Anthony v Kapitzke & Anor [2020] QCAT 233

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Anthony v Kapitzke & Anor [2020] QCAT 233 PARTIES: DAHARSALA ANTHONY (applicant) v LAURIE KAPITZKE AND BRONWYN KAPITZKE (respondents) APPLICATION NO/S: NDR188-17 MATTER TYPE: Other civil dispute matters DELIVERED ON: 22 June 2020 HEARING DATE: 7 May 2019 HEARD AT: Mackay DECISION OF: Member Barker-Hudson ORDERS: Laurie and Bronwyn Kapitzke, the registered owners of the Lot at 4 Maguire Street, Andergrove, Mackay Qld, will arrange to have these works carried out on the trees the subject of this dispute: (a) The large branch on the tree marked “2” on the Arborists sketch be removed; (b) The large branch on the tree marked ”3 “ on the Arborists sketch be removed; (c) Palm “1” on the Arborists sketch be removed; and (d) Following removal of Palm “1,” if Palm “2” poses any risk to the power supply to Dharsala Anthony’s house, Palm 2 be removed. All works are to comply with the requirements of Australian Standard 4373-2007 Pruning of amenity trees. All works to be completed by an appropriately qualified and insured arborist with a minimum qualification of Australian Qualification Framework level 3. All works to be at the cost of Laurie and Bronwyn Kapitzke. Dharsala Anthony will allow the arborist reasonable access to her property to perform the -- 1 of 14 -- 2 works with Laurie and Bronwyn Kapitzke giving her seven (7) days’ written notice. All works to be carried out within 90 days of the date of this order. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees significant danger to person or property – whether tree branches and litter falling on property likely to cause serious damage to land and property – whether tree roots likely to cause structural damage, to property – whether palms likely to cause interference with power supply ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Meleleuca leucadendra - nature and growth, remnant vegetation, protective factors in cyclones, wildlife habitat – council preferences trees remain Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 41(1), s 42, s 42(1), s 42(3)(a), s 42(4), s 42(5), s 46(a)(i), s 52, s 66, s 73, s 74, Dictionary APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION The Applicant, Dharsala Anthony, made an Application to QCAT on 1 November 2017 for the removal of seven Melaleuca trees and two palms at the Respondents’ cost under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’). The Applicant sought the removal of the trees and palms likely to cause significant injury to a person and damage to property within 12 months. Ms Anthony stated that the trees interfere with her enjoyment of the property as they cast branches on her roof, leave excessive litter in her garden, have caused serious damage to a shed roof, and interfere with breezes which promotes mould growth and clogs gutters. She agreed that the trees were present when she purchased the house. Ms Anthony stated that the trees contribute to her anxiety and she had to sleep in rooms away from the overhanging trees during a recent cyclone. She provided evidence of current treatment for her anxiety. The Applicant provided statements from a neighbour and her medical advisers to support her application. -- 2 of 14 -- 3 The Applicant stated that the trees overhang her house and mean that she would be restricted in installing solar power to her property. The palms also interfere with, or could interfere with, power lines to the property. Ms Anthony stated at the hearing that she thought that the Respondents had planted the trees. The Respondents, Lawrence and Bronwyn Kapitzke, the tree-keepers, live in the adjoining house to that of the Applicant,1 which is not separated by a road.2 Through discussion and conciliation at the hearing, they agreed to remove the branch overhanging their neighbour’s house and palm/s that might interfere with her power supply. The Kapitzkes are unwilling to remove the seven trees because of their amenity, provision of a wildlife habitat, and being remnant vegetation of the area. The Respondents said that the trees were on the property when they bought it nearly 40 years ago. The trees were identified by an Arborist as Melaleuca leucadendra, commonly known as paperbark trees. The Arborist stated in various places in the Report that: … large maturing specimens and would be possibly over 70+ years of age. The trees are on site prior to the development of the blocks of land on site. These trees would be considered as remnant vegetation… Adjacent to this area is an expanse of land that is recognised as hosting the older stand of Melaleuca leucadendra forest in Australia. The applicant has trees of the same species and age class on her property. The applicant has removed 3 large paperbark and 3 large palms from her property between 30 November and 1 December 2015.that overhung her roofline. There are definitely 3 trees that are contributing to overhanging branches onto the applicant’s land. The two trees that require pruning only have minimal branching and at height over the land. The specimens are in situ prior to the land been subdivided for housing approximately 40 years ago. At this time the trees were left on the building site as can be witnessed by the location of Tree 1 on the boundary of both properties. The persons who bought these bocks of land, obviously purchased