Attwell v Oman [2017] QCAT 251

CITATION: Attwell & Anor v Oman & Anor [2017] QCAT 251 PARTIES: Kenneth William Attwell Shirley Attwell (Applicants) v Hayley Nyree Oman Karl Henry Oman (Respondents) APPLICATION NUMBER: NDR197-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Bridgman DELIVERED ON: 19 July 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Hayley Nyree Oman and Karl Henry Oman must undertake the following tree works in relation to the Persea americana (‘the avocado tree’) situated on land at 32 Wareham St, Aitkenvale: a) The branches of the avocado tree overhanging the boundary between 32 and 34 Wareham St, Aitkenvale must be cut and removed; b) A crown clean of the canopy of the avocado tree is to be undertaken to reduce the canopy to a safe level; and c) Annual maintenance must be undertaken to ensure the continued safety of the tree and its canopy (together, ‘the tree works’); -- 1 of 9 -- 2 2. Hayley Nyree Oman and Karl Henry Oman are equally responsible for the cost of the tree works. 3. The tree works must be completed by no later than sixty (60) days from the date of this order and annually within 60 days of the anniversary of this order. 4. The tree works must be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist. 5. Should Hayley Nyree Oman and Karl Henry Oman fail to comply with orders 1 and 3, Kenneth William Attwell and Shirley Attwell by their servants or agents are authorised to enter upon 32 Wareham St, Aitkenvale to cause the tree works to be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist; 6. Kenneth William Attwell and Shirley Attwell may recover from Hayley Nyree Oman and Karl Henry Oman the cost of the tree works. 7. On or before 4:00pm on 27 July 2017, Hayley Nyree Oman and Karl Henry Oman must pay Kenneth William Attwell and Shirley Attwell costs fixed at $701.45 as follows: a) Costs for this application fixed at $315.70; b) The costs of conducting property searches fixed at $55.75; c) 100% of the costs of the arborist’s report fixed at $330. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree overhangs property – where tree should be trimmed and maintained and not removed -- 2 of 9 -- 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 45, s 52, s 57, s 59, s 65, s 66, s 73, s 79, s 83 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Borchi v Kettle [2017] QCAT 200 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Kenneth and Shirley Attwell are registered proprietors of land at Aitkenvale (Attwell land), neighbouring land occupied by Hayley Oman, but registered to her and Karl Oman as joint tenants (Oman land). [2] There is large avocado tree on the Oman land that is the subject of this application. The Attwells seek orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) for the removal of the tree at the Omans’ expense, and their costs in bringing the application including filing fees, search fees and the cost of an arborist’s report. [3] Before making this application, Mrs Attwell wrote and spoke to Ms Oman several times. Copies of letters or notes to and from Ms Oman, and Mrs Attwell’s notes of the conversations were attached to the application or otherwise filed with the Tribunal. That material indicates that Mr Oman no longer resides at the address, although he remains a joint tenant on the title. [4] The tree in question was apparently damaged in Cyclone Yasi in 2011, losing its crown, and consequently damaging a block wall serving as a pool fence on the Attwells’ property. Their submission was that the damage caused by the tree cost $7500 to repair. [5] Since then the tree has experienced significant regrowth. [6] The Attwells complain that the tree significantly overhangs their property, and drops a large amount of leaf, flowers and fruit affecting their swimming pool filtration system. [7] The Attwells obtained a report from Adam Cozzitorto, Arborist, about the tree. He conducted an inspection on 12 May 2017. He noted that the tree is between 15 and 25 years old, healthy with a “spread/canopy of over 50% over the property/fence line” into the Attwells’ property. He also noted the tree had lost its crown some 5 or 6 years ago, which he thought was most probably caused by Cyclone Yasi. The effect was that the otherwise healthy tree was producing multiple epicormic shoots which were weak, and when fruit-laden increased the risk of limb failure to “high”, and potentially causing damage to property or person. -- 3 of 9 -- 4 [8] The arborist’s recommendation was: “to remove the tree OR have the tree pruned by a qualified arborist (level 5) to reduce the canopy down to a safe level but this will in turn have to be done regularly to ensure the safety of the tree.” [9] The arborist’s report does not state the dimensions of the tree but it is clear from the photographs that it is far higher than 2.5m and likely that there are overhanging branches higher than 2.5m above the ground.1 The overhang is