Vanderdrift & Wray v Eisenmenger & Braithwaite
[2013] QCAT 583
| CITATION: | Vanderdrift & Wray v Eisenmenger & Braithwaite [2013] QCAT 583 |
| PARTIES: | Mrs Jeanette Vanderdrift Mr Kenneth William Wray (Applicants) |
| v | |
| Mrs Gail Eisenmenger Mr Alan Braithwaite (Respondents) |
| APPLICATION NUMBER: | NDR157-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 30 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Fiona FitzPatrick, Member |
| DELIVERED ON: | 30 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Eisenmenger Pty Ltd, the registered owner of 15 Pikett Street Clontarf, must arrange for the removal of the Tipuana Tipu, the Eucalyptus major and the tree stump which are the subject of this dispute, including the roots of each tree, at its own cost, (including the cost of removing and reinstating the dividing fence). 2. The trees are to be removed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3, before 30 November 2013. 3. Eisenmenger Pty Ltd will install a two course besser block wall, to prevent sand encroaching on the dividing fence, before 30 November 2013. |
| CATCHWORDS: | TREE DISPUTE- whether trees should be removed; trees providing substantial shade to play area in a child care centre; loss of amenity; structural integrity of trees compromised by abatement work on tree canopies and root systems; one of the trees classed as a “pest or weed”; statutory obligation on Tribunal to make personal safety the primary consideration when resolving tree disputes; who should pay for works; who to pay for shade structure to replace the shade provided by the trees. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 46, 52, 61, 66, 71, 72, 73 Thomsen v White (2012) QCAT 381 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mrs Jeanette Vanderdrift and Mr Kenneth William Wray were self represented |
| RESPONDENT: | Mrs Gail Eisenmenger and Mr Alan Braithwaite were self represented |
REASONS FOR DECISION
The Braithwaites are the sole directors of Eisenmenger Pty Ltd which is the registered owner of land at 15 Pikett Street Clontarf. Mrs Eisenmenger now goes by the name of Mrs Braithwaite.
The trees which are the subject of this dispute had already been planted when the Braithwaites purchased the land. They established Beehive Kindy child care centre on the land prior to Mrs Vanderdrift and Mr Wray purchasing the vacant land next door in 2004.
After obtaining the necessary council approvals, Mrs Vanderdrift and Mr Wray built a home which is centred on their block, with a 1-2 metre set back from the side boundaries. The home takes up approximately 65-75% of the land footprint.
Mrs Vanderdrift and Mr Wray have asked the Tribunal to order the removal of three trees on the Braithwaites’ land. The first is a Tipuana (Tipuana Tipu) which is 18m high, with an average canopy spread of 18m. It is 200mm from the boundary fence at its closest point. The second is a Grey Gum (Eucalyptus major), which is 24m high with an average canopy spread of 12m, and situated 400mm from the boundary fence at its closest point. The third tree is a stump. Although of course it has no canopy, its roots still penetrate into Mrs Vanderdrift and Mr Wray’s property.
Mrs Vanderdrift and Mr Wray produced invoices for pruning overhanging tree branches in 2005 and 2009 which total $1295. They say they have done other abatement work on the trees, but do not have the invoices. They have pruned the branches of these trees to stop them damaging their roof.
As the trees matured the roots started to cause damage to the dividing fence and their concrete path. Their concerns escalated in early 2011 when they decided to install a drain after flooding. The excavation revealed that 35-50% of the root systems of these two trees have penetrated into Mrs Vanderdrift and Mr Wray’s property.[1]
[1]No evidence about distance of root penetration.
Mrs Vanderdrift and Mr Wray wrote to the Braithwaites asking that the trees be removed and later provided them with a copy of a report they had obtained from Mr Michael Sowden, a certified arborist from Aussie Tree Solutions. In 15 November 2012 Mr Noel Fitzpatrick, also a certified arborist, prepared a tree assessment report, folowing a direction from the Tribunal.
At first the Braithwaites were reluctant to remove the trees, because they provide extensive shade the centre’s main play area. It is a regulatory requirement that child care centres provide adequate shade. They have since consented to the trees being removed, provided Mrs Vanderdrift and Mr Wray agree to pay for the works.
They have obtained three quotes to remove the trees, ranging from $3,500 to $5,800. They propose that their contribution will be to pay for an artificial shade structure to replace the shade of the trees, so that they can continue to meet their obligation as owners of a child care centre to provide shade.
Jurisdiction
The Tribunal has jurisdiction because when Mrs Vanderdrift and Mr Wray applied to QCAT their land was affected by these trees. The trees have caused, are causing, and are likely to cause within the next 12 months:
a) serious damage to their land, path and house; and
b) substantial, ongoing and unreasonable interference with their use and enjoyment of their land.[2]
[2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Act) s 46.
