Skiggs v Vida
[2013] QCAT 168
| CITATION: | Skiggs v Vida [2013] QCAT 168 |
| PARTIES: | Doreen Skiggs (Applicant) |
| v | |
| John Vida (Respondent) |
| APPLICATION NUMBER: | NDR135-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On papers hearing |
| HEARD AT: | Brisbane |
| DECISION OF: | Pam Goodman, Member |
| DELIVERED ON: | 22 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. In relation to trees remaining standing along the eastern side of the easement driveway to 36 Fir Street, Victoria Point, Queensland. 2. The following trees be removed to ground level and stump ground: I. Paperbark (Melaleuca sp.) – tree #9 II. Conifer (Cupressus sp.) – tree #5 III. Bottlebrush (Callistemon sp.) – tree #7 IV. Two Slash Pine (Pinus elliottii) – trees #6 and 8 3. The following trees be pruned so that no part of their canopies extends over the property at 32 Fir Street, Victoria Point, Queensland: I. Paperbark (Melaleuca sp.) – tree #1 II. Lilly Pilly (Syzgium sp.) – tree #2 4. The following trees be pruned annually so that no part of their canopies extends over the property at 32 Fir St, Victoria Point, Queensland: I. Paperbark (Melaleuca sp.) – tree #1 II. Lilly Pilly (Syzgium sp.) – tree #2 5. All tree debris produced during tree removal and pruning works to be removed from the applicant’s property. 6. Pruning works to be performed in compliance with the requirements of Australian Standard 4373-2007 “Pruning of Amenity Trees”. 7. All works to be performed by a minimum Australian Qualification Framework level 3 qualified arborist. 8. All tree removal, pruning and stump grinding is at the cost of the respondent. 9. Work specified in this order is to be carried out within 90 days of the order. |
| CATCHWORDS: | NEIGHBOURHOOD DISPUTE - Where nine trees close to a boundary – where applicant’s land is affected by the trees – where removal of trees ordered - where insufficient evidence to order compensation Neighbourhood Disputes Resolution Act 2011 |
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
BACKGROUND
The applicant has applied to the Tribunal for an order to remove trees, and for an order that her neighbour pays the costs of replacing her driveway, fence and shed. The applicant claims that trees located on the respondent’s land have caused the following damage to her property:
a) Roots have cracked and lifted her driveway;
b) Roots have cracked and lifted sections of foundation to her shed and patio on the shed; and
c) The fence is no longer straight, but is buckled, both vertically and horizontally.
The applicant seeks an order that the trees are removed, and that the respondent meet the cost of replacing the driveway, fence and shed (foundation, patio, and building).
LEGISLATION
I have had regard to the provisions of the Neighbourhood Disputes Resolution Act 2011 (NDR) and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
JURISDICTION
At the time the application was lodged, nine trees were growing beside an easement driveway on the western side of the applicant’s land. The respondent is the owner of the land upon which the trees are growing.
I am satisfied that the trees are “trees” as defined in the NDR, that the applicant’s land adjoins the respondent’s land, and that the trees are situated on the respondent’s land. The respondent is a “tree-keeper” as defined in the NDR.
Given that there are nine trees which are the subject of this application, I must consider whether the applicant’s land is “affected by” any or all of the trees. This Tribunal may only make orders in respect of trees when the neighbours land is affected by them.
The NDR provides that the applicant’s land is affected by a tree if branches from the tree overhang the land, OR the tree has caused, is causing, or is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
I have the benefit of a Tree Assessment Report prepared by Mr Michael Sowden who visited the site on 1 December 2012 and prepared a report dated 22 December 2012. Mr Sowden describes the trees as follows:
a) Paperbark (Melaleuca sp.) – trees #1 and 9
b) Lilly Pilly (Syzygium sp.) – tree #2
c) Bottlebrush (Callistemon sp.) – trees #3 and 7
d) Blueberry Ash (Elaeocarpus reticulates) – tree #4
e) Conifer (Cupressus sp.) – tree #5
f) Slash Pine (Pinus elliottii) – trees #6 and 8
Mr Sowden stated that branches from the trees extend over the applicant’s land. I am satisfied that the applicant’s land is affected by the trees the subject of this application.
The NDR provides that a living tree should not be removed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. In making a decision, the safety of a person is the primary consideration.
EVIDENCE
Mr Sowden found:
a) The applicant’s driveway is made up of multiple concrete slabs of varying ages. No reinforcing bars were visible within the exposed edges of the concrete slabs. The driveway surface along its entire length is highly irregular with multiple cracks and several concrete slabs have been uplifted and displaced vertically up to 100mm in height. The uplifted concrete represents a significant tripping risk to people and is hindering vehicular movement along the driveway surface.
b) Between trees #1 and #4, the driveway has multiple surface cracks and some minor displacement of the concrete surfacing;
c) The most significant sections of concrete uplift are occurring in the vicinity of trees #5 – 8. It is highly likely this has been caused by the roots of trees #5, 6, and 8. Tree #7 is small and almost completely dead and is unlikely to affect the driveway.
d) The concrete slab near the applicant’s shed, and adjacent to tree #9, has several cracks visible within it surface. It is highly likely the roots from tree #9 are contributing to the visible cracks in the concrete slab.
e) Large amounts of debris accumulated on the roof of the applicant’s dwelling and shed originated from the trees the subject of this application.
f) The chain link fence that forms the boundary between the applicant’s and the respondent’s property is buckled in several locations and it is highly likely that the trees the subject of this application are contributing to the fence displacement.
g) Removal of roots within the applicant’s property is required to allow for the applicant’s concrete driveway damage to be repaired, and to prevent future significant damage from occurring. Such root severance could cause significant and highly detrimental growth effects on each tree and has the potential to reduce the inherent structural stability of each tree. Accordingly, the severance of roots within the applicant’s property whilst retaining the trees cannot be performed.