apparently, again from the photographs, greater than 50cm: ss. 57(1)(a), 65(c)(i). The Attwells’ application, while not providing tree dimensions, is also consistent with an inference that the overhang is greater than 50cm and at heights above 2.5m. Findings [10] On the basis of the evidence, the Tribunal is satisfied that: a) The avocado tree: i) is a tree for the purposes of s 42 and s 45; ii) is located on the Oman land; and iii) overhangs the Attwell land greater than 50cm2 and at a height greater than 2.5m;3 b) The Omans, as registered owners of the Oman land are: i) neighbours of the Atwells;4 ii) the tree-keepers for the avocado tree;5 iii) equally responsible the avocado tree;6 c) The Attwells: i) have in the past removed lower overhanging branches; ii) attempted to reach agreement with Ms Oman and otherwise satisfied the requirements of s 65(a) and (b); iii) gave notice to Ms Oman to remove overhanging branches as required by NDA, s 41(b)(i); 1 See NDA, s 57(1)(b) and s 59. 2 NDA, s 65(c)(i). 3 Ibid, s 57(1)(b) and s 59. 4 Ibid, s 49. 5 Ibid, s 48. 6 Ibid, s 53. -- 4 of 9 -- 5 iv) gave a copy of their application to Ms Oman, and file a copy of the sworn affidavit of service;7 v) generally complied with Directions issues in the proceedings; d) The Omans:8 i) did not remove overhanging branches despite the Attwells’ request; ii) have not maintained the tree according to their obligations; iii) not attended compulsory conferences or asked for compulsory conference dates to be vacated for a stated reason; iv) have not complied with directions made by Senior Member Brown requiring them to respond to the application, failed to attend compulsory conferences,9 and have otherwise not participated meaningfully in these proceedings. Does the avocado tree affect the Attwell land? [11] The avocado tree overhangs the Attwell land, and they have in the past wanted overhanging branches removed. Part 4 of the NDA, about removal of overhanging branches, is therefore satisfied, and the responsibilities of the Omans under s 52(1) are clearly enlivened. [12] But the Attwells want more than low level overhang dealt with. They complain the tree, because a limb may fall, poses a serious risk to their property or to people on their property. Further, they seek removal of branches higher than 2.5m above ground level, and have applied for an order for the tree to be removed. The damage to the tree in 2011 exacerbates their fears the tree might cause more damage to their property in another cyclone (a consideration under NDA s 73(1)(i)). They are also concerned about the leaf, flower and fruit litter that they say affects their swimming pool filter. [13] The order sought in the application is a discretionary order under s 66 of the NDA about a tree “affecting the neighbour’s land”, in order (a) to prevent serious injury to a person, or (b) to remedy restrain or prevent (i) “serious damage” to the neighbours land or property on it, or (ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. 7 See NDA, s 65(d), and s 53(b). 8 All correspondence on file and with the Tribunal has been with Ms Oman. Mr Oman has not participated at all in the proceedings and appears to not to occupy the land of which he is a register proprietor. 9 Ms Oman did notify the Tribunal she would be interstate for at least one of the Compulsory Conference dates set. -- 5 of 9 -- 6 [14] The Attwells assert that the tree losing its crown in 2011 caused $7500 damage to a wall on their property. While not supported by evidence, the assertion is before the Tribunal albeit untested. There is evidence that the tree was vulnerable to cyclone damage in 2011. Evidence of future vulnerability is limited to inference that might be drawn from the brief arborist report. [15] Further they assert possible damage or loss of amenity from leaf litter and flower and fruit drop. The arborist report makes no mention of these factors, and no particular evidence is given beyond the assertion. As Senior Member Brown noted in Borchi v Kettle [2017] QCAT 200: The presence of leaf litter is generally not a basis for a finding that a tree unreasonably interferes with the use of and enjoyment of a neighbour’s land in a substantial and ongoing way. Of course, every tree dispute must be considered and determined on its facts and there may be instances where the presence of leaf litter satisfies the requirements of s 66(2). [16] But the report does indicate that the risk of limb failure during fruiting season is ‘high’, and could cause damage to property or person. [17] I am satisfied on balance that the tree affects the Attwells’ land and that the conditions in s 66(2) are met because the high risk of limb failure could lead to serious damage to property or damage to a person. Appropriate order [18] The Tribunal has considered the matters in s 73(1)(a)-(k) in making an order under s 66, in light of the findings stated above. The factors of note in deciding this matter include: a) On the evidence no local government or other authority’s consent is required for works on or removal of the avocado tree;10 b) There was evidence, from both past events and the arborist report, that the avocado tree might cause damage to the Atwell property in a future cyclone;11 c) By inference from the arborist report, the avocado tree could be trimmed and maintained and kept healthy if the work was performed by a suitably skilled arborist.12 Removal [19] The application seeks removal of the entire tree. Section 72 of the NDA provides: 10 NDA, s 73(1)(b). 