Waddell v Anderson
[2023] QCAT 457
•6 November 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Waddell & Anor v Anderson [2023] QCAT 457
PARTIES:
GARY ALLAN WADDELL
BELINDA LEE WADDELL(applicants)
v
BILLY LEE ALDERSON (respondent)
APPLICATION NO:
NDR178-22
MATTER TYPE:
Neighbourhood dispute
DELIVERED ON:
6 November 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
1. The Respondent must by 4:00 pm on 22 March 2024:
(a) At his cost, cut the African Tulip tree located on the common boundary to the Applicants’ property to a stump. The Respondent is not required to remove the stump, but is required to poison the stump so it does not grow back; and
(b) The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.
2. If the work is not completed by 22 March 2024, the Applicants will be entitled to have the work performed to the standard in Order 1 (a) above.
3. If the Applicants are required to carry out the work in default of it being done by the Respondent:
(a) A suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the Applicants (or successor in title) shall be entitled to enter the Respondent’s land to carry out the work subject to the Applicant giving 14 days written notice of that intention to the Respondent at the Respondent’s last known address; and
(b) The costs incurred by the Applicant engaging a tree lopper and arborist to do the work in default of the Respondent shall be recoverable from the tree keepers as a debt without further notice being given.
4. The Respondent and any tree lopper or arborist engaged by the Respondent to perform the work shall be entitled to enter the Applicants’ property subject to 72 hours written notice being given of the work to be done.
5. By 4:00 pm on 22 December 2023, the Respondent will pay to the Applicants $450.00 for the damaged TV antenna provided:
(a) the Applicants file in the Tribunal and serve on the Respondent an invoice and receipt quantifying the $450.00 amount within 14 days of the publication of these reasons.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – where tree is a restricted invasive plant under the Biosecurity Act 2014 – whether a neighbour is entitled to relief where a large tree causes damage to his home
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 65, 66, 73, 74 & 75
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Gary and Belinda Waddell live in North Ward, a suburb of Townsville.
The Waddells share a common boundary with Billy Anderson. Mr Anderson has an eight metre tall African Tulip tree on his property which overhangs the Waddell’s property by about one metre. The African tulip is a category three restricted invasive plant under the Biosecurity Act 2014 (Qld).
The Waddells say that the tree has twice broken their television antenna and crushed their guttering. They say that the tree prevents grass growing on that side of their property. The tree also creates significant shade which leads to internal mould, prevents solar panels being installed and blocks their view of Castle Hill.
The Waddells have made efforts to self-remedy. They state they have tried to cut the tree back over the last five years but is now too large for them to control. They want the tree removed completely.
Effort to reach agreement
I can only make an order if I am satisfied that the Waddells have made a reasonable effort to reach an agreement with Mr Anderson.[1] They have provided copies of emails they sent to Mr Anderson and his real estate agent and their responses. The responses show Mr Anderson does not have an interest in trimming or removing the tree to alleviate the Waddells concerns. Nor has Mr Anderson filed a defence in the Tribunal. I am satisfied that the Waddells have made a reasonable attempt to reach an agreement.
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 65.
Should the tree be removed?
I can make orders to remove a tree to prevent serious damage or substantial, ongoing and unreasonable interference.[2]
[2]Ibid s 66(2)(b).
Interference can be an obstruction of sunlight provided it is severe or obstructions of a window, roof, or a pre-existing view.[3]
[3]Ibid s 66 (3).
Section 73 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 lists matters for the Tribunal to consider. Of these, the following are relevant:
(a)the location of the tree in relation to the boundary;
(b)whether the tree is a pest, weed or similar;
(c)risks in relation to cyclones and other extreme weather events; and
(d)contribution the tree makes to the amenity of the land – including protection from sun.
Because the Waddells allege the tree has caused, is causing, or is likely to cause serious damage to their land or property, the Tribunal can also consider:
(a)anything other than the tree that contributed to the damage, including any act or omission by the neighbour; and
(b)any steps taken by either party to prevent or rectify the injury or damage.[4]
[4]Ibid s 74.
The tree is close to the boundary, and the Waddells’ house.[5]
[5]Ibid ss 73 (1)(a), 75 (c).
As I have already noted, the tree is an invasive plant under the Biosecurity Act 2014 (Qld).[6]
[6]Ibid s 73 (1)(k).
The Waddells state, and I accept, that the tree fell during Cyclone Yasi in 2011. They say, and I accept, in the event of another cyclone or other extreme weather event, there is a risk of the tree falling again.[7]
[7]Ibid s 73 (1)(i).
The Waddells state the tree provides a severe obstruction of sunlight which leads to mould in their property.[8]
[8]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 66 (3)(b)(i).
The damage the tree has done to the Waddells property (including two broken television antennas and guttering) is considerable.[9]
[9]Ibid s 66 (2)(b)(i).
The growth rate of the tree also limits the Waddells ability to trim it,[10] a rate illustrated by the fact it fell during Cyclone Yasi and has only taken 12 years to regrow to its current eight metre height. Despite requests, Mr Anderson has not taken any steps to reduce the impact of his tree.[11]
[10]Ibid ss 74, 75(b).
[11]Ibid ss 74 , 75(b).
For these reasons, trimming the tree is not an appropriate solution and it should be removed.
The Waddells also state that the tree obstructs their view of Castle Hill, which they had when they acquired the property. While Castle Hill is an iconic landmark of the Townsville landscape and a view of it would be valuable for the Waddells, they have not filed any photographs or other evidence to show that their view is obstructed. Therefore, I have no information before me to say the tree provides a ‘severe obstruction’.[12] However, there are other reasons which justify the removal of the tree which will have the effect of reinstating their view of Castle Hill.
[12]Ibid s 66 (3)(b)(ii).
Compensation
A tree-keeper is responsible for his own tree.[13] Accordingly, the Tribunal has power to make orders requiring a tree-keeper to pay compensation for damage to neighbouring property.[14]
[13]Ibid s 52.
[14]Ibid s 66 (5)(f).
The Waddells have asked for an order for compensation of $450.00, for the two television antennas that have been damaged by the tree and subsequently replaced, but the Waddells have not filed any receipts showing this amount.
On the condition that they file and serve copies of these receipts within 14 days of this order, they should be entitled to this compensation.
Orders
The Respondent must by 4:00 pm on 22 March 2024:
(a) At his cost, cut the African Tulip tree located on the common boundary to the Applicants’ property to a stump. The Respondent is not required to remove the stump, but is required to poison the stump so it does not grow back; and
(b) The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.
If the work is not completed by 22 March 2024, the Applicants will be entitled to have the work performed to the standard in Order 1 (a) above.
If the Applicants are required to carry out the work in default of it being done by the Respondent:
(a) A suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the Applicants (or successor in title) shall be entitled to enter the Respondents land to carry out the work subject to the Applicant giving 14 days written notice of that intention to the Respondent at the Respondents’ last known address; and
(b) The costs incurred by the Applicant engaging a tree lopper and arborist to do the work in default of the Respondent shall be recoverable from the tree keepers as a debt without further notice being given.
The Respondent and any tree lopper or arborist engaged by the Respondent to perform the work shall be entitled to enter the Applicant’s property subject to 72 hours written notice being given of the work to be done.
By 4:00 pm on 22 December 2023, the Respondent will pay to the Applicants $450.00 for the damaged TV antenna provided:
(a) the Applicants file in the Tribunal and serve on the Respondent an invoice and receipt quantifying the $450.00 amount within 14 days of the publication of these reasons.
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