Watson v Barua
[2014] QCAT 201
| CITATION: | Watson v Barua [2014] QCAT 201 |
| PARTIES: | Reuben Phillip Watson (Applicant) |
| v | |
| Nilotpal Barua (Respondent) |
| APPLICATION NUMBER: | NDR113-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 2 May 2014 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. Mr Nilotpal Barua, the registered owner of the lot at 4 Government Road, Labrador QLD 4215 (“the Tree Keeper”) must arrange to have the following works carried out on the tree/s the subject of the claim (“the works”) by: a. clearing of vines from the stem of the glochidion ferdinandi (Cheese Tree); b. removal of 1 limb from the Acacia sp. (Wattle tree) within 60 days. 2. Mr Nilotpal Barua, the registered owner of the lot at 4 Government Road, Labrador QLD 4215 must arrange for the removal of the limb with the location of the final cut as detailed on page 5 of the arborist tree assessment report dated 10 October 2013 at his own cost. 3. The pruning of the Acacia sp. (Wattle tree) is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. 4. Mr Reuben Phillip Watson shall take all reasonable steps to ensure compliance with s 94 of the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 by:- a. directing the arborist to provide notice of their intention to enter the land and carry out the relevant work, at least seven days prior to entering the land, to: i. The owner of the land; and ii. Any lessee of the land that they are aware of and b. directing the arborist to enter the land for the purpose of completing the work only at a reasonable time and only to a reasonable extent needed to carry out the work. 5. The pruning of the Acacia sp. (Wattle tree) and the clearing of the vines must be carried out within 60 days of the date of this order. |
| CATCHWORDS: | TREE DISPUTE – where alleged trees damaged dividing fence, eaves and guttering – where tree situated on easement – identification of the proper tree keeper – compensation – order for removal of trees – where tree removal refused – where trees need to be surveyed – where order made for trimming of branch Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42, 46,48, 49, 62, 66, 71, 72, 73, |
APPEARANCES and REPRESENTATION (if any):
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
This matter was listed for a hybrid hearing but neither of the parties appeared.
Mr Watson owns a property at 56 Brisbane Road, Labrador and he alleges that a tree on the property next door at 4 Government Road, Labrador which was owned by Mr Barua has caused damage to his fence and the branches from the tree overhang onto his property and rest on the roof of his office. He made an application to the Tribunal which was filed on 6 May 2013 in the Brisbane Registry requesting compensation and the removal of the tree.
Mr Barua filed a response on 5 June 2013 stating that he was not sure who owned the land upon which the offending tree was growing. He said the tree was growing on land adjacent to his land, which he thought was on an easement. Mr Barua did not agree that he had to remove the tree as he stated he did not believe that the tree was his responsibility as it was not on his land.
Mr Barua provided a plan of the land and survey of the parties’ properties and adjoining lands.
Mr Watson wants the tree removed as he claims that the tree has grown over the boundary and damaged the fence and pushed it over and the branches that hang over the fence and rest on the roof of his office have dropped leaves into the guttering and caused damage to the guttering and the eaves and he had to replace them. He seeks compensation of $1,200.00 for the damages caused to his fence, guttering and eaves.
Jurisdiction
The Tribunal has jurisdiction because when Mr Watson and Mr Barua 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.[1]
[1] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Act) s 46.
This matter raises the following issues:
a) should the tree be removed? and if so;
b) who should pay for it to be removed?
i)if the tree should not be removed what branches should be removed?
c) is there any damage to the dividing fence and guttering?
Should the tree 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.[2]. 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.[3] The Tribunal is obliged to have regard to these guiding principles.
[2] Ibid s 71.
[3] Ibid s 72.
In addition to these overarching principles, the Act sets out a list of things the Tribunal must consider when determining disputes about trees[4]. 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.
[4]Ibid s 73.
An arborist Mr David Gunther prepared a tree assessment report on 10 October 2013, in relation to the offending trees and identified two trees that are the subject of his report. The trees are the species Glochidion ferdinandi (commonly called a Cheese Tree) and an Acacia sp. (commonly called a wattle).
The expert states that the branches of the tree overhang Mr Watson’s property by more than half a metre and the branches of the wattle tree are in direct contact with the roof of the demountable office belonging to Mr Watson.
The expert identifies an “arboriculturally significant defect in one scaffold of the limb of the wattle tree which overhangs Mr Watsons property” and that there is a likelihood of failure and resultant serious consequences within the next twelve months and resultant damage to property or injury to a person.
The expert’s opinion is that both trees are assessed as mature, native species and as such are arboriculturally and ecologically significant and was noted that both trees provide significant shade to the location.