the land due to the trees. It is apparent that during the development of the blocks over 38 years ago, the appeal of the blocks was the presence of these magnificent specimens and the presence created as well as the benefits. The area is recognised as an environmentally significant natural resources – Keely Rd Wetland Environmental Management Plan. The specimens (melaleuca trees) are well known to tolerate and withstand severe weather events and cyclonic winds … this species still standing in some of most severe cyclones to pass through coastal communities from the far north to southeast Qld. Mackay has been through severe cyclones in past few years. In my professional opinion the risk of trees / palms causing serious injury to any person within the next 12 months is extremely low… Leucadendra, are a specimen that are not commonly renowned for dropping limbs. 1 NDA, s 49(1)(a), (1)(a)(i). 2 Ibid s 46 (b)(ii). -- 3 of 14 -- 4 Having relevant past experience with Meleleuca in my professional opinion there is no evidence presented to allege the trees have caused or are causing on- going, unreasonable interference with the use or enjoyment of the land. The image supplied by the applicant of a branch on a roof is considered to be one of a twiggy branch. There is no evidence as viewed from ground inspection of any large limbs coming away within any of the trees branching. A Submission from the Mackay Regional Council included a vegetation management map which identified the trees as ‘Category X (white)’,– areas which are non-remnant, not-regulated regrowth, and not subject to compliance notices, offsets or voluntary declaration. The trees are ‘not subject to a vegetation protection order and the Mackay Regional Council’s consent is not required to carry out work on the trees.’ The submission continued: ‘However, if the trees are healthy, Mackay Regional Council’s preference is for the trees to remain due to their status of growth and significance to the area’. The issues to be determined are: (a) Whether the trees and palms are a significant risk3 of injury to a person, serious damage to land and or substantial, on-going and unreasonable, interference with the use and enjoyment of the neighbour’s land; and (b) If there is a significant risk the land is affected, what is the appropriate order? Statutory framework The object of the NDA includes facilitating disputes between neighbours. The Primary objective of the legislation is safety,4 and that living trees not be removed unless issues cannot be satisfactorily be resolved otherwise.5 The Tribunal may make appropriate orders concerning a tree affecting a neighbour’s land to prevent serious injury to the person,6 to remedy, restrain or prevent serious damage to the neighbours land or any property on the land,7 or remedy, restrain or prevent substantial on-going and unreasonable interference with the use and enjoyment of the land.8 3 Ibid ss 66(2), (3), (5). 4 Ibid s 71. 5 Ibid s 72. 6 Ibid s 66(2)(a). 7 Ibid s 66(2)(b)(i). 8 Ibid s 66(3)(b)(ii). -- 4 of 14 -- 5 The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if the land is said to be affected by the tree.9 Land is affected by a tree if it has branches that overhang the land,10 or the tree has caused, is causing, or is likely to cause, within the next 12 months, serious injury to a person on the land.11 The trees identified are trees to which the Act is applicable.12 When deciding matters concerning trees that are within the jurisdiction of the Act, the Tribunal must have regard to matters in s 66 of the NDA and consider matters in s 73. Is the Applicant’s land affected by the specified trees? I am satisfied that the trees in question are within the meaning of s 45 of the NDA. The disputants are adjoining neighbours.13 The Respondents bought the land and built a house there some 40 years ago and cite the environment as being an important factor in this decision. Ms Anthony purchased her house in 2015 following the property being owned by at least three previous owners. The trees under dispute were present when the Applicant purchased the property and that only branches of less than two inches in diameter have fallen on her roof. The Tribunal appointed Trees Assessor, Ms Roxanne Taylor QTRA No 3426 (Arborist), to assess the trees and prepare a report (Arborist Report). The Arborist made a sketch of the seven trees (assigned numbers 1-7) and the two palms in relation to the location of houses and fences (Arborist Sketch - Attachment A) The Arborist Report provided an aerial picture of the properties (Appendix 2) and ground-level views from the front of the property (Appendix 3) and shows branches over-hanging the boundary (indicated by arrows). The Report also provided pictures of the palms, house, gutters, shed, pavers and the lagoon at the back of the property. The Arborist commented on the state of the trees and palms and made Recommendations concerning trees 1-7, the palms, and management of the trees and property. The Arborist in relation to the issues stated that: (a) Tree 1 – ‘this paperbark at the front of the property is shared and responsibility falls to both parties. This mature specimen is approx. 18m in height and DBH of 0.88m. The trees is healthy condition and is exhibiting good vigour and vitality…’ (i) Recommendation – ‘this tree requires no action from the respondents’… ‘is a shared tree’… and ‘is a natural existing specimen prior to the land being divided’. This specimen has been deemed to require retention. (b) Tree 2 – ‘the tree is approx. 