Wells v Bruce - [2014] QCAT 586

CITATION:

Wells v Bruce [2014] QCAT 586

PARTIES:

Robyn Wells
(Applicant)
v

Robert Bruce
(Respondent)

APPLICATION NUMBER:

NDR048-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

18 November 2014

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

DELIVERED ON:

18 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for the removal and pruning of trees and for compensation by Robyn Edith Wells is dismissed.

CATCHWORDS :

NEIGHBOUR DISPUTE—where the neighbour seeks the destruction of trees and compensation for property damage; where no risks to persons or property damage is anticipated due to recent pruning and removal of trees; where no appreciable justification for compensation was received;

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 66, 71, & 72

APPEARANCES

Robyn Wells elected not to attend the hearing

Robert Bruce (respondent).

REASONS FOR DECISION

Ms Wells and Mr Bruce are neighbours in the Brisbane suburb of Forest Lake. Some years ago and prior to Mr Bruce purchasing his property, Alexandra Palms and other trees were planted near to the common boundary fence. Over the years they have grown into semi-mature trees.
In or about September 2013, Ms Wells wrote to Mr Bruce asking him to remove four palm trees as dead fronds dropped into her yard and on one occasion, narrowly missed hitting her while she was gardening. She stated that the frond fell on a camellia and it subsequently died.
Upon receipt of the request, Mr Bruce undertook a maintenance program that involved removing fronds that might contribute to further risk and additional minor maintenance.
Despite his efforts Ms Wells continued to seek the removal of the palms and other trees. She corresponded with the Attorney General and also arranged for a letter to be sent to Mr Bruce from the South West Community Legal Centre alleging his contravention of the Act and notified him of legal action if the palms were not removed.
Mr Bruce wrote in response to the Legal Centre’s letter indicating that he was willing to remove two of the four palms that appeared to pose the greatest degree of risk. He challenged Ms Wells’s view that the palm roots were invading her property and responsible for the poor health of plants in her garden. He also undertook to monitor the status of fronds, trim other shrubs, and remove a Murraya that was growing adjacent to the fence.
Ms Wells did not appear at the scheduled time for the hearing. She was contacted by phone and informed the Tribunal officer that she did not intend to appear. In a letter to the Tribunal dated 23 September 2014, Ms Wells wrote, “I will not attend mediation with Mr Bruce, as it would be too emotional and stressful for me … I am in sincere hope that QCAT can make a fair and just ruling based on the facts which speak for themselves.” Ms Wells attached 8 statements of evidence with accompanying photographs. Copies of these documents were received by Mr Bruce and were examined as part of the evidence considered by the Tribunal.
Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) the Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person, if there is a need to remedy, restrain, or prevent serious damage to the neighbours land or property, or if there is substantial, ongoing, and unreasonable interference with the use and enjoyment of a neighbour’s land[1]. Additionally, the Tribunal might make an order if the trees seriously obstruct sunlight or cause severe obstruction to a view from the neighbour’s dwelling[2].
[1] Section 66(2) of the Act.
[2] Section 66(3) of the Act.
The primary concern of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in regard to trees is the safety of any person[3]. In addition, the Act states that the removal or destruction of living trees is to be avoided unless the issue relating to the tree cannot otherwise be satisfactorily resolved[4].
[3] Section 71.
[4] Section 72.
Section 66(5) of the Act contains additional considerations including the payment of compensation to a neighbour for damage caused by the tree-keeper’s trees.
On 23 April 2014, the Tribunal issued directions in regard to the payment for the appointment of an appropriately qualified arborist to carry out an inspection and provide a report to the Tribunal on the issues raised in Ms Wells’s application. Mr Jonathan Hobbs conducted an inspection on 14 June 2014.
Mr Hobbs provided a number of photographs identifying the site and the palm trunks that grow near the boundary fence and of two Lilly Pillys that have been trimmed back from the dividing fence.
Mr Hobbs notes four trees were implicated in Ms Wells’s application. He writes that the Alexander Palm is still quite young and now consists of two only (of four original) trunks arising from a single bole. The Lilly Pillys (also young) have been pruned back to approximately 400mm from the dividing fence, and the Murraya has been cut down to the stump. He states that there is no vegetation that significantly overhangs the dividing fence. He continues that Ms Wells raised concerns over the palm roots that limit water and nutrients to her garden but he does not consider that this would be significant due to the nature of the root system. He concluded that the tree work undertaken by Mr Bruce has largely dealt with Ms Wells’s concerns and suggested biannual monitoring and pruning to maintain the present conditions.
In coming to a decision in this matter the Tribunal has taken into consideration the evidence provided by Ms Wells and Mr Bruce and also their responses to Mr Hobbs’s report.
Mr Bruce concurs with the arborist’s conclusions but also comments on matters about which this Tribunal has no jurisdiction. He concludes that Ms Wells may not be satisfied until all trees have been removed.
Ms Wells remains convinced that fronds will continue to fall into her yard as the palm grows, is sceptical that Mr Bruce will remain committed to the monitoring role that Mr Hobbs advised, places considerable emphasis on a Council identification of Alexandra Palms as a weed species in South East Queensland, and contradicts Mr Hobbs’s view about the origin of roots found in her garden. She also raises several matters over which the Tribunal has no jurisdiction.
The Tribunal recognises Ms Wells’s interest in her garden, concerns for her safety from falling fronds, and the well-being of plants in her garden. Her own photograph (No 1) and Mr Hobbs’s (on Page 10 of 17), however, show that there is little overhang of palm fronds into her property, with the attachment point of fronds to trunk being well inside Mr Bruce’s land. This suggests little risk to person or to Ms Wells’s property. Mr Bruce gave evidence that, to the best of his knowledge, no frond has fallen into Ms Wells’s property since he removed the two trunks.
Section 72 of the Act states that a tree should not be removed if another satisfactory resolution is found. Mr Hobbs is of the view that the removal of two palm trunks and the Murraya and the pruning of the Lilly Pillys is sufficient to reduce any risk.
Mr Bruce gave evidence that he has endeavoured to respond to Ms Wells’s concern but wishes to maintain the visual effect of the remaining Alexandra trunks in his largely tropical-style back garden.
The Tribunal finds that Mr Bruce has responded in an adequate way to Ms Wells’s concerns and that at this time, the Alexandra Palm does not constituted a risk of serious injury or substantial, ongoing, and unreasonable interference with the use and enjoyment of her land. The Tribunal finds no justification for the removal of the remaining two palm trunks or any other tree.
As for compensation of $100 sought by Ms Wells in her application, no justification has been provided for this amount. The Tribunal, therefore, finds no basis for monetary compensation.
The application for the removal and pruning of trees and for compensation by Ms Wells is dismissed.