The expert noted that when he inspected the trees he could not comment on the allegation regarding the alleged damage that the trees had caused to the dividing fence as the fence had already been removed. The expert stated that before any order could be made about that issue, “further investigation was required in that the location of both trees would need to be surveyed, as will the true boundary itself, in relation to the boundary issue, as at the present time it was unclear.”
The expert recommended that the clearing of the vines from the stem of the Cheese tree was required and a return inspection of this area of the tree would be recommended prior to a final decision of any work regarding tree removal. He stated that his recommendation would be for the removal of one limb from the Wattle tree as highly recommended, as there is a significant structural defect present in this large limb. He noted that given the extent to which the limb overhangs Mr Watson’s property in his opinion the limb should be removed as soon as is practicably possible.
FINDINGS
The tree jurisdiction relies on several concepts namely, that a “neighbour”[5] relevantly is the registered owner of land “affected by a tree”[6] and the registered owner of the land on which the tree is situated is the “tree-keeper”[7].
[5] Ibid s 49.
[6] Ibid s 46.
[7] Ibid s 48.
I note the issue of the proper named respondent has been dealt with in a decision of 3 September 2013 by Member Allen regarding that point. I am satisfied that the tree is located on an easement of land that is owned by Mr Barua and that he is the lawful “tree-keeper” and the proper respondent.
I am satisfied that Mr Watson is the registered owner of the land adjoining the tree keepers land and Mr Barua’s neighbour.
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.[8]
[8] Ibid s 62.
The Tribunal’s power to make orders relevantly includes the power to require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land.[9] That is an order sought by Mr Watson in this case.
[9] Ibid s 66(5)(f).
I find that the trees referred to in the application are an acacia and a cheese tree. The expert states that the wattle tree branch overhanging onto Mr Watson’s property is likely to cause within the next 12 months with the potential for serious injury to a person or to property. Having considered section 42 of the NDR Act the Tribunal is satisfied that both the Glochidion ferdinandi and Acacia sp are trees to which chapter 3 of the NDR Act apply.
Mr Watson has not provided any evidence to the tribunal to support his claim for compensation for $1,200.00 for alleged damage caused to the fence, downpipes and eaves. The photos attached to the tree assessors report do not assist in that regard and as identified by the expert the fence had been removed by Mr Watson prior to the report being prepared. If the dividing fence is to be reinstated and is another dispute, the parties can proceed with the usual course of action and negotiations regarding the Dividing fence issue and associated costs. However, the photos of the remaining fence indicate it appears to be constructed from very old timber palings which look to be in need of repair or replacement in any event. Mr Watson’s claim for compensation is refused.
Having considered the overwhelming evidence of the expert that due to issues with the true boundary and location of the trees it is recommended that the location of the trees needs to be surveyed before any other order could be made. The report is limited in its findings and recommendations therefore and in the expert’s opinion the only tree works required is trimming of a branch from the wattle tree that is overhanging Mr Watson’s property. In light of his expert recommendation that is the only order that the tribunal considers is appropriate to make in the circumstances.
When weighing the competing proposals and evidence in this matter and in particular when considering what Orders are appropriate the Tribunal is guided by the provision of section 72 NDR Act which says that ‘a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved’.
What are the Appropriate Orders?
Mr Nilotpal Barua, the registered owner of the lot at 4 Government Road, Labrador QLD 4215 (“the Tree Keeper”) must arrange to have the following works carried out on the tree/s the subject of the claim (“the works”) by:
a. clearing of vines from the stem of the glochidion ferdinandi (Cheese Tree), and a return inspection of this area of the tree
b. removal of 1 limb from the Acacia sp. (Wattle tree) within 60 days
Mr Nilotpal Barua, the registered owner of the lot at 4 Government Road, Labrador QLD 4215 must arrange for the removal of the limb with the location of the final cut as detailed on page 5 of the arborist’s tree assessment report dated 10 October 2013 at his own cost.
The pruning of the Acacia sp. (Wattle tree) is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.
Mr Reuben Phillip Watson shall take all reasonable steps to ensure compliance with s.94 of the Neighbourhood Dispute Resolution Act by:-
a. Directing the arborist to provide notice of their intention to enter the land and carry out the relevant work, at least seven days prior to entering the land, to:
i.The owner of the land; and
ii.Any lessee of the land that they are aware of.
and
b. Directing the arborist to enter the land for the purpose of completing the work only at a reasonable time and only to a reasonable extent needed to carry out the work.
The pruning of the Acacia sp. (Wattle tree) and the clearing of the vines must be carried out within 60 days from the date of this order.
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