18m height in healthy condition and structurally sound with no notable defects. There are branches over the Applicant’s property.’ 9 Ibid s 61. 10 Ibid s 46(a)(i). 11 Ibid s 46(a)(i)(A). 12 Ibid s 42(3). 13 Ibid s 46(b). -- 5 of 14 -- 6 (i) Recommendation – to have overhanging branch pruned back to appropriate branch unions on sections of scaffold that are overhanging the boundary line. (c) Tree 3 – ‘the tree exhibits good vigour and vitality and appears structurally sound with no notable defects. The tree is a habitat tree and has numerous animal scratching’s along the papery bark. The tree has good taper at root collar and no defects present to suggest failure at the root plate. There is no damage to the canopy due to recent severe weather events. There are branches over the Applicant’s property’. (i) Recommendation – ‘to be completely cut back from overhanging the applicant’s land’. The tree-keeper may retain a stump that does not overhang the Applicant’s land. (d) Tree 4 – ‘the tree exhibits good vigour and vitality and appears structurally sound with no notable defects. The tree canopy is wholly within the respondents’ land. No damage to canopy due to recent weather events’. (i) Recommendation – ‘requires no action.’ (e) Tree 5 and 6 and 7 (similar in each case) – The trees are healthy and exhibit good vitality and vigour, are structurally sound and have no notable defects. Trees 6 and 7 have branches over the Applicant’s property (i) Recommendations: A. Tree 5 – ‘to have minimal overhanging branches pruned back to an appropriate branch union’. B. Tree 6 – ‘to be completely cut back from overhanging the boundary” stump may be retained’. C. Tree 7 – ‘to be removed’. Stump may be retained. (f) Palms – the Arborist stated that they are approx. 5m in height, healthy, and with no defects. (i) Recommendations: A. Palm 1 – ‘to be removed to ground level’. B. Palm 2 – ‘require[s] a few fronds removed following removal of Palm 1.’ (g) Root damage – In respect of root damage, the Arborist stated that ‘there is no evidence presented to suggest the tree roots are damaging the foundations of the house’. (h) Shed – The Arborist made general comment that: … the condition of the garden shed has not occurred in [the] past 3 years … the damage has occurred over many years. The respondent has confirmed the garden shed is over 20 years of age and this is consistent with the current state of the shed… -- 6 of 14 -- 7 (i) Solar panels – The Arborist opined that there is ample roof area to install solar panels, the trees are not blocking the sun access to the roof. Is it appropriate to make an order in relation to the trees and palms? The neighbours have been in dispute concerning these trees and palms since 2015. It is therefore appropriate to make orders for the management of the trees and palms. The trees 1-7 are all healthy, unlikely to cause damage in the next 12 months and are of considerable value as remnant vegetation, and as wildlife habitat and may be protective in severe winds. The Mackay Regional Council submitted its preference that the trees ‘remain due to their status of growth and significance to the area’. The Arborist did not consider that the trees caused significant shading of the roof of the Applicant’s house or the roots damage to the foundations of the house. The leaf litter is normal in such an area. The Applicant provided testimony as to the distress the trees were causing her since she moved to the property in 2015. She noted her fear of losing her power supply if the palms were to fall on the wire connecting her house, although, the major power lines outside the property are managed by the electricity company. She was supported by a Statement from a neighbour and medical evidence. The Applicant supplied information concerning her shed (pictures and oral evidence) to support the need to remove the trees and that pavers on her property have lifted due to tree roots. The Applicant also provided pictures of leaf litter in her garden. I accept that the age and poor maintenance of the shed prior to the Applicant’s ownership probably have more impact than the dropping of some minor tree branches. I also accept that attempts to remedy the roof, by pushing it outwards, as stated by the Applicant and witnessed by the Respondents, may have done more damage than good. In respect of the installation of solar power, the Arborist considered that there was ample area for the installation of solar power by the Applicant. I accept this appraisal particularly if overhanging branches have been removed through these orders. The Respondents emphasised that they purchased the land because of its natural features, wildlife and the environment of the area. They stated that they had made offers to remove an overhanging branch from Tree 2 and remove the palm that caused the Applicant concern for her power supply. I accept the Arborist’s opinion that the trees are healthy and exhibits good vigour and vitality. I acknowledge the preference of the Mackay Regional Council that trees remain in the area and note the requirement of the Act, that trees not be removed unless risk cannot otherwise be mitigated. In relation to all the trees, both parties agreed that engaging an AQF arborist