeper at the time of the dispute, but the tree keeper of the subject land is burdened by the order for up to 10 years.
A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour's land.[3] Based on the reasons outlined in this decision, I find that the respondent has failed to fulfil her responsibilities as a tree keeper in this regard.
[3]Ibid, s 52(1).
A tree-keeper is responsible for ensuring that the tree does not cause –
(1)Serious injury to a person; or
(2)Serious damage to a person's land or any property on a person's land; or
(3)Substantial, ongoing and unreasonable interference with a person's use and enjoyment of the person's land.[4]
[4]Ibid, s 52(2).
Based on the reasons outlined in this decision, I find that the respondent has failed to fulfil her responsibilities as a tree keeper regarding these matters.
The applicant says that his land is affected by trees on the respondent’s land. After hearing the evidence in this case, I accept that basic proposition is correct.
Through mediation, the parties did come to an agreement however the respondent failed to fulfil her commitment under that agreement. While the discussions entered into between the parties during the mediation remain confidential to that process, the agreement struck by the parties through mediation is not a confidential document for enforcement purposes. It is enforceable where one party, in this instance the respondent, fails to comply with the agreement. The appropriate mechanism under the Act is for the applicant to continue with the tribunal litigation and seek a final order of the tribunal.
During the hearing, the respondent accepted that she failed to comply with the agreement, citing her financial inability to do so as the reason.
The applicant could not resolve the issue using the process under chapter 3, part 4 of the Act. The nature of the trees on the respondent’s land are such that it is not possible to resolve the dispute under that part of the Act.
In that sense, I accept that the parties could not resolve the issue.
By accepting these matters, the jurisdiction of the tribunal under part 5 of the Act to make orders to resolve matters about trees is enlivened.[5]
[5]Ibid, s 59.
The statutory power conferred upon the tribunal to make orders is broad. The tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the tribunal, land is affected by the tree.[6]
[6]Ibid, s 61.
The tree-keeper and neighbour are encouraged to resolve the issue informally. However, if they cannot, or if they did and the tree keeper fails to comply with the terms of the agreement, the neighbour may apply to the tribunal for a resolution of the issue.[7]
[7]Ibid, s 60.
The neighbour may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to QCAT for an order under section 66.[8]
[8]Ibid, s 62.
The tribunal may make an order under section 66 if it is satisfied of the following matters[9] —
(1)The neighbour has made a reasonable effort to reach agreement with the tree-keeper;
(2)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(3)to the extent the issue relates to the land being affected because branches from the tree overhang the land—
(4)the branches extend to a point over the neighbour's land that is at least 50cm from the common boundary; and
(5)the neighbour cannot properly resolve the issue using the process under part 4;
(6)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
[9]Ibid, s 65.
I am satisfied that the matters referred to in section 65 of the Act have occurred.
(1)The dispute is long-standing and the issue of the tree removal was first raised by the applicant who, in using the terminology of the Act, is the ‘neighbour’) with the tree keeper in 2014.
(2)The council does not have a local law dealing with a tree dispute issue.
(3)There are many trees that extend over the neighbour’s land at least 50cm from the common boundary with the property owned by the tree keeper.
(4)The consent or other authorisation from a government authority is not needed to carry out work on the trees.[10]
(5)The only entity that the neighbour was required to provide with a copy of the application, was the tree keeper (the respondent).
[10]For example, such consent or authorisation may be based on a local law, the Nature Conservation Act 1992 (Qld), or the Vegetation Management Act 1999 (Qld).
Accordingly, in my view the tribunal has jurisdiction to deal with the matter and make an order in this case.
Recusal application
The tribunal heard this matter over 2 days; 7 April 2017 and 2 June 2017.
At the commencement of the hearing, on 7 April 2017, I disclosed that I have had prior contact with the applicant. As a long-term resident of Hervey Bay, I am known to many individuals, including the applicant. I advised the respondent that I was aware that the applicant is a town planner. I advised that I have not acted for or been professionally involved with the applicant, however I had infrequent contact with him many years ago.
The respondent was happy to proceed.
On 24 May 2017, being nine days before the scheduled date for the second day of the hearing (2 June 2017), the respondent brought an application for miscellaneous matters, seeking an order that I recuse myself.
In her application, the respondent sought an order from the tribunal in the following terms:
To replace the member hearing the tribunal with another on the grounds of the following recent hearing points;
1) Conflict of Interest and unfair hearing
2) Not providing fair time for myself to rebut the argument
3) Not providing the QCAT appointed Arborist a fair hearing
4) Advising of an intended ruling in favour of the Applicant (Mr Oliario) before all fact and arguments were heard.