This matter raises the following issues:
a) should the trees be removed? and if so;
b) who should pay for them to be removed?
c) who should pay for the damage to the dividing fence and path?
d) who is responsible for paying for an artificial shade structure to ensure that the child care centre can continue to meet the regulatory requirements for shade?
e) should the Tribunal make an order in relation to the sand which has been laid to act as soft fall under the play equipment, which Mrs Vanderdrift and Mr Wray say is damaging the dividing fence?
Should the trees be removed?
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 stipulates that when QCAT considers an application for the removal of trees, its primary consideration must be the safety of any person[3]. It must also have regard to the guiding principle that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[4] The Tribunal is obliged to have regard to these guiding principles even where parties to a tree dispute agree on the fate of the trees, as in this case. In addition to these overarching principles, the Act sets out a list of things the Tribunal must consider when determining disputes about trees[5].
[3] Ibid s 71.
[4] Ibid s 72.
[5] Ibid s 73.
The prescribed considerations which mitigate for keeping the trees are that they make a substantial contribution to the natural landscape and to public amenity around the child care centre. They contribute to the centre’s landscaping and, most importantly in this case, provide protection from the sun, which is a significant safety consideration in a child care centre.
Part of the case for removing the trees centres on another prescribed consideration, the location of the trees in relation to Mrs Vanderdrift and Mr Wray’s boundary and their impact on their property. Both arborists’ reports say that that this consideration alone warrants the trees being removed. After considering their expert evidence, I agree.
Tree Solutions’ report identifies both the Tipuana Tipu and the Eucalyptus major as ‘unsuitable and damaging examples of their respective species’ due to their proximity to the boundary. The root system and basal root crown of the Tipuana (an invasive species) are causing significant infrastructure damage to the neighbouring property.
In effect the report categorises the Tipuana tree as a ‘pest or weed’. The legislation suggests that pest species should not be afforded the same level of protection as other trees.
The report discounts additonal remedial work on the trees as a viable option on the basis that it would further undermine the strucutual integrity of the trees and would only be a short term solution. It concludes that the trees should be removed.
The QCAT tree assessment report agrees that the trees should be removed, as:
a) further pruning work is not viable as it would exacerbate the one sided form of the trees;
b) the trees will continue to cause ‘increasingly serious’ damage to Mrs Vanderdrift and Mr Wray’s land, path and the dividing fence;
c) the displacement of the dividing fence can be directly attributed to the trees.
The applicants discounted safety as a consideration in this case on the basis of a finding in the QCAT report that the trees were ‘unlikely to cause personal injury in the next 12 months’. However this time limit is only relevant in determining the Tribunal’s jurisdiction over a tree dispute. Jurisdiction has already been established on other grounds.
The Act obliges the Tribunal to consider the safety outlook for the trees into the foreseeable future, unfettered by the 12 month time limit. The arborists’ agree that these trees pose risks to personal safety on both sides of the fence. Articulating the safety risks posed by the trees also:
a) alerts child care centre stakeholders to the dangers posed by the trees;
b) explains to community stakeholders that the decision to remove the trees has been made on both property damage and safety grounds, enabling them to better accept the substantial loss of amenity which will result from the removal of the trees; and
c) has implications for the question of who should pay for the trees to be removed.
Tree Solutions’ report expresses concern that:
a) there is an unacceptable risk of ‘limb failure impacting into (Mrs Vanderdrift and Mr Wray’s property)’. (As the majority of the limbs are on the child care centre side, I have read this as including a risk of limbs falling into the centre).
b) the trenching Mrs Vanderdrift and Mr Wray have performed in the structural root zone of each tree (they were entitled to conduct this abatement work under the Act) has the ‘potential to reduce the structural stability of each tree and to provide a pathway for pathogen infestation’.
The QCAT tree assessment report concludes that while both trees are showing “fair to good” vigour, in at least one part of the tree there is a column of decay. The likelihood of failure at this point does not appear significant but it can only be accurately assessed with further testing.
Despite concluding that the trees are not likely to cause serious injury ‘within 12 months’, the report refers to ‘pronounced leans’ on both trees, which have promoted the growth of a compensatory underground tension root system on Mrs Vanderdrift and Mr Wray’s property. Any severence of this section will ‘seriously call into question the structural stability of the trees’.
Although the expert reports are comprehensive, they do not address all the factors which must guide the exercise of the Tribunal’s discretion in this case[6]. For example the reports are silent about whether or not there are ‘any risks associated with the trees in the event of a cyclone or other extreme weather event’.
[6] Ibid s 73.
