Prendegast v Pearce - [2013] QCAT 98

CITATION:

Prendegast & Ors v Pearce [2013] QCAT 98

PARTIES:	Debra Anne Prendegast Robert Prendegast Joseph Bowen (Applicants)
v
Myrna Pearce (Respondent)

APPLICATION NUMBER:

NDR027-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

22 February 2013

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

22 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Jacaranda Mimosaefolia (Jacaranda) tree, and the Schefflera Actinophyllia (Umbrella) tree located on and adjacent to the boundary between 156 and 158 Monaco Street, Broadbeach Waters, are to be completely removed.

2. The registered owners of the land at 158 Monaco Street are to arrange for the work to be conducted.

3. The removal is to be conducted by an appropriately qualified insured arborist, with a minimum qualification of an Australian Qualifications Framework Level 3.

4. The registered owner of Lot 156, Monaco Street, Mrs Pearce, will give access to the arborist engaged to carry out the removal.

5. The registered owners of the lot at 158 Monaco Street will take all reasonable steps to ensure compliance with s 94 of the Neighbourhood Disputes Resolution Act 2011 by:

(a) providing written notice of their intention to enter the land and carry out the work at least seven days prior to entering the land to Mrs Pearce; and

(b) directing the arborist to enter the land for the purpose of completing the work only at a reasonable time and only to a reasonable extent needed to carry out the work;

6. The registered owners of the lot at 158 Monaco Street are to pay the full cost of the removal of the trees.

7. The removal is to be carried out within six months of the date of this order.

CATCHWORDS:

TREE DISPUTE – where tree on boundary – where tree preventing construction of a dividing fence – where roots causing interference – where neighbour to arrange for removal of tree – where neighbour agrees to pay full cost of removal

Neighbourhood Disputes Resolution Act 2011, s 66, s 94

APPEARANCES and REPRESENTATION (if any):

APPLICANTS:

Debra Anne Prendegast appeared in person.
Robert Prendegast appeared in person.
Joseph Bowen appeared in person.

RESPONDENT:

Myrna Pearce appeared in person.