5) Ignoring the expert evidence given (QCAT arborist's findings) to make a decision or order.
The reasons I seek these directions are:
6) Member Milburn has known the applicant for some time and met on a regular basis and from the hearing procedures appears there is a 'conflict of interest' due to the unreasonable amount of leeway being given to Oliaro.
7) As Member Milburn let Oliaro present his argument in very long segments, he did not provide me with equal amount of time to rebut his argument.3) Not contacting the arborists prior to the hearing therefore, not allowing the arborists access to his report to refresh his memory to provide a full and accurate answer to the questions. 4)Advising the hearing a decision/advising of court orders, before the hearing, before all the facts and arguments have been heard 5) Ignoring the expert evidence given (QCAT arborist's findings) to make a decision or order.
I dealt with the recusal application at the commencement of the second day of the hearing. I announced my decision to dismiss the application and continue to hear the matter. My decision to continue is based on the following reasons:
(1)I acknowledge that it is important that justice is seen to be done.
(2)Tribunal members must be ready to discharge their duties independently and fairly.
(3)When hearing the matter, tribunal members must provide procedural fairness to the parties.
(4)However, tribunal members should not be quick to accede to requests from parties to recuse themselves.
(5)To do so, risks the perception, and perhaps the reality, that a party will believe that a different member may deal with their case in a more favourable manner.
(6)I accept that the requirement to proceed independently and to deal with the matter impartially is a paramount consideration.
(7)I reject the arguments by the respondent that I exhibited bias in hearing the matter, based on my prior contact with the applicant.
(8)I was from the outset, and remained through the hearing, independent and impartial.
(9)On the first day, the respondent had given her evidence. When asked if she intended to give further evidence, the respondent said it was getting late, she was distracted as people were packing up around her and she needed to leave to move her car. She went on to say that she did not want to take any more time.
(10)The respondent did not raise any issues about my involvement in the matter on the first day of the hearing.
(11)The respondent did not raise the matter of the allegations contained in her application until nine days before the commencement of the second day of the hearing.
(12)I did indicate to the parties, for reasons that will become apparent as I proceed in this decision, that I would make an order against the respondent based on the evidence presented to the tribunal. I made it clear to the parties that based on the evidence presented to me, the only issue to be resolved would be the extent to which I make an order against the respondent (or more specifically, the tree keeper).
(13)In doing so, I invited the respondent to consider her position, particularly given that she gave evidence of her desire to seek subdivisional approval with respect to her property.
(14)I advised the parties that it is not too late for them to discuss a potential settlement, by consent, prior to or up until the commencement of the second day of the hearing.
(15)For reasons that will become apparent, I decided to accept the expert evidence of the tribunal appointed arborist.
(16)I made my statement to the parties that if the matter was to proceed I will make an order against the respondent based primarily on the expert evidence of the tribunal appointed arborist.
(17)The applicant should not be burdened with having to run his case again in front of a different member.
(18)In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court held that the apprehension of bias must be real and not a remote possibility.
(19)Tribunal members have a duty to continue. Tribunal members should not disqualify themselves other than for proper reasons.
(20)My announcement of my previous contact with the applicant, and my comment at the end of the first day of the hearing to the effect that I would make an order against the respondent must be considered objectively. That is, would a fair minded lay observer consider that there exists a reasonable apprehension of bias.
(21)There was no evidence that I harboured any ill feeling towards the respondent.
(22)There was nothing upon which a reasonable person would conclude that I might not consider the issues between the parties with anything but an open, impartial mind.
(23)There was no logical basis upon which to conclude that there exists a real possibility that I would have any reason to be ill-disposed towards the respondent, or be unable to bring an impartial mind to the resolution of the matters that affect her.
(24)The delay in making the application for recusal was not explained.
Application for a refund of arborist’s fees
Between the first and second hearing days in this matter, the applicant also brought an application for a miscellaneous matter. That was an application for a refund of the arborist’s fees.
In short compass, the applicant argued that because the arborist was not in attendance in person and was apparently not given prior notice of the hearing, that the evidence of the expert suffered as a result, to the point where he should receive a refund of his share of fees paid for the expert.
I reject the application of the applicant, and gave a ruling to that effect on the second day of the hearing.
I am not satisfied that the fee paid by the participants to the arborist was intended to cover the time of the arborist in giving evidence. In my view, the fee paid by the parties to the arborist was for the report.
