Riordan v Deans

[2018] QCAT 210

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Riordan v Deans & Anor [2018] QCAT 210

PARTIES:

BARRY RIORDAN
(applicant)

v

DEBBIE ANN DEANS

(first respondent)

ANTHONY JAMES DEANS
(second respondent)

APPLICATION NO/S:

NDR070-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 July 2018

HEARING DATE:

22 June 2018

HEARD AT:

Hervey Bay

DECISION OF:

Member Deane

ORDERS:

Debbie Ann Deans and Anthony James Deans are to pay Barry Riordan the sum of $7,993.85 by 4:00pm 31 August 2018.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – whether tree’s roots caused serious damage to the neighbour’s land or property – whether compensation payable

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 46, s 47, s 52, s 61, s 65, s 66, s 68,
s 74

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

D A Deans

REASONS FOR DECISION

1. Mr Riordan lives next door to Mr and Mrs Deans.  Mr Riordan commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act),[1] primarily seeking orders that two trees, including a mature lilly pilly, on the Deans land be removed at the Deans’ cost and for compensation for damage caused by tree roots.

   [1]Exhibit 1.

2. Mr Roberts, a tree assessor, provided a report about the trees the subject of the dispute.[2]

   [2]Exhibit 3.

3. Since the proceedings commenced and following Mr Robert’s report the Deans have removed the trees at their cost. 

4. During the hearing the parties agreed that the only issues for determination were:

   (a)whether the costs associated with existing damage claimed by Mr Riordan in the sum of $7,110 was payable;

   (b)whether the costs of the application claimed by Mr Riordan in the sum of $833.85 was payable.

   Have all pre-requisites to an order been complied with?

5. I am satisfied that Mr Riordan has complied with all of the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act.

6. In particular, I find that Mr Riordan did make reasonable efforts to resolve this dispute prior to commencing this proceeding. 

7. His evidence is, and I accept, that he spoke with Mrs Deans a number of times including in or about December 2013, March 2014, November 2014 and February 2017, he sent a letter in January 2017 and sought the assistance of the Dispute Resolution Centre to mediate the dispute in March 2017. 

8. Mrs Deans sought to challenge Mr Riordan’s evidence as to the timing of conversations but conceded that she could not recall the sequence of events with precision. I prefer Mr Riordan’s evidence, which is consistent with some contemporaneous documents.

   Is Mr Riordan entitled to compensation?

9. I find that Mr Riordan is entitled to compensation in the sum of $7,993.85 (incl GST).

10. Mr Riordan is the applicant and bears the onus of establishing on the balance of probabilities his entitlement to compensation.

11. The Tribunal has broad powers 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 QCAT, land is affected by the tree.[3]

    [3]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act), section 61.

12. Land is ‘affected by a tree’ at a particular time if the tree has caused serious damage to the land or any property on the land[4] and the land adjoins the land on which the tree is situated.[5]   A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.[6]  

    [4]Ibid, section 46(a)(ii)(B).

    [5]Ibid, section 46(b).

    [6]Ibid, section 47(1).

13. A tree-keeper is responsible for:

    (a)the proper care and maintenance of the tree-keeper’s tree;[7]

    (b)ensuring a tree does not cause serious damage to a person’s land or any property on a person’s land.[8]

    [7]Ibid, section 41.

    [8]Ibid, section 52(2)(b).

14. The Tribunal has broad powers to make orders it considers appropriate in relation to a tree affecting the neighbour’s land to remedy serious damage to the neighbour’s land or any property on the neighbour’s land.[9]   The Tribunal may make an order even if the tree has been completely removed unless the tree-keeper has sold the land on which the tree was situated since the damage was caused.[10]   There is no suggestion that the Deans have sold the land.

    [9]Ibid, section 66.

    [10]Ibid, sections 68(1) and (2).

15. Where serious damage is alleged, the Tribunal may consider whether anything other than the tree has contributed to the damage including any act or omission of the neighbour and any steps taken by the tree-keeper or the neighbour to prevent or rectify the damage.[11]

    [11]Ibid, section 74.

16. Mr Riordan’s evidence is that he has experienced cracking of his concrete path, movement of his hot water system situated on the concrete path and roots invading his waste water and sewerage pipes causing blockages and that he has engaged tradespeople to repair previous blockages. 