11 Ibid, s 73(1)(i). 12 Ibid, s 73(1(j). -- 6 of 9 -- 7 A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. [20] Based on the arborist’s report, the tree can be managed if the crown is cleaned and the canopy made safe and with regular maintenance. It follows that removal or destruction of the tree should not be ordered by the Tribunal. Instead, an order will be made that the tree be made safe in the first instance and maintained annually. [21] Given the tree works contemplated are for pruning and maintenance, they should be carried out by an arborist with minimum AQF Level 3 qualification. Costs [22] The Attwells seek orders for recovery of their costs in this application including filing fees, property search fees and the production of the expert evidence. As with all other aspects of the application, the Omans have not made submission about a costs order. Ordinarily in this jurisdiction, parties bear their own costs. However Ms and Mr Oman’s conduct has disadvantaged the Applicants, particularly their failure to participate meaningfully in the proceedings and non-compliance with directions. The Tribunal considers it in the interests of justice for costs to be awarded against the Omans for the filing fees and property search costs in full. [23] This matter was not conducted under Practice Direction No 7 of 2013 (Tribunal appointed tree assessor). Instead, given the Omans lack of participation, the only expert evidence was the short arborist report furnished by the Attwells at their expense. The report assisted the Tribunal to conclude that this was not a case for removal or destruction of the tree, a matter that might be considered favourable to the Omans. In my view, the Attwells should have the order they seek for the full cost of the report ($330) because of the Omans failure to participate in the proceedings, the importance and relevance of the report to resolution of the dispute, and the relatively low cost of the report, given the $1000 yardstick provided by the Practice Direction. [24] The costs will be awarded in fixed sums totalling $701.45 to be paid within 14 days of the date of this order. Other matters [25] Attention is also drawn to obligations arising from this application and order. [26] Under s 79 of the NDA, the order is kept in a searchable register of tree- related orders. [27] Under s 83, if Hayley Nyree Oman and Karl Henry Oman were to sell their property, they are required to give a copy of the order (unless it became -- 7 of 9 -- 8 obsolete in the meantime) to the buyer before the contract is signed. Failure to do so may result in a fine up to 500 penalty units.13 Orders 1. Hayley Nyree Oman and Karl Henry Oman must undertake the following tree works in relation to the Persea americana (‘the avocado tree’) situated on land at 32 Wareham St, Aitkenvale: a) The branches of the avocado tree overhanging the boundary between 32 and 34 Wareham St, Aitkenvale must be cut and removed; b) A crown clean of the canopy of the avocado tree is to be undertaken to reduce the canopy to a safe level; and c) Annual maintenance must be undertaken to ensure the continued safety of the tree and its canopy (together, ‘the tree works’); 2. Hayley Nyree Oman and Karl Henry Oman are equally responsible for the cost of the tree works. 3. The tree works must be completed by no later than sixty (60) days from the date of this order and annually within 60 days of the anniversary of this order. 4. The tree works must be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist. 5. Should Hayley Nyree Oman and Karl Henry Oman fail to comply with orders 1 and 3, Kenneth William Attwell and Shirley Attwell by their servants or agents are authorised to enter upon 32 Wareham St, Aitkenvale to cause the tree works to be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist; 6. Kenneth William Attwell and Shirley Attwell may recover from Hayley Nyree Oman and Karl Henry Oman the cost of the tree works. 7. On or before 4:00pm on 27 July 2017, Hayley Nyree Oman and Karl Henry Oman must pay Kenneth William Attwell and Shirley Attwell costs fixed at $701.45 as follows: a) Costs for this application fixed at $315.70; b) The costs of conducting property searches fixed at $55.75; 13 Currently equal to $63,075 for individuals. -- 8 of 9 -- 9 c) 100% of the costs of the arborist’s report fixed at $330. -- 9 of 9 --