Level 5 is extremely difficult in Mackay. I accept that supervision of work would be best conducted by a Level 5 arborist but if this entails unreasonable cost and difficulty that a suitably qualified Level 3 arborist may be engaged to perform work within their competence. If recommended by the Level 3 arborist, a more qualified person will be engaged to supervise the work. -- 7 of 14 -- 8 Tree 1 The maintenance of trees is a tree-keepers responsibility. The Applicant and Respondents are equally responsible for the ongoing management of this jointly owned tree which is situated on the fence-line of the properties. Tree 2 Tree 2 has a significant overhanging branch over the Applicant’s property. The Respondents agreed to undertake this branch removal. The removal is to be at the Respondents’ expense with the Applicant providing any needed access to her property. Tree 3 I do not accept the Arborist’s recommendation that this tree be removed. Her opinion seems to be based on the removal of the tree will bring dispute between the neighbours to an end. I accept that Tree 3 does lean over the Applicant’s property and that it has done so for many years. The tree is sound and frequently used by local wildlife. The Arborist noted that ‘There is no damage to the canopy due to recent severe weather events’. I find that Tree 3 poses no significant risk in the next 12 months. The Respondents did at one stage agree to the removal of the overhanging branch if no wildlife was using the branch for nesting (see picture and annotation Appendix 4). Removal of large branch may also mitigate the passage of wildlife from the tree via the shed and to the Applicant’s roof causing damage to these structures. The tree adds to the amenity of the area, the local ecosystem being close to a significant wetland, and is of significance to the natural ‘value’ of the area.14 This work to be undertaken at the Respondents’ expense. Tree 4 No action is required. Tree 5 I accept the recommendations of the Arborist that overhanging branches be pruned back to a suitable union with the main tree. This work to be undertaken at the Respondents’ expense. Tree 6 I do not accept the Arborist’s recommendation that the tree be removed. The tree is sound, has stood in the present position probably prior to the development of the area, is of amenity and has protective utility in severe winds and indeed remained intact in recent severe weather events. 14 Ibid s 73. -- 8 of 14 -- 9 Tree 7 I do not accept that the tree should be removed as it is ‘structurally sound with no notable defects’. I consider that the amenity, wildlife and protective nature of a tree should be recognised. If there are any large overhanging branches similar to those in Tree 2 and 3, these be removed at the Respondents’ expense. Palms 1 and 2 The Respondents agreed to remove palm 1 which has the possibility of interfering with the power line to the Applicant’s property. I agree that this action should be undertaken and paid for by the Respondents. If after removal of palm 1, it is found that palm 2 poses a similar danger, it is also to be removed or cut back such that danger be mitigated. Tree roots The Arborist found that there was no evidence that tree roots were damaging the foundations of the Applicant’s house. Some pavers might be being lifted by tree roots but there is no ‘boundary’ to the pavers and such lifting can have several causes other than tree roots. The management of pavers is a usual part of property maintenance. Amenity to install solar power and leaf litter I accept the Arborist’s opinion that the trees will not interfere with the possibility of installing solar power on the Applicant’s roof. The leaf litter on the Applicant’s land appears natural in respect of the species of trees present. Melaleuca leucadendra is reputed to lose its leaves rather than branches in severe winds. What order should be made in relation to the trees and palms? I make the orders set out below: 1. Laurie and Bronwyn Kapitzke, the registered owners of the Lot at 4 Maguire Street, Andergrove, Mackay Qld, will arrange to have these works carried out on the trees the subject of this dispute: (a) The large branch on the tree marked “2” on the Arborists sketch be removed; (b) The large branch on the tree marked ”3 “ on the Arborists sketch be removed; (c) Palm “1” on the Arborists sketch be removed; and (d) Following removal of Palm “1,” if Palm “2” poses any risk to the power supply to Dharsala Anthony’s house, Palm 2 be removed. 2. All works are to comply with the requirements of Australian Standard 4373 - 2007 Pruning of amenity trees. -- 9 of 14 -- 10 3. All works to be completed by an appropriately qualified and insured arborist with a minimum qualification of Australian Qualification Framework level 3. 4. All works to be at the cost of Laurie and Bronwyn Kapitzke. 5. Dharsala Anthony will allow the arborist reasonable access to her property to perform the works with Laurie and Bronwyn Kapitzke giving her seven (7) days’ written notice. 6. All works to be carried out within 90 days of the date of this order. -- 10 of 14 -- 11 Appendix 1 – Arborist’s sketch -- 11 of 14 -- 12 Appendix 2 – Aerial view of houses in 2016 ’s property - 6 Respondents’ property - 4 -- 12 of 14 -- 13 Appendix 3 – Trees with overhanging branches -- 13 of 14 -- 14 Appendix 4 – Tree 3 – Overhanging branches -- 14 of 14 --