17. ‘Serious damage’ is not defined in the Act.  I accept that the damage to the path and pipes, as shown in photographic evidence before me would constitute serious damage.

18. Mr Roberts’ report records his opinion that:

    (a)the damage to the path is consistent with root incursion and given the species, size and proximity of the Deans’ lilly pilly to the damage its roots are most likely to be the main contributor to the property damage;[12]

    (b)other vegetation was not suspected of being the main contributor;[13]

    (c)the cracking and lifting of the concrete path and blockage of sewer and stormwater pipes has been caused by the lilly pilly.[14]

    [12]Exhibit 3 at [2.2].

    [13]Ibid at [2.3].

    [14]Ibid at [3].

19. Mrs Deans sought to challenge Mr Roberts’ assessment noting that he admitted that he did not perform invasive tests and that no evidence from an engineer had been  called by Mr Riordan to dispense with the possibility that the damage was caused by other factors such as subsidence, because she asserted that Eli Waters was built on swamp land.  Mr Riordan disputes that his house was built on swamp land.  Mrs Deans also raised the possibility that works performed by or on behalf of Mr Riordan may have caused the damage or caused the tree roots to divert from their natural path. 

20. Having raised these possibilities, Mrs Deans did not seek to lead any documentary evidence or evidence from persons with direct knowledge of such matters or persons qualified to make an assessment.  She contends that there is insufficient evidence that her trees were the cause of the damage for which Mr Riordan seeks compensation.

21. In the alternative, Mrs Deans contends that Mr Riordan ought to have acted sooner to prevent the continuing damage to his property and in particular contends that he ought to have installed a root barrier years ago.   The undisputed evidence before me is that neither Mr Riordan nor Mrs Deans had any knowledge of root barriers before Mr Roberts attended to make an assessment of the trees.  Whilst Mr Riordan did delay in bringing this application I accept his evidence that part of the delay was caused because when he spoke to Mrs Deans in November 2014 she indicated that she would seek quotes after school finished that year.

22. Mrs Deans challenged documentary evidence, which Mr Riordan produced about moneys paid to Ezi-flow Plumbing in the past to rectify blockages caused by tree roots[15] and the quote to repair part of the current damage.[16]  Ezi-flow’s office manager gave evidence by phone to support the evidence as to previous work performed and amounts paid for earlier damage but not claimed by Mr Riordan in these proceedings.  Ezi-flow’s director/owner, Mr Harth, a qualified plumber, also gave evidence by phone about previous work performed and his preparation of the quote.

    [15]Exhibit 10.

    [16]Exhibit 6, appendix 5.

23. The Deans did not seek to put before me any evidence as to the appropriate method of rectification of the damage and its reasonable cost.

24. I accept Mr Harth’s evidence that:

    (a)in his experience tree root barriers are not ‘overly successful’; 

    (b)the roots of lilly pilly trees are notorious for causing issues with pipes;

    (c)other than the Deans’ lilly pilly there were no big trees in the vicinity of Mr Riordan’s pipes and path; and

    (d)there are no methods of rectifying the damage successfully at a lesser cost than that set out in the quote. 

25. On the evidence before me I accept the independent evidence of Mr Roberts and find that more likely than not the Deans’ tree’s root system was the main cause of the damage to Mr Riordan’s property.

26. I accept $7110 (incl GST) is a reasonable price for the work to be performed to rectify the current damage caused by the Deans’ tree.  In this regard, Mr Riordan produced an alternative quote, which was slightly more expensive.[17] 

    [17]Exhibit 6, page 16.

27. Mr Riordan also seek outlays incurred in the proceedings in the amount of $833.85 as follows:

    (a)share of tree assessors costs - $500;

    (b)filing fee - $315.70;

    (c)titles office search fee - $18.15.  

28. Mr Riordan was required to expend these amounts because the Deans failed to engage with him to resolve this matter over a number of years leaving Mr Riordan no option but to commence proceedings. I accept Mr Riordan’s evidence that the Deans do not have a telephone listing so that it was reasonable for him to undertake a titles search to ascertain the names of the owners of the land on which the tree was situated. These expenses would not have been incurred by Mr Riordan but for the lilly pilly causing damage to Mr Riordan’s property.

29. I consider it appropriate to order these amounts be paid to remedy the serious damage to Mr Riordan’s property.