Armstrong v Kettle [2016] QCAT 307

CITATION: Armstrong v Kettle [2016] QCAT 307 PARTIES: Andrew Shaw Armstrong (Applicant) v Sharyn Kettle (Respondent) APPLICATION NUMBER: NDR048-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 31 August 2016 DELIVERED AT: Brisbane ORDERS MADE: Order as follows: (a) Within sixty (60) days the Respondent will arrange for the removal of the five dead trees by a licensed tree removalist, at the Respondent’s expense; (b) Within sixty (60) days the Respondent will have the Tallowwood tree (as identified by the