In any event, the argument by the applicant for refund fails on the basis that the expert did give professional and valuable expert opinion evidence in this matter.
While I accept that the expert did give evidence by telephone, rather than in person, that is a generally accepted practice for the evidence of an expert. The quality of the evidence was not diminished as a result.
While I accept that the expert was caught by surprise, I am satisfied that the expert quickly could recall, in detail, this case, his expert report and the trees, which were the subject of the application.
Application by the respondent to give further evidence
The third application that I dealt with at the commencement of the second day of the hearing was by the respondent.
The respondent sought the permission of the tribunal to give further evidence. She raised issues about the difficulties that she faced on the first day of the hearing when giving evidence by telephone from her place of work. She said that she was distracted, as people were moving around her. She also said that had to move her car at approximately 4 PM in the afternoon and could not proceed beyond that time.
While she acknowledged that she had finished giving her evidence on the first day of the hearing, she thought it was appropriate and necessary for her to continue and provide further evidence.
The tribunal notes that the respondent ought to have appeared at the tribunal in person on the first day of the hearing. The tribunal notes that she did not attend in person by the commencement time of the hearing on the first day. The tribunal contacted her by telephone at her place of work, which caught her by surprise. She indicated she had forgotten about the tribunal hearing. She applied to appear by telephone and that application was granted, although the applicant opposed it.
To that extent, the applicant received a considerable indulgence.
Despite the applicant’s objections, I did grant the respondent’s application to give further evidence. I did so, in part, given that I had indicated to her at the end of the first day when she had given her evidence that I would make a finding against her.
I allowed her 30 minutes to present further evidence and I allowed the applicant 30 minutes in cross examination. I rejected the applicant’s submission that he should be allowed more than 30 minutes for cross examination purposes, given that the respondent was not limited in the time available to her in cross-examining him.
The expert’s report
The tribunal received a report from expert arborist David Roberts who certified that he attended at the subject address on 10 September 2016. His report in the form of a QCAT tree assessment report was dated 10 September 2016. As indicated earlier, subject to modification through evidence given during the hearing, I accept the recommendations and information contained in the tree assessment report.
The primary issues addressed in the report relate to an allegation of ‘serious damage to the neighbour’s land or any property in the neighbour’s land’ and ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land'.
The report writer referred to the applicant’s complaints of the risk of injury and damage from overhanging vegetation and excessive shading and leaf drop into the applicant’s property.
In his report and during his oral evidence to the tribunal, the expert referred to his obligations as an expert and the provisions of the Act. I am satisfied that the expert is independent and qualified to give opinion evidence with respect to relevant considerations referred to in the Act.
I accept Mr Robert’s opinion that the respondent’s trees affected the applicant’s land.
I accept Mr Robert’s opinion that his recommended remedial action is done in the knowledge of the requirements of the Act, namely to:
(1)prevent serious injury to any person, or
(2)remedy, restrain or prevent –
(a)serious damage to the applicant’s land or any property on the applicant’s land, or
(b)substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land.
The expert did not give much weight to issues to do with excessive shading and leaf drop into the applicant’s property. The conclusion that ‘the amount of shading that the vegetation provides over the applicant’s dwelling is not considered to be excessive’ is accepted by the tribunal.
The tribunal does not make its order based in any way on the allegation of the applicant about adverse effects to him because of shading, and the dropping of leafage is a minor issue.
The vegetation of concern related primarily to a planted row of mixed species that extended the length of the dividing fence line. The meaning of a tree as defined in the Act is broad.[11] The ‘trees ‘identified in the respondent’s property comprised of the following species:
(1)Cocos palms;
(2)Lemon scented gums;
(3)Moreton Bay fig;
(4)Weeping fig;
(5)Brown bloodwood; and
(6)Grey ironbark.
[11]The Act, s 45.
Cocos palms are listed on the Fraser Coast Regional Council’s weed management plan as an environmental weed and regarded as undesirable and not to be planted in areas of high ecological significance.
The stand of vegetation ranged in height to 14 m and ran for the length of the property boundary. The vegetation from the stand overhung into the applicant’s property by up to 5 m in some areas.[12]
[12]Tree Assessment Report, [2.1].
The most recent pruning work was carried out to comply with AES 4373 Pruning of Amenity Trees, but prior pruning works had resulted in lopping that did not comply with this standard.[13]
[13]Ibid, [2.1].
