Wallace v Keg
[2012] QCAT 466
•18 September 2012
| CITATION: | Wallace v Keg [2012] QCAT 466 |
| PARTIES: | Julanne Wallace |
| v | |
| Lynne Keg |
| APPLICATION NUMBER: | NDR030-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Maryborough |
| DECISION OF: | Aaron Suthers, Member |
| DELIVERED ON: | 18 September 2012 |
| DELIVERED AT: | Maryborough |
| ORDERS MADE: | 1. The Application is dismissed. |
| CATCHWORDS: | TREE DISPUTE – where tree litter falling into neighbouring property – where tree contained wholly in tree keepers land –whether causing substantial, ongoing and unreasonable interference – appropriate order Neighbourhood Disputes Resolution Act 2011, ss 42, 46, 65, 66, 72, 73, 75 Barker v Kyriakides [2007] NSWLEC 292 |
APPEARANCES and REPRESENTATION (if any):
This matter was scheduled for hearing on the 31st of August 2012 at Hervey Bay.
On that date the Respondent, Ms Keg, was unable to appear due to a recent bereavement. Whilst she did not seek an adjournment, the Tribunal determined that it was appropriate for Ms Keg to have the opportunity to appear, if she wished, for an oral hearing. The Tribunal determined that, in the absence of her making an application to do so, the matter would be determined upon the papers.
No such application was received and so this matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Keg is a tree keeper as defined in the Neighbourhood Disputes Resolution Act 2011 (“the NDR Act”).
Ms Wallace is her neighbour.
The trees referred to in the application are a Moreton Bay ash (Corymbia tessellaris) and a stand of bamboo. As at the date of hearing, neither the branches of the Moreton Bay ash nor any part of the bamboo overhang Ms Wallace's property.
Whilst in her application Ms Wallace raised concern about the potential for damage or injury from branches falling from the Moreton Bay ash, there is no evidence that there is any real risk of this.
Ms Wallace does complain that leaf litter and other debris from the Moreton Bay ash fall into her yard and, in particular, block her gutters and dirty her pool.
She further complains that the bamboo, which was planted by Ms Keg close to the common boundary fence, and only noticed by her during the course of the proceedings, was likely to overhang the fence at a height of up to 4 meters, and cause further debris to fall into her yard and pool.
Before the matter was required to be decided, Ms Keg took steps to destroy the stand of bamboo, although it is clear from photographs produced to the Tribunal that roots remain which may reshoot if unmanaged. Ms Wallace is of the view that whilst this remedial action is satisfactory, there is likely to be substantial ongoing and unreasonable interference with her use and enjoyment of the land caused by debris from the bamboo, if it is allowed to grow and encroach closer to the common boundary between the parties.
The Tribunal can make an order about a tree to remedy, restrain or prevent substantial ongoing and unreasonable interference with Ms Wallace's use and enjoyment of her land[1]. Such an order can be made where the interference is occurring as at the date of the hearing, or is likely, within the next 12 months.[2]
[1] Section 66(2) Neighbourhood Disputes Resolution Act 2011.
[2] Section 46 Neighbourhood Disputes Resolution Act 2011.
Having considered section 42 of the NDR Act the Tribunal is satisfied that both the Moreton Bay ash and the bamboo, are trees to which chapter 3 of the NDR Act apply.
This is so notwithstanding that the part of the bamboo which is likely to cause interference has been largely removed.[3] When considering the matter the Tribunal has had regard, as it must, to section 73 NDR Act.
[3] Section 68(1) Neighbourhood Disputes Resolution Act 2011.
The Tribunal may also have regard, given the allegations made in this matter, to the provisions of section 75 NDR Act. Those provisions have, where there is relevant evidence, been considered. Where an issue has been particularly relevant, or has weighed heavily in the balance required of the Tribunal in considering the matter, they are referred to specifically below.
The Tribunal is precluded from making any orders in relation to a tree under Chapter 3 of the NDR Act unless the requirements of section 65 of the Act are met. Here, those matters are uncontroversial and the Tribunal has the power to make an order under section 66 of the Act.
A report from a tree assessor appointed by the Tribunal, Mr David Roberts, indicates that there is leaf drop and the potential for other debris from the Moreton Bay ash to enter Ms Wallace's property. He confirms that there is no reasonable likelihood of damage or injury from falling branches.
Ms Wallace says, and the Tribunal accepts, that whilst there may be some leaf matter entering her gutters and pool from other trees and plants contained in her property, the debris from the Moreton Bay ash is significantly contributing to the need for her to regularly pay to have her gutters cleaned and the need for her to regularly clean her pool, to make it appropriate for her use.
Is the tree causing substantial, ongoing and unreasonable interference with Ms Wallace's use and enjoyment of her land?
Legislation of this nature is relatively recent in Queensland.
In a decision of Thompson v White [2012] QCAT 381 Senior Member Stilgoe, in considering a similar issue, noted that the Neighbourhood Disputes Resolution Act 2011 was modelled, in part, on the New South Wales Trees (Disputes Between Neighbours) Act 2006. Section 7 of the New South Wales Act provides:
An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
She referred with approval to a decision of the Land and Environment Court of New South Wales, where it was determined[4] that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. The Court took that view because it found that:
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
[4] Barker v Kyriakides [2007] NSWLEC 292 at [20].
Whilst decisions of the New South Wales Land and Environment Court, and indeed the decision of Senior Member Stilgoe are not binding on this Tribunal, the Tribunal is satisfied that it should, when considering whether interference is substantial and unreasonable, follow the concise and considered reasoning referred to above.
In her written material before the Tribunal Ms Wallace indicated that the only remedy satisfactory to her in relation to the Moreton Bay ash would be its removal.
When weighing the competing proposals and evidence in this matter the Tribunal is guided by the provision of section 72 Neighbourhood Disputes Resolution Act 2011 which states:
a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved
Whilst at the aborted oral hearing Ms Wallace indicated a willingness to compromise on this point, there was no evidence before the Tribunal that a course of pruning or size reduction of the Moreton Bay ash would be appropriate. Indeed, the evidence of the tree assessor was that modifying the tree crown was not a recommended action to mitigate nuisance concerns associated with the tree.
The Tribunal is satisfied that debris falling from the Moreton Bay ash enters Ms Wallace’s gutters and pool, but when balancing the issue of reasonableness it finds that the interference and expense caused is not unreasonable.
Can the Tribunal make an order compensating Ms Wallace for her ongoing expense as part of a remedy under the Act?
Whilst the Tribunal accepts that Ms Wallace is put to extra expense in managing the debris from the Moreton Bay ash, it has found that the interference is not unreasonable. In those circumstances the Tribunal cannot make a remedial order the Act.[5]
[5] Section 66(2) Neighbourhood Disputes Resolution Act 2011.
What are the appropriate orders?
For the reasons outlined above the Tribunal is satisfied that the application in relation to the Moreton Bay ash ought be dismissed.
There was little direct evidence before the Tribunal regarding the bamboo. The Tribunal accepts that Ms Keg has commenced a process of removing it. There is therefore no evidence that there is a likelihood that its unchecked growth and spread would be likely to cause significant ongoing and unreasonable interference with Ms Wallace’s use and enjoyment of her land within the next 12 months.
Orders
The application is dismissed.
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