REASONS FOR DECISION

There are two trees situated on the boundary between 156 and 158 Monaco Street, Broadbeach Waters. They are a Jacaranda Mimosaefolia (‘Jacaranda’) tree and a Schefflera Actinophyllia (‘Umbrella’) tree.
The Jacaranda tree is predominantly located on the property owned by Mrs Myrna Pearce at 156 Broadbeach Waters, but continues across the boundary to the property at 158 Monaco Street, which is owned by Ms Debra Prendegast, Mr Joseph Bowen and Mr Robert Prendegast as joint owners.
There was a third tree the subject of the application, a mango tree, but at a compulsory conference the parties agreed that no order would be required in relation to that tree. This matter therefore concerns only the Jacaranda tree and the Umbrella tree.
I have heard evidence from the Applicants, Ms Prendegast and Mr Bowen, and they have submitted material which includes the report of the arborist appointed by the Tribunal in this matter, and a report of a builder in relation to a proposed fence.
I have also heard evidence from Mrs Pearce, the owner of the property, and the principal tree-keeper. As the tree crosses the boundary in this matter, there are co-keepers of the tree.
Ms Prendegast has given evidence that the trees are causing substantial interference with her property. The principal issue is in relation to the construction of the fence. There is presently an old timber fence which seems to be of the order of 24 years old, which is in poor repair, and has been lifted by the tree roots.
It is the intention of the owners of the property at 158 Monaco Street to demolish the existing fence, which a survey conducted in the course of these proceedings by Vennon & Vennon has revealed is substantially on their property, with a new fence on the proper boundary between the two properties. That new fence is to be a suitable fence for the neighbourhood.
Mr Bowen gave evidence that he is desirous of building the new fence as soon as possible after the resolution of this matter. The reasons for building the fence related to privacy and the containment of some dogs.
Mrs Pearce acknowledged that a new fence was needed and acknowledged that the Jacaranda tree is in the way of the fence.
The question then becomes: What is to be done in relation to the trees?
The arborist in his report has referred to the encroaching of the Jacaranda tree onto the adjoining property and the damage that it is causing to the dividing fence. The Jacaranda tree is pressing against the fence and it would not allow new fence construction in its present state.
The fence contractor has given advice to Mr Bowen that he requires a gap of 100mm of space in order to build the Colorbond fence.
The conclusion of Mr Bowen and Ms Prendegast is that the two trees need to be removed to construct the fence. That is also the conclusion of the arborist appointed by the Tribunal, Mr Anthony Cochrane.
Mrs Pearce agrees that something needs to be done to the tree to enable the fence to be built, but her proposed solution is that the trunk of the Jacaranda tree be cut into vertically, to enable sufficient space to be created for the fence to be built.
Mr Cochrane in his report states as to that proposal:
The tree-keeper has proposed to cut the main stem back further at the base basal limbs. Secondary limbs having already been cut off the base of the trunk, to allow new fence construction....
and he comments:
This course of action would not be recommended as it would create a major wound at ground level that will deteriorate over time, structurally compromising the tree.
The prospect that then arises is that this substantial wound to the tree will cause the tree to die in the future.
Mrs Pearce submits that an appropriate course is to cut into the trunk sufficiently to allow the fence to be built, and then to wait and see if the tree dies or not.
The problem with the proposal of Mrs Pearce is that, once the tree starts to die, there is then a risk that as limbs, or the bulk of it, become unstable and deteriorate, as Mr Cochrane predicts, and structurally compromises the tree, that it will constitute a danger to people and property. I therefore do not consider that the proposed solution of Mrs Pearce is an acceptable solution.
Section 66 of the Neighbourhood Disputes Resolution Act 2011 provides that an order can be made if a tree is causing substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land.
In this case there are two matters substantially affecting the land owned by Ms Prendegast and her co-owners. Firstly, there is interference with their ability to build a fence and enjoy their own land, as the tree is partially on their land.
Secondly, there is an issue as to the roots which have previously been found to extend to the walls of their house at 158 Monaco Street. Those roots were identified by Ms Prendegast as definitely being Jacaranda roots, and she had those cut back at the time of doing renovations as they prevented work being done.
There was cracking of the house noticed adjacent to the roots, but there is no clear evidence indicating what caused that cracking. Mrs Pearce suggests it may have been from land subsidence rather than an effect of the roots. In any event, the presence of the roots, and the likelihood that they will re-grow, indicates that the roots in themselves also constitute an ongoing interference with the neighbours land.
Having regard to those matters, I am satisfied that two trees, the Jacaranda tree and the Umbrella tree, constitute substantial, ongoing and unreasonable interference with the adjoining land.
I accept the evidence of Mr Cochrane that there is no option in this matter other than complete removal of those two trees. The conclusion therefore is that the two trees do have to be removed.
The next question is as to who does the work, and who pays for the work. Mrs Pearce has indicated a very strong reluctance to having the trees removed. If an Order was made requiring her to remove the trees, then there is a strong likelihood that she would not be cooperative with that order, and that would lead to further difficulty and delay as the neighbours would have to get the local authority involved.
I consider that the simplest solution is to authorise the neighbours, who are also co-keepers of the tree, to arrange and conduct the work. Mrs Pearce would then have to cooperate with that work being done.
Ms Prendergast has submitted that she is agreeable to paying the full cost of the removal, so as not to place stress upon Mrs Pearce who is a pensioner.
I appreciate that this has been a very traumatic matter for all of the parties. However, there does have to be a resolution. Once the matter is resolved, then hopefully Mrs Pearce can go on to live in harmony with her neighbours. They have extended an olive branch by indicating they are prepared to pay the full cost of removal of the trees.
Mrs Pearce has done all she could to save the trees. I know she feels that a family responsibility falls upon her, as her family planted the trees, and they have sentimental meaning to her.
At the end of the day though, time moves on. There are rights within the Act, and the Tribunal has to enforce those rights, and what has to happen has to happen. Hopefully, once the trees are removed and the new fence is in place, the parties can all go quietly about their lives.
The Orders that I make are as follows:
1.The Jacaranda Mimosaefolia (Jacaranda) tree, and the Schefflera Actinophyllia (Umbrella) tree located on and adjacent to the boundary between 156 and 158 Monaco Street, Broadbeach Waters, are to be completely removed.
2.The registered owners of the land at 158 Monaco Street are to arrange for the work to be conducted.
3.The removal is to be conducted by an appropriately qualified insured arborist, with a minimum qualification of an Australian Qualifications Framework Level 3.
4.The registered owner of Lot 156, Monaco Street, Mrs Pearce, will give access to the arborist engaged to carry out the removal.
5.The registered owners of the lot at 158 Monaco Street will take all reasonable steps to ensure compliance with s 94 of the Neighbourhood Disputes Resolution Act 2011 by:
(a) providing written notice of their intention to enter the land and carry out the work at least seven days prior to entering the land to Mrs Pearce; and
(b) directing the arborist to enter the land for the purpose of completing the work only at a reasonable time and only to a reasonable extent needed to carry out the work;
6.The registered owners of the lot at 158 Monaco Street are to pay the full cost of the removal of the trees.
7.The removal is to be carried out within six months of the date of this order.