The report writer identified issues to do with the risk of injury and damage from overhanging vegetation. Mr Roberts identified that the cocos palms were more than 10 m in height and although not self-cleaning palms, the dead fronds and seed heads do eventually fall as their attachment to the palm trunk degrades. The likelihood of the fronds falling onto the applicant’s property is almost certain with the consequences being minor (low to medium dollar loss). The risk assessment score was high and remedial action was recommended.[14]
[14]Ibid, [2.2].
A lemon scented gum (marked ‘A’ on the site plan attached to the report) is a 13-m high co-dominant tree. The tree contains a defect at the co-dominant trunk union, which is split but is not entirely controlled. The report writer recommends that the area needs to be monitored for visual signs of trunk splitting, particularly post storm events. The report writer concluded that the likelihood of failure was possible, and the consequences are minor. The risk assessment score is medium. The report writer also noted an active crow’s nest within the tree.[15]
[15]Ibid, [2.2].
The ironbark (marked ‘B’ on the site plan attached to the report) had been previously lopped many years ago. The resulting regrowth has become endocormic and the report writer viewed it as a sound attachment. He assessed the risk associated with that tree as low.[16]
[16]Ibid, [2.2].
The bloodwood (marked ‘C’ on the site plan attached to the report) has been recently lopped. Epicormic growth is evident and the report writer recommends that it be removed to prevent an increasing likelihood of failure and damage to the applicant’s property.
The report writer reported that other trees appeared sound.[17]
[17]Ibid, [2.2].
The report writer suggested that there are a few ways to mitigate the risk associated with the falling palm fronds and seed heads. That is, to undertake regular maintenance to prune and remove the outside fronds and deseed the palms. He provided his opinion that this should occur at least every 12 months. An alternative is to remove the cocos palms altogether. From an economic perspective, he provided an opinion that the likely ongoing cost of annual maintenance compared to the removal of the palms is preferable.
The report writer provided the following specific recommendations in his report:
(1)That all 22 cocos palms have an annual removal of fronds and seed heads by qualified (minimum level III) arborist, with appropriate insurances to ensure that the dead fronds do not fall onto the applicant’s property.
(2)That the bloodwood marked ‘C’ be removed and treated to prevent regrowth.
The expert’s evidence at the hearing
At the hearing, the report writer expanded upon the commentary contained in his report, and made further recommendations:
(1)That a dead eucalypt tree on the respondent’s property (adjoining the driveway to the applicant’s property) should be removed.
(2)That dead branches on trees that overhang the applicant’s property should be removed.
(3)That the lemon scented gum be removed or the branch of the lemon scented gum that overhangs the applicant’s property should be removed.
(4)That trees (as defined in the Act) on the respondent’s property should be pruned to the fence line, as per AES 4373.
(5)That the canopy of the trees situated on the respondent’s property and adjacent to the fence line of the applicant’s property should be trimmed above 2.5 m in height (or removed) regularly as per an arborist’s recommendations.
When tested, the expert did go further with his recommendations than as outlined in his report. Significantly, he changed his position when referring to the lemon scented gum. I accept his recommendations as they were modified during the hearing.
The applicant’s case
The applicant produced evidence to the tribunal, by reference to aerial imagery, showing the progressive growth of overhanging branches over his pool recreation area.
While he had previously attended to removal of overhanging branches from trees situated on the respondent’s property, due to health issues (back) he has not attempted to remove any overhanging branches since 2013. That is, save for some low-level fig branches adjoining his property.
The applicant’s case is that the respondent should now accept responsibility for the management of the tree impacts onto his property. Given his health issues, he is no longer able to attend to those matters progressively personally.
Since 2013, there has been a progressive growth of the tree canopy adjoining his property.
The lemon scented gum with the defective tree branch (described by the tree assessor as having a co-dominant trunk which has split and is not entirely controlled) overhangs the applicant’s pool area. A new sewer line with a depth of approximately 2 m is located near the lemon scented gum and it would certainly have damaged significant proportions of the tree’s root systems. The long-term viability of this defective tree following this root damage is of concern regarding its longevity and identified safety impacts to the property.
The ironbark trees and fig trees adjoining his house have also expanded the canopy horizontally over the roof of his house.
The density of tree growth overhanging his property is excessive.
The removal of all tree canopies overhanging his property above 2.5 m in height will alleviate the amenity impacts and improved enjoyment and use of his property.
