Robinson v McCombe - [2012] QCAT 712

CITATION:

Robinson v McCombe and Anor [2012] QCAT 712

PARTIES:	Stephen Austin Robinson (Applicant)
v
Sue McCombe Peter McCombe (Respondents)

APPLICATION NUMBER:

NDR028-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

21 November 2012

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

21 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The registered owner of the lot at 3 BellaVista Court, Mt Gravatt, Queensland, 4122, (“The Tree-Keeper”) arrange for the following works to be carried out on the tree the subject of the application:

(a) Crown clearing and directional pruning be carried out in mid-autumn every three (3) years, hereafter.

2. The works are to be carried out by an Australian Qualifications Framework (AQF) Level Three and appropriately insured arborist under the supervision of an AQG Level Four or above appropriately insured arborist.

CATCHWORDS:

Tree – leopard tree – pruning – neighbourhood dispute – large tree overhanging neighbour’s house – trimming to fenceline would destabilise tree and be dangerous

Neighbourhood Disputes Resolution Act 2011

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self (by telephone)

RESPONDENT:

Self

REASONS FOR DECISION

This is an application by Mr Steven Austin Robinson which was filed on 21 December 2011 in relation to a tree which is located at 3 Bella Vista Close, Mt Gravatt.
I find that the subject of the application is a tree within the Act, that it is in the grounds of a property, that the registered proprietor is Dr McCombe, and that Dr McCombe is the tree keeper within the definition of the Act.
In his original application Mr Robinson sought that the tree be removed. Before me today however Mr Robinson has amended that to ask that I make an order in relation to pruning of the tree.
This matter was set for hearing today. Mr Robinson was of the view that his personal attendance wasn’t required. The file does note that the parties were made aware of the hearing date but Mr Robinson requested that I hear him by telephone. Dr and Mrs McCombe had no objection, and I granted that application, and the matter has proceeded on that basis, with Dr and Mrs McCombe in attendance and Mr Robinson attending by telephone.
There has been a report in this matter by a QCAT tree assessor, Mr Andrew Stovell. He prepared two reports, one was dated 20 February 2012 and then he issued a further explanatory report which was dated 18 June 2012. In the course of the hearing there has been some discussion as to the implications of that second report of Mr Stovell and reference to a photograph in that report which shows blue ribbons tied to branches of the tree and whether the tree has been pruned in accordance with the comments of Mr Stovell.
Three experts have been involved in this matter. There is Mr Stovell. The applicant obtained a report from Mr Fishlock of Brisbane Tree & Stump Grinding Service dated 3 December 2012 and the respondents had Mr Andre Rankin inspect the property and make a report dated 27 September 2012.
Mr Rankin attended and gave evidence and he gave evidence that he supervised the pruning of the tree subsequent to the comments of Mr Stovell.
In considering this matter, I have to have regard to the provisions of the Neighbourhood Disputes Resolution Act 2011 and particularly Chapter 3 in relation to trees. The Act requires me to have regard as to whether a tree is liable to cause a danger to the safety of persons or property.
I am satisfied on the evidence of Mr Stovell and Mr Rankin that the tree is healthy and that in its current form it does not provide a current threat to life or property and further that, with appropriate expert attendance and pruning, that it will not in the conceivable future constitute a threat to life or property that will not be adequately controlled by professional attendance and pruning.
I am not much assisted by the report of Mr Fishlock in that regard. His report is quite short and he does not address in detail as do Mr Rankin and Mr Stovell the condition of the tree. He made some general comments about leopard trees in general. My concern today is only with this leopard tree.
I understand Mr Robinson’s concern. This is a very large tree and there seems to be little room for discussion as to whether the tree is at its maturity or whether it is yet to grow larger. It substantially overhangs Mr Robinson’s property and has a potential to overhang his house. Mr Robinson at times has indicated that he would like to see the tree trimmed back to the fence line.
The evidence of Mr Rankin is that such an approach would be unacceptable in terms of both the health of the tree, and the stability of the tree, because it would unbalance the shape of the tree, and in achieving the purpose, because he thinks it would make the tree more dangerous, because the tree would then be unstable and it would also promote growth and the growth in the direction of Mr Robinson’s house would in fact be accelerated. I therefore do not consider it appropriate to trim the tree back to the boundary line.
It is clear that there are implications for Mr Robinson’s property. There is interference with his shade. There is interference with light. There is leaf debris falling on his house and into his water tank. I am not satisfied however that level of interference is unreasonable. Even if the tree was substantially pruned back, this is still a large tree which would in certain circumstances still generate a great deal of leaf litter and the Act apprehends that some extent of interference in an adjoining property is to be tolerated unless it extends to the point of being dangerous or unreasonable.
The matter then resolves simply to a question of what is the appropriate pruning of this tree now and in the future. Dr and Mrs McCombe appreciated the effect of an order will be that any order will be on the Registry of the Tribunal. Mr Robinson has indicated that he sees no need for an order to be made extending beyond 10 years, so I don’t propose to make any special order which means that this order will last for 10 years at which point it can be revised or renewed if required.
The main current dispute concerns the recent trimming of the tree. Mr Robinson is concerned that the recommendation of Mr Stovell as to six branches which is referred to in his second report was not fulfilled, and he suggests that some ribbons that had been attached, apparently by Mr Stovell, may have been removed or dislodged, and were not taken into account during the trimming.
Mr Rankin, who supervised the trimming, was unable to comment as to where the ribbons had been previously placed. He could only comment on the ribbons that he saw. Mr Rankin returned an independent view to what was required of the tree but he also had in regard the comments of Mr Stovell, having read his report. I accept the evidence of Mr Rankin and his qualifications as to appropriate treatment of the tree.
Mr Rankin gave evidence that he was satisfied that the tree has been pruned in an acceptable manner to Australian Standards and that the pruning was such as to not render the tree a danger and he did not think that further pruning was required for a further three years. He said that the pruning level he thought would be appropriate would be a crown clean and directional pruning.
The question of which limbs had ribbons tied up to them is not one that I can resolve on the evidence before me today, nor do I think I need to. I accept that Mr Rankin’s expertise is sufficient and I accept his evidence. He did have regard to Mr Stovell’s comments. He seemed in no uncertainty as to what Mr Stovell was directing the mind of an appropriate arborist at, and had that in regard.
The parties had been provided with some proposed orders. Of those proposed orders the orders in relation to initial works no longer apply because works have been conducted. The only question then remaining is as to whether an order should be made, and as to whether that order should be for pruning every two years or three years. Whilst Dr and Mrs McCombe indicated that they were agreeable to two years, Mr Rankin was clear with the view that three years was sufficient.
Dr McCombe indicated that would of course be less expensive. Mr Robinson has indicated that he doesn’t have a preference for two or three years. Given that, and given that I have accepted the evidence of Mr Rankin otherwise, I propose to continue in that vein, and accept Mr Rankin’s recommendations accordingly.
I am satisfied that the requirements under the Act are made out and I therefore will make an order, and so that the parties are able to follow it, it is an order that is very close to the proposed order.

Orders

I order that the registered owner of the lot at 3 Bella Vista Close, Mt Gravatt, Queensland, 4122, the tree keeper, arrange for the following works to be carried on the tree the subject of the application:
(a)Crown clear and directional pruning be carried out every three years to be conducted during mid-autumn of the relevant year hereafter.
The works are to be carried out by an Australian Qualifications Framework AQF Level Three and appropriately insured arborist under the supervision of an AQF Level Four or above appropriately insured arborist.