Sowden v Winzar
[2015] QCAT 68
•2 March 2015
| CITATION: | Sowden v Winzar [2015] QCAT 68 |
| PARTIES: | Kenneth Harry Sowden (Applicant/Appellant) |
| v | |
| Clyde Francis Winzar & Wendy Catherine Winzar (Respondents) |
| APPLICATION NUMBER: | NDR158-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 2 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Clyde Francis and Wendy Catherine Winzar, the registered owners of the lot at 34 Kathleen Street CORINDA QLD (“the Tree Keepers”) shall arrange to have the following works carried out on the trees the subject of this proceeding (“The Initial Works”): a. Lateral reduction pruning to be performed on the leopard tree (Caesalpinia ferrea) on its eastern side over the property at 30 Kathleen Street, CORINDA QLD 4075 (“the Neighbour”) to reduce its spread over the Neighbour’s driveway surface, clearance pruning to provide a minimum of 3.0m clearance from the corner of the Neighbour’s dwelling, lifting of the canopy over the Neighbour’s property to provide a minimum of 3.0m ground clearance and the removal of all accessible deadwoods greater than 25mm in diameter over the Neighbour’s property. b. Lateral reduction pruning of the Tallowwood (Eucalyptus microcorys) to remove/reduce the three elongated lateral limbs that extend eastwards over the Neighbour’s property back to behind the alignment of the dividing boundary fence line. c. The complete removal to ground level of the Fiddlewood (Citharexylum spinosum) identified as tree #4 of Michael Sowden’s report dated 15 December 2013. d. Lateral reduction pruning of the Fiddlewood (Citharexylum spinosum) identified as tree #5 of Michael Sowden’s report, to reduce its eastern canopy towards the alignment of the common boundary between the tree keepers and the Neighbour’s properties. |
| 2. Maintenance pruning to be performed at a minimum of two yearly intervals to maintain the canopies at their spread achieved after the initial pruning is performed, save that the leopard tree shall be pruned as required to ensure that the canopy is at least 2.5 metres clear of the ground in the vicinity of the driveway of the Neighbour’s property (“the Subsequent Works”). 3. All tree debris to be removed from the Neighbour’s and the Tree Keepers’ properties after any pruning is performed. 4. All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 “Pruning of amenity trees”. 5. Climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works. 6. All works shall be performed by a minimum Australian Qualifications Framework level 3 qualified arborist. 7. The attending arborist/company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite. 8. The Initial Works must be completed within 60 days of the date of this decision. |
| CATCHWORDS: | NEIGHBOURHOOD DISPUTE RESOLUTION – TREES – where trees overhang boundary – where damage to garden – whether trees pose risk of serious injury to person – whether trees pose risk of serious damage to neighbour’s land – whether trees substantial, ongoing and unreasonable interference with use and enjoyment of neighbour’s land |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Winzar have five large trees in their yard, all of which are quite close to the boundary with their neighbour, Mr Sowden. Mr Sowden considers that the trees have caused, or may cause, serious damage to his property. He wants one tree removed and the others pruned so that they do not represent a danger to his home. He applied to the tribunal for orders about the trees.
As Mr Sowden points out, as tree keepers, Mr and Mrs Winzar are responsible for cutting and removing any branches of trees that overhand Mr Sowden’s land.[1] They must also ensure that the trees do not cause serious injury to a person, serious damage to a person’s land or property, or substantial, ongoing and unreasonable interference with a person’s use or enjoyment of land.[2]
[1]Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) s 52(1).
[2]Ibid s 52(2).
The tribunal may make orders to prevent serious injury to any person, and to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land[3]. A living tree should not be removed or destroyed unless there is no other way to resolve the problem satisfactorily.[4] However, the tribunal’s primary consideration is the safety of any person.[5]
[3]Ibid s 66(1).
[4]Ibid s 72.
[5]Ibid s 77.
The tribunal has a report from an independent arborist. The report contains recommendations about all five trees. I shall consider the fate of each tree in light of the legislative framework, the arborist’s report and the parties’ evidence and submissions.
Tree #1 – the leopard tree
The leopard trees grows at the front of Mr and Mrs Winzar’s land. It is about 19 metres high and has a spread of 18 metres. About 10.5 metres of that spread is across Mr Sowden’s land.
In his report, the arborist notes that the trees has been asymmetrically pruned to clear power lines on the street. He notes that the lower canopy has been pruned in Mr Sowden’s property and that, at the time of inspection, the canopy was less than 2 metres above the surface of Mr Sowden’s driveway. He states that the tree is healthy and has a high amenity value to the local streetscape. He acknowledges large amounts of leaf, twig and seedpod litter around the full canopy of the tree. He recommends the tree remain, but that it be pruned every two years to ensure adequate ground clearance above Mr Sowden’s driveway and a safe distance between the tree and Mr Sowden’s house.
Mr and Mrs Winzar accept the arborist’s recommendations. Mr Sowden does not. He would prefer annual maintenance pruning. He would prefer the tree be pruned back to the boundary line. He has provided a series of photographs to the tribunal which show the rapid growth of a branch overhanging his driveway.
The arborist did not recommend pruning back to the boundary line because of the already unbalanced shape of the tree. The tribunal must consider that matter.[6] The simple fact that a tree overhangs a boundary does not necessarily mean that it creates a substantial, ongoing and unreasonable interference with a person’s enjoyment of land.
[6]Ibid s 77(1)(j).
The trees’ high amenity value is a matter the tribunal must consider when making its decision.[7] The inability to drive a car down a driveway safely, or to traverse that area on foot, is a matter that may amount to a substantial interference with the enjoyment of land. That should be addressed by a regime of pruning. I consider comprehensive pruning every two years is sufficient with an additional condition that the tree be pruned as required to ensure the tree is at least 2.5 metres clear of the ground in the vicinity of Mr Sowden’s driveway. Otherwise, I am not persuaded that the tree requires pruning back to the boundary line.