The 9 AM Wind Rose located at the Hervey Bay airport used by the Bureau of Meteorology for detecting the direction and speed of winds in the locality demonstrates that most of the wind (60%) comes from the south-west, south and south-east direction. Westerly winds are minor and average 4% of the time with wind speeds predominantly less in the wind speed from the source of most of the wind. Based on this information, given the respective positioning of the properties, the prevailing breeze adversely affects his property in that it promotes falling tree trash from the respondent’s trees onto his property.
The respondent’s case
The respondent says that she has attempted to work cooperatively with the applicant and was doing so when the applicant filed a notice of dispute with the tribunal.
The trees that she owns on her property are well-established. The trees were established before the applicant acquired his property.
The applicant’s property consists of gum trees, numerous palm trees including cocos palms, as does his neighbours on the other side, and across the road on 5 acres of property there are many gum trees.
The respondent disputes the existence of property damage to the applicant caused through her trees.
The respondent says she is a responsible landowner and as a property manager she is renting her property. She visits the property regularly.
The respondent says that cocos palms are not self-cleaning which means that the leaves when dead emit a light brown colour and hang from/hug the trunk of the tree for many months before falling to the ground.
On 23 March 2016, the respondent enlisted an arborist to cut and remove slightly overhanging limbs.
The wind direction generally comes from the other side of the applicant’s property and not from her side.
The respondent, like the applicant, sought an order as to costs. The only identifiable costs are the arborist’s costs, amounting to $755 per participant. Her argument was that if successful, the tribunal should make an order compelling the applicant to pay this amount to her.
The respondent sought an order that no trees be removed. Her argument was, in short, that no tree should be removed and no branches should be cut.[18]
[18]Response (part D).
Orders the tribunal may make
The tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour's land —
(1)to prevent serious injury to any person; or
(2)to remedy, restrain or prevent —
(a)serious damage to the neighbour's land or any property on the neighbour's land; or
(b)substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land.[19]
[19]The Act, s 66.
Amongst other things, the tribunal may also make an order to compel a party do any of the following —
(1)require or allow the tree-keeper or neighbour to carry out work on the tree on an occasion or on an ongoing basis;
(2)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; or
(3)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the neighbour's land.[20]
[20]Ibid, s 66(5).
Conclusion and orders
The objects of this Act are—
(1)to provide rules about each neighbour's responsibility for dividing fences and for trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and
(2)to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.[21]
[21]The Act, s 3.
In many ways, this is a simple case, in that we have a tree assessment report, supplemented by the oral evidence of an expert. As indicated, I intend to make orders that are consistent with the report and evidence of the expert.
The respondent has not worked cooperatively with the applicant in attempting to resolve this dispute. While she did strike an agreement with the applicant, due to her own financial constraints, she did not comply with the agreement.
I find that the applicant’s land is affected by many trees on the respondent’s land and the applicant could not resolve the process under part 4 of the Act.
I find that the applicant attempted to resolve the issue informally, then applied to the tribunal for resolution of the issue appropriately.
I find that the tribunal has jurisdiction to hear and decide matters in relation to many trees on the respondent’s land that affect the applicant.
I find that the applicant has served the notice application appropriately.
I find the applicant has made a reasonable effort to reach agreement with the tree keeper, that the applicant has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process, that to the extend the issue relates to land being affected because branches of trees overhanging land – the branches extend to a point over the applicant’s land that is least 50 cm from the common boundary, and the applicant cannot properly resolve the issue using the process under part 4 of the Act.
For this hearing, the respondent is the tree keeper.[22] The Act provides that for a property that is a lot recorded in the freehold land register under the Land Title Act 1994, the tree keeper is the registered owner of the lot under that act. At the date of the hearing, that was the respondent. The orders that I make impose a direct obligation upon the tree keeper of the land on which the trees, the subject of the orders, are situated. That is, the obligation contained in this order is imposed on the registered owner of the lot, whomever that may be.
[22]Ibid, s 48.
I find that the respondent’s trees affect the applicant’s land. The applicant’s land adjoins the respondent’s land, on which the tree is situated.
The respondent’s trees affect the applicant’s land because branches from trees overhanging the applicant’s land and the respondent’s trees have caused, and are causing, and are likely within the next 12 months to cause –
(1)serious injury to a person on the land; or
(2)serious damage to the land or any property on the land; or
(3)substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of the land.
I find that it is appropriate in relation to many trees affecting the applicant’s land to make orders to prevent serious injury to any person and to prevent serious damage to the applicant’s land or any property in the applicant’s land and prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land.
