Peterson v Brown - [2013] QCAT 148

CITATION:

Peterson v Brown [2013] QCAT 148

PARTIES:	Mr Alan Neville Peterson (Applicant)
v
Mr Stewart Brown (Respondent)

APPLICATION NUMBER:

NDR168-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Mr David Paratz, Member

DELIVERED ON:

19 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is dismissed.

CATCHWORDS:

Tree dispute – tree poisoned by neighbour – treekeeper refused to participate in processes of the Tribunal – no ongoing interference – no basis for making order

Neighbourhood Disputes Resolution Act 2011 s 66

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

Mr Peterson owns a house at 15 Sheldon Street, Nudgee. An adjoining house at 14 Primula Street, Nudgee, is owned by Mr Brown, who leases it out to a tenant.
There are three trees growing in the yard of Mr Brown. They are the main tree which is a Chinese Elm, growing 1 metre inside his property, and two other smaller trees, a Camphor Laurel and a White Cedar, growing at the base of the main tree. In addition, there are a number of young Chinese Elms close to the boundary.
Mr Peterson has filed an application seeking orders that the roots and branches of the trees be removed or pruned. He complains that the dividing fence is being damaged and that he is losing output on his solar panels because of shading.
A tree assessor, Mr Jeremy Young, was appointed by the Tribunal and made an inspection and report on 13 December 2012.
In an extraordinary email to the Tribunal, dated 04 December 2012, Mr Brown said as follows:
Reference your correspondence of 13 November 2012.
I have no confidence at all in the process as you have described it and I will not be investing any more of my time.
The system has been corrupted and manipulated and is now being used as a means to meet a private agenda.
Your indifference to a balanced approach and your inability to provide an even playing field is duly noted and as such, I won’t be in attendance nor will I be informing the tenant.
There is no indication on the file as to what has prompted Mr Brown to make such statements. He has not participated in the proceedings and did not attend the Directions Hearing on 27 February 2013.
A Direction was made that the application was to be decided on the papers without an oral hearing, with the intent that it be decided on the written material before the tribunal.
In his application, Mr Peterson says that he has talked to Mr Brown who agreed to lop the trees but did nothing, and who would not agree to share the cost or labour and would not meet him. He says that Mr Brown told him he could cut down whatever he liked, but that if he cut it down he would have the cost to remove it and to fix the fence.
Mr Peterson claims that he is losing output from his solar panels which were a major expense, and that 1/3 are affected.
A plan drawn on the application by Mr Peterson shows that the solar panels are installed on the section of his ‘L’ shaped roof which is the closest to the trees.
Mr Young reports that:-
2.2 The canopy of the main Chinese elm overhangs the boundary by 8 m and the rear wall of the house is 10m from the boundary. The canopy of the tree is declining in health. There is clear evidence of dead branch structure, limited new shoots and reduced extension growth. Root damage and staining of the roots is evident on the applicant’s side of the tree. It appears there has been some attempt to poison the tree and this is the likely cause of the declining health.
Mr Young concludes that it would appear that it was Mr Peterson that poisoned the tree. He attaches a photo of the tree which clearly shows the deadwood present in the crown. He says that, together with the thinning of the canopy, is typical of poisoning or herbicide damage where the dose has been insufficient to kill the tree outright.
Mr Young says that the dead wood will become hazardous and will require pruning to manage risk, and will require some maintenance within 12 months. As he was unsure what poison was used, it was difficult for him to determine the long term effect on the tree health.
Mr Young notes that the shading of the solar panels at the time of inspection was only marginally more than the shading that would have occurred at the time of their installation.
In relation to the fence, Mr Young observed that the tree was having an impact on the fence and this would continue. To address that issue, a new fence should be constructed with posts in different locations to bridge the existing root.
The Tribunal must be satisfied that an Order in relation to a tree is necessary to prevent serious injury, or substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land (s 66 Neighbourhood Disputes Resolution Act 2011).
Mr Peterson says that the tree is causing him unreasonable interference with the enjoyment of his land. Whether that is so, is muted in this case, as there is a likelihood that the tree is going to die, and therefore any interference will not be ongoing.
Section 72 of the Act provides that ‘A living tree should not be removed or destroyed unless the issues relating to the tree can not otherwise be satisfactorily resolved.’ In the normal course of events, with a healthy tree, a programme of pruning would keep the situation in order.
The interference that Mr Peterson refers to would not require removal of the tree. The first ground is that the dividing fence is being lifted, but Mr Young says that can be overcome by rebuilding the fence so that the supports bridge the root. The second ground is that solar panels are being shaded, but this arises from the position where Mr Peterson placed them.
Mr Young has said that the tree will require pruning, but has not made any recommendation as to the extent or manner of pruning.
This is not now a matter of ongoing interference. It is a matter of dealing with an impending dangerous situation. Both parties are on notice that the tree is likely to die, and there is an obvious danger looming to possibly both homes and persons in the vicinity of them, from falling dead branches. Action should be taken to resolve that situation by the parties, as they are both aware of the danger, and there would be liabilities arising and likely ramifications as to their insurance coverage.
As I am not satisfied however, that ongoing interference as a result of the normal processes of the tree will be caused, then an order on that basis is not justified.
Whilst it is foreseeable that there is a risk of serious damage to the neighbour’s land in the future from the dying tree, that is not the subject of this Application, and it is not appropriate that an order should be made against the tree-keeper at this time in this Application.
The latitude of the tribunal in this matter has been restricted by the apparent actions and attitudes of the parties. Neither of the parties has done themselves any favours by their conduct.
Mr Young is satisfied that Mr Peterson has poisoned the tree by damaging the root and applying poison to it. He has suggested that as it was Mr Peterson that poisoned the tree, that Mr Peterson should be partly responsible for the pruning cost.
That suggestion would be given serious consideration if an order were to be made, and perhaps an even more extensive order might be made that Mr Peterson should bear the full costs of pruning or removal.
If Mr Brown had co-operated in the proceedings, he could have consented to the tree being pruned or removed, but have contested as to who should pay for the cost of pruning or removal. If he had done so, there is a strong likelihood that Mr Peterson would have been ordered to pay a proportion, or all, of the cost, and that Mr Brown would have had to pay only a share or nothing, of those costs.
If Mr Peterson had not poisoned the tree, then he would not have exposed himself to a likely order as to payment of part or all of the pruning or removal costs. The tree may also have constituted an ongoing interference, and then the tribunal could have made an order.
By respectively taking the law into their own hands, and by failing to participate in the lawful processes of the Tribunal, Mr Peterson and Mr Brown have each diminished the protection and assistance of the processes of the Act and of the Tribunal in this Application.
The result is that these neighbours are now left to their respective liabilities and risks. Mr Brown now has a large and probably dying tree on his property, and no order requiring his neighbour to pay for its pruning or removal. Mr Peterson now has a large and probably dying tree adjoining his boundary, and no order requiring Mr Brown to do anything about it. The tree will cause problems within 12 months. This is a most unsatisfactory result, but one that the parties have brought onto themselves.
In the circumstances, the basis for an order to be made under s 66 of the Act is not made out, or is not appropriate, and the Application is dismissed.