Mr Sowden made the following recommendations:
a) To ensure the safety of all persons, it is recommended that trees #5, 6, 8 and 9 are removed, and stump ground to prevent future significant damage.
b) Tree #7 is partially dead and in decline and should be removed and stump ground.
c) Trees #1 and 2 are healthy and have little potential for future growth or damage. Damage to the driveway may only be partially attributed to these trees. They should be pruned to behind the alignment of the dividing fence, and annual pruning undertaken.
d) Trees #3 and 4 do not require work as they are not causing damage to the applicant’s property.
The respondent provided brief submissions via an email sent to QCAT dated 7 March 2013. He acknowledges that the trees on his property have caused some damage to a part of the driveway (about nine square metres) and agrees to meeting some of the cost of repair. The respondent states that the driveway has not been well constructed, and that some of the damage has been caused by poor construction, age and movement.
The respondent proposed that “both users of the driveway and doreen skiggs split the bill”.
The applicant has provided written submissions. She advises that one of the trees the subject of this application was blown over in a storm on 27 January 2013. It appears likely that this is tree #7 but I am unable to confirm that on the information available to me.
FINDINGS OF THE TRIBUNAL
In the absence of any contrary evidence from the parties, I adopt the findings and recommendations of the tree assessor. Trees #5, 6, 8 and 9 are causing substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of the land. I find that they have caused damage to the applicant’s property (particularly her driveway) and are likely to cause further significant damage within the next 12 months. Removal will be the responsibility of the tree keeper – the respondent.
It appears that tree #7 has blown over. If that is the case, it will no longer be affecting the applicant’s land, and no order will be necessary. If it hasn’t blown over, it is likely to cause damage if it should fall, given that it is in poor health. If this tree remains standing, the respondent must remove it. If it doesn’t, no order will be made.
Trees #1 and 2 currently overhang the applicant’s property and the respondent will be responsible for pruning those trees to align with the dividing fence, and for undertaking annual pruning.
Trees #3 and 4 are not causing damage to the applicant’s property and will not do so in the future. No orders will be made in respect of these trees.
THE APPLICANT’S CLAIM FOR COMPENATION
The applicant asks that the respondent pay for:
a) Replacement of her driveway - $9,875 to replace 124 square meters and the slab under the shed. This includes the cost of removing the current concrete and replacing with reinforced concrete;
b) New Shed - $5,684
c) Installation of new shed - $1,484
d) Replacement of fence - $3,200
e) Electrical work in new shed - $1,353.
f) Storage of contents while shed is removed and replaced - $748
The applicant points out that the quotes are over a year old, and prices are likely to have risen since she obtained them.
There is no evidence that the shed is unusable or has been significantly affected by the respondent’s trees. I have evidence of some cracking on the concrete outside of the shed but I cannot be satisfied on the evidence available that the shed requires replacement. No order will be made in respect of the shed.
Similarly, the evidence in relation to the fence is that it has moved somewhat. There is no evidence that the fence requires replacement. No order will be made in respect of the fence.
In relation to the driveway, the only independent evidence available is that of the tree assessor, Mr Sowden, who notes that the driveway surface is comprised of multiple slabs of concrete which appear of varying age, and do not appear to have been reinforced. He has concluded that only the additional damage in the vicinity of trees #5 – 8 can be attributed to roots from the respondent’s trees.
Mr Sowden is not a structural engineer and has recorded what he has seen, rather than provided an expert report on the construction of the driveway.
The respondent concedes that approximately nine square meters of the driveway have been affected by the trees.
This is a difficult matter. I accept that the trees are likely to have caused significant movement on the driveway in the vicinity of trees #5 – 8. I have no evidence as to the cost of repairing that section of the driveway. I am unable to calculate a cost per square metre as the quote provided also includes the cost of removing and replacing the slab under the shed. I note that the quote is for reinforced concrete, which appears to be an improvement, rather than a replacement of the current driveway.
Photos show a reasonably long driveway and it is not possible for me to ascertain with any accuracy what proportion of the driveway has been damaged by the trees. I note that damage is likely to have been exacerbated by construction of the driveway using (apparently) unreinforced concrete slabs. If the applicant’s position is that the whole driveway requires replacing, and the evidence is that the trees have damaged only one section of the driveway, it is arguable that the driveway would have needed replacing whether or not the trees damaged it further.
On the evidence available I am unable to be satisfied that any order should be made for compensation in respect of damage to the driveway. It may be that this is an issue that may be resolved between the parties.
The applicant seeks an order for “costs”. There is no evidence as to what other costs she is claiming. No order for costs will be made.
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