A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's tree.[23] I find that the respondent has failed to fulfil her responsibilities as a tree keeper.
[23]The Act, s 41 .
In making my decision, my primary consideration is the safety of people.
In making my decision, I have determined that a living tree should not be removed or destroyed unless the issue relating to the tree cannot be otherwise satisfactorily resolved.
In making my decision, I have considered the general matters outlined in section 73 of the Act.
In making my decision, I have considered the impact of recent weather events, however I am mindful of risks associated with the respondent’s trees in the event of a cyclone or other extreme weather event.
In making my decision, I find that the respondent has taken minimal steps to prevent or rectify potential injury or damage or the likelihood of injury or damage.
I note the respondent’s position is inconsistent. She says that she accepts the report of the tree expert, yet her position is that the tribunal should not make any orders to remove any trees or any branches.
In making my orders I have considered the fact that trees have existed before the applicant acquired his land.
In making my orders, I am mindful of the penalty provisions that apply for failure to comply with an order.
In making my orders, I note that they remain effective before lapsing 10 years after the date on which the order was made.
I make no order as to costs (including the cost of the arborist report) in this matter.
I make orders in the following terms:
(1)The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the bloodwood tree (marked as ‘C’ on the site plan attached to the expert report of David Roberts dated 10 September 2016 within 28 days), and take appropriate action to prevent regrowth. The work is to be undertaken by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist.
(2)The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the dead eucalypt tree on the tree keeper’s property (adjoining the driveway to the applicant’s property) within 28 days. The work is to be undertaken by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist.
(3)The tribunal orders the tree keeper of Lot 2 SP 126011 to entirely remove the co-dominant trunk (that being the trunk that encroaches over the applicant’s property) of the lemon scented gum tree (marked as ‘A’ on the site plan attached to the expert report of David Roberts dated 10 September 2016) by a suitably qualified tree lopper, with appropriate insurance coverage, at its union, under the supervision of a suitably qualified arborist, within 28 days.
(4)The tribunal orders the tree keeper of Lot 2 SP 126011 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to undertake maintenance work every twelve months with respect to the 22 cocos palms (or such number as it may be from time to time, to allow for an increase or decrease in the number of palms over time) as initially identified in the expert report of David Roberts dated 10 September 2016, by the removal of fronds and seed heads on each of the palms, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken by 30 June 2018 and then is to be undertaken by 30 June each year thereafter.
(5)The tribunal orders the tree keeper of Lot 2 SP 126011 to engage a suitably qualified arborist (minimum level III), with appropriate insurance coverage, to undertake maintenance work every twelve months with respect to the canopy of the trees situated on the tree keepers property and adjacent to and overhanging the fence line of the applicant’s property such that trees are trimmed above 2.5 m in height (or removed) as per an arborist’s recommendations, with the first instance of the maintenance work to be undertaken within 28 days. The second instance of the maintenance work is to be undertaken by 30 June 2018 and then is to be undertaken by 30 June each year thereafter.
(6)The tribunal orders the tree keeper of Lot 2 SP 126011 to remove all dead branches on any tree on that property that encroaches the applicant’s property by a suitably qualified tree lopper, with appropriate insurance coverage, under the supervision of a suitably qualified arborist, within 28 days.
(7)Where not otherwise catered for by the tribunal orders, the tribunal orders the tree keeper to prune all trees (as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) on the tree keeper’s property to the fence line of the applicant (or successor in title) as per AES4373.
(8)The tribunal orders the tree keeper to pay for all expenses associated with the carrying out these orders.
(9)The tribunal authorises a person, including the applicant (or successor in title) or person appointed by the applicant (or successor in title) to enter the tree keeper’s land to carry out these orders.
(10)If the applicant (or successor in title) intends to enter the tree keeper’s property (Lot 2 SP 126011) to carry out these orders or engage consultants to do so, then the applicant (or successor in title) must first give 14 days’ written notice to that effect to the tree keeper, at the tree keepers last known address.
(11)If the applicant (or successor in title) undertakes work that should have been done by the tree keeper pursuant to the terms of this order, and incurs costs in doing so, then the tribunal orders the tree keeper to reimburse the applicant (or successor in title).
(12)If the tree keeper reconfigures Lot 2 SP 126011 (for example, through subdivision), then these orders continue to have effect over the property or properties created because of the reconfiguration
(13)These orders remain in force and effect for 10 years.
Site Plan attached to the expert report of David Roberts dated 10 September 2016:
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