Sarosiek v Hayward

CITATION:	Sarosiek v Hayward [2015] QCAT 409
PARTIES:	Alina Sarosiek (Applicant)
v
Sirka Tellervo Hayward (Respondent)
APPLICATION NUMBER:	NDR194-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On-Papers

HEARD AT:

Brisbane

DECISION OF:	Member McLean Williams
DELIVERED ON:	9 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:	The application for re-opening, correction, renewal or amendment is dismissed.
CATCHWORDS:	Other civil disputes - neighbourhood tree dispute; matter heard and determined by the Tribunal on 10 June 2015 and orders made for tree to be pruned; Application for re-opening, correction, renewal or amendment by original applicant, who contends that the Tribunal orders were not reflective of the reasons for decision. Application dismissed.

APPEARANCES and REPRESENTATION (If any):

Heard and determined on the papers

Reasons for Decision

On 10 June 2015 a neighbourhood tree dispute was heard before me. On that occasion the order of the Tribunal was:
(i)Within three (3) months the jacaranda tree is to be pruned, in accordance with the recommendations of a qualified arborist, at the expense of the respondent;
(ii)Thereafter, the jacaranda tree is to be inspected by a qualified arborist at least every eighteen (18) months, and then maintained in accordance with the recommendations of those inspections.
On 6 July 2015, the original applicant made an Application for reopening, correction, renewal or amendment of the Tribunal’s orders on the basis of her contention that:
“the written decision of the Tribunal does not fully reflect the actual wording of the final outcome stated by the member at the conclusion of the hearing (jacaranda is to be pruned to ameliorate the concerns of the applicant in relation to dropping of leaf litter, etc). The current wording of the decision leaves too much room for interpretation and does not clarify, extend or [sic] reasons for pruning the jacaranda tree. The member was satisfied that the tree affects my ability to enjoy the amenity of my property. My application to QCAT became necessary after the tree owner unilaterally had engaged an arborist and pruned the jacaranda without any consultation with me as the affected neighbour. This resulted in minimal pruning that made negligible difference to the problem. It would be therefore be [sic] unsatisfactory for QCAT to order a repeat of the same exercise that led to the need for my application.”
In directions issued by Senior Member Brown on 6 August 2015. The applicant was directed to file submissions identifying the precise nature of the relief now sought by her. Thereafter, the respondent tree keeper was asked to file any submissions by way of response to those submissions, and the applicant was then given leave to file further submissions, in reply.
Submissions have now been filed by the parties. The matter now falls to be determined by me ‘on the papers’, also in accordance with the directions given by Senior Member Brown, on 6 August 2015.
The applicant contends that the decision of 10 June 2015 was too brief, and does not capture my reasons for decision, which were given ex tempore at the conclusion of the hearing on 10 June 2015. Accordingly, the applicant requests that the wording of the decision be amended so as to clarify the purpose of the pruning of the particular jacaranda tree that was the focus of the Tribunal’s decision. The applicant also notes that the jacaranda tree was minimally pruned on 4 August 2015 and says that, her view, this pruning was not enough to rectify the problem, as “the branches still overhang my land, cause substantial and unreasonable interference with the use and enjoyment of my property and my land”. In paragraph 23 of her submissions the applicant says “my needs are that no part of the tree should overhang my fence line for the majority of the time that I define at 80-90% of the whole time”.
In submissions filed on 1 September 2015, the respondent contends that the original orders made by me require no correction, as these are entirely consistent with all of the evidence presented before me at the hearing on 10 June 2015. The respondent also notes that no new evidence has been produced by the applicant, such as might warrant a departure from those orders. The respondent also included a further report from Mr Nick Smith of Evergreen Tree Care, who also provided the only expert arborist’s report that was made available for my consideration on the occasion of the hearing on 10 June 2015.
Mr Smith’s most recent report (2015) notes that a pruning of the jacaranda tree was conducted on 4 August 2015 as part of a staged remediation of the tree and that:
“The tree as it currently stands has only a partial canopy extension towards the eastern neighbour’s property. At this stage in conjunction with the intended maintenance schedule, the tree is at its acceptable limit for pruning that can be conducted on the eastern side of the canopy at this time. It must be noted that a regular pruning schedule is in place and yearly inspection coupled with actions in response to those recommendations are also in place”.
In her submissions given in reply, the applicant provides no further evidence yet makes reference to the transcript of the hearing on 10 June 2015 and argues that the omission from the Tribunal’s order of some of the words used by me during the course of my oral reasons for decision (to wit): “to ameliorate the concerns expressed by the applicant in relation to the dropping of leaf litter, etc” leads the Tribunal’s order towards a material departure from the intention underpinning the decision giving rise to that order.
I have read the transcript of the reasons for decision given by me on 10 June 2015. I have also re-read the original (2014) arborist’s report given by Evergreen Tree Care. It again bears observing that no evidence to contradict that report was adduced by the applicant. Although the applicant had contended that she had significant concerns for her own safety and that of her property, the expert evidence before me on 10 June 2015 did not lend any credence to the applicant’s expressed safety concerns. It was found however that the jacaranda tree was still impacting on the amenity of the applicant’s property by reason that it was dropping leaf litter and branches, yet that the tree also contributed materially to the amenity of the local area such that it ought be retained. Accordingly I found that the tree should be pruned, in a manner consistent with the recommendations contained in Mr Smith’s (2014) Arborist Report.
The applicant contends that the order of the Tribunal is not consistent with my reasons. In my reasons, in part, I refer to the need to prune the tree in order to “ameliorate” the concerns of the applicant. According to the Macquarie Dictionary (4^th Edition), the verb ameliorate means ‘to make better’, or ‘improve’. The purpose of the order was precisely so as to ameliorate the concerns raised by the applicant regarding the dropping of leaf litter from that tree onto her property. These orders were never intended to provide a complete solution for the Applicant, yet nor could they given the findings by the Tribunal on the evidence before it. In my view the orders made on 10 June 2015 and signed by me, are entirely consistent with the oral reasons given by me at the conclusion of the hearing and require no further elaboration.
The application for reopening, correction, renewal or amendment is dismissed.

[2015] QCAT 409

9 October 2015