Nevertheless, the expert opinion is that these trees pose an unacceptable risk of failure leading to personal injury in either the short or longer term. They pose a risk to the personal safety of the users of a busy play area and to Mrs Vanderdrift and Mr Wray.
Given that the Act regards personal safety as a paramount consideration, this finding alone would be sufficient grounds for an order for the removal of the trees, even if they had not caused property damage to Mrs Vanderdrift and Mr Wray’s property.
Who should pay for the removal of the trees and for a replacement shade structure?
Mrs Vanderdrift and Mr Wray argue that the Act makes the Braithwaites responsible as the “tree keepers” for both the care and maintenance of the trees and for ensuring that the trees do not damage adjoining property[7]. However, they also acknowledge court and tribunal decisions have identified other relevant factors influencing liability to pay, including:
a) whether or not the tree predated a neighbouring structure. This is not relevant to the question of removal, but may be relevant to the question of who should pay for the trees to be removed;
b) the Tribunal should have regard to whether the location or design of a structure near pre existing trees contributed to any damage when determining who should pay.[8]
[7] Ibid ss 41(1), 52(2).
[8] Thomsen v White (2012) QCAT 381; Black v Johnson (No 2) 2007 NSWLEC 513.
Although the trees were present before Mrs Vanderdrift and Mr Wray built their home, they say that the placement and setback of their home were appropriate given the size of the block. I agree.
They say that:
a) the Braithwaites responsibilities as tree keepers are set out in the Act;[9]
b) as they have tried to mitigate the impact of the trees on their property, incurring at thousands of dollars in abatement costs in the process, the Braithwaites should pay for the trees to be removed;
c) the fact that the adjoining land is being used as a childcare centre and is subject to a regulatory requirement for shaded play areas has no bearing on who should pay for the trees to be removed.
[9] Act s 52.
I agree with the above submissions. Furthermore, had there been no serious damage and interference to the neighbouring property, I would still have ordered that the trees be removed on safety grounds.
I find that the Braithwaites are liable for the cost of removing the trees. This work will entail the removal and reinstatement of the dividing fence to allow the removal of the roots growing under the fence. This is an integral part of the cost of removing the trees and must be paid by the Braithwaites. The fence has been damaged by the trees and would have had to be straightened in any event.
I do not propose to make any orders about the replacement shade structure. This is a matter for the Braithwaites. This part of the Act only allows the Tribunal to make orders in relation to a ‘tree’.[10].
[10] Ibid s 66.
It is open to the Tribunal to require the Braithwaites to pay compensation to Mrs Vanderdrift and Mr Wray for the damage the trees have caused to their land and property. However given that the Braithwaites are facing considerable removal and reinstatement costs, I do not propose to make any compensation orders.
In relation to the sand against the fence, Mrs Vanderdrift and Mr Wray directed the Tribunal to section 74 of the Act, which says that the Tribunal may take into account any other factors which have contributed to the damage caused by the trees. They say that this entitles the Tribunal to make an order that the sand be retained.
The better view is that section 74 is designed to allow the Tribunal to take into account factors which may be contributing to property damage for the limited purpose of deciding whether the trees should be removed. It is not a basis for making orders about those things. Section 66 only allows the Tribunal to make orders in relation to a ‘tree’ under this part of the Act.
In any event, the Braithwaites have agreed to install a two course besser block wall, to retain the sand and to prevent it encroaching on the dividing fence. They say this can be done without compromising the safety of the soft fall.
It is unfortunate that the child care centre will lose the benefit of the shade from these trees. The Braithwaites may choose to replace them with a fast growing, non invasive species at an appropriate set back from the fence, to recreate a pleasant, green space around the play area. However I do not propose to make an order about this under section 69 of the Act.
I am satisfied that Mrs Vanderdrift and Mr Wray have made a reasonable effort to reach agreement with the Braithwaite’s, and that the other preconditions for making an order have been met. [11]
[11] Ibid s 65.
At the hearing, I proposed that the Braithwaite’s should be given four months to complete the work, in light of the fact that, in addition to the cost of the removal of the trees and the construction of a small retaining wall, they need to arrange for the installation of a shade structure, which may be expensive. They asked for further time to complete the work. After considering the likely costs, I agree that a six month time frame is appropriate.
I make the following orders:
Eisenmenger Pty Ltd, the registered owner of 15 Pikett Street Clontarf, must arrange for the removal of the Tipuana Tipu, the Eucalyptus major and the tree stump which are the subject of this dispute, including the roots of each tree, at its own cost, (including the cost of removing and reinstating the dividing fence.)
The trees are to be removed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3, before 30 November 2013.
I also make the following consent order:
Eisenmenger Pty Ltd will install a two course besser block wall, to prevent the sand encroaching on the dividing fence, before 30 November 2013.
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