[7]Ibid s 73(1)(e), (f).
Tree #2 – the umbrella tree and the verbinum
The arborist deals with these trees together. They have a combined height of 9.7 metres and a spread of 7 metres. Of that spread, 1.7 metres in is Mr Sowden’s yard. The arborist considers that both are healthy trees. Because umbrella trees are an environmental weed species in Queensland, he recommends complete removal of that tree. He suggests that the verbinum can remain, with some minor pruning. Both parties accept the arborist’s recommendation.
The tribunal must consider the type of tree, including whether it is a pest or weed, when deciding a dispute[8]. The fact that the umbrella tree is a weed species is the only basis for its removal. There is no evidence that the tree is posing a threat of serious injury to person or property. There is no evidence to suggest that it is causing substantial, ongoing or unreasonable interference with Mr Sowden’s land. Therefore, there is no reason to make an order about the umbrella tree. Ordering its removal would not be in keeping with the principle that living trees should not be removed unless the issue cannot be dealt with in any other way.
[8]Ibid s 73(1)(k).
If the parties agree that the umbrella tree should be removed, then they can act on that agreement. I can find no evidence of substantial, unreasonable or ongoing interference with Mr Sowden’s land that is caused by the verbinum. I will make no order about these trees.
Tree #3 – the tallowwood
The tallowwood is a very big tree, standing 24 metres high and having a spread of 12 metres. The arborist states that the tree is a dominant and significant example of its species that has high local and ecological values. He notes that it has some deadwood. Some of that deadwood occurs in limbs that extend over Mr Sowden’s property. The arborist takes the view that there may be failures within the next twelve months which may affect Mr Sowden’s land. He recommends the removal of three elongated lateral limbs that extend over Mr Sowden’s land, taking the tree back to behind the boundary line. The parties agree with the arborist’s recommendation.
The tallowwood’s contribution to the local ecosystem is a matter that the tribunal must consider when making its decision[9]. It is a tree worth saving but it presents risks to Mr Sowden’s land that should be addressed. I agree with the pruning regime suggested by the arborist.
[9]Ibid s 73(1)(d).
Trees #4 and #5 – the fiddlewoods
The arborist reports that both of these trees have suffered from an infestation of Mexican sap suckers. These pests have stressed both trees and resulted in regrowth.
Tree #4 has a large tear wound and a significant lean towards Mr Sowden’s land. It has suffered from its proximity to tree #5 and a now absent tree. The arborist considers that, within the next twelve months, it will spread its canopy over Mr Sowden’s land and there is an increased risk of limb failure. He also states that any pruning to tree #4 would require the removal of over 80% of the tree, which is outside acceptable guidelines. He recommends complete removal of tree #4.
The arborist considers that tree #5 is healthy and proses no significant risk to Mr Sowden’s land. He recommends reduction pruning to reduce its canopy to behind the boundary line.
Both parties agree with the arborist’s recommendations.
It is apparent that tree #4 is not healthy. There is no evidence that it contributes to the local ecosystem or biodiversity, to the natural landscape or scenic value of the area, or to the public amenity. In his original application, Mr Sowden stated that the tree did contribute to the privacy of Mr and Mrs Winzar’s property from an adjacent school. It does not, however, contribute to privacy as between Mr Sowden and Mr and Mrs Winzar. As Mr and Mrs Winzar agree with the arborist, the tree should be removed.
As to tree #5, the only evidence that it interferes with Mr Sowden’s land is the fact that it overhangs. Mr Sowden fears that it will lose branches but the arborist’s report does not support that concern. The arborist does not give any reason why the tree should be pruned back to the boundary line so I am not prepared to make that order. I will order that the tree be pruned so as to maintain its health and to reduce its spread but I can see no justification for an order that it be pruned back to the boundary.
Costs
Mr Sowden wants compensation for damage to three golden penda trees that he planted in his yard which were damaged by a branch from tree #4. He has received a quote for $1,150 for that work.
The arborist noted the damage to these trees. He noted that the central apical leader of each tree had been removed, which caused regrowth to develop around the wounds. The arborist formed the view that these three trees would self compensate and would develop into successful trees in the future.
Mr Sowden does not accept the arborist’s assessment. He has provide photos that include a fourth, undamaged golden penda, which is taller than the three damaged trees. I accept that evidence but removing and replacing the trees will not correct the disparity in height. Replacement trees, even if larger than the three existing trees, will take time to match the growth of the existing, settled tree. I accept that Mr Sowden’s trees have been damaged. I do not accept that removal and replacement is a proper measure of his loss. His claim for $1,150 is refused.
Mr Sowden also claims the cost of filing his application in the tribunal. Generally, the tribunal expects parties to bear their own costs of a proceeding.[10] The tribunal can make an order for costs is the interest of justice require it.[11] In deciding whether to order costs, the tribunal can consider[12]: whether a party was acting in a way that unnecessarily disadvantaged the other; the nature and complexity of the dispute; the relative strengths of the parties’ claims; the financial circumstances of the parties; and any other factor the tribunal considers relevant.
[10]QCAT Act s 100.
[11]Ibid s 102(1).
[12]Ibid s 102(3).
Neither party was acting in a way that unnecessarily disadvantaged the other. The dispute was not complex. It was the usual argument between neighbours who have different views about the utility of a tree. Mr Sowden was not completely successful in his application so it cannot be said that his case was so strong that Mr and Mrs Winzar were wrong to resist it. I have no evidence of the relative financial circumstances of the parties and there is no other factor that prompts me to depart from the tribunal’s usual position. Mr Sowden should bear his own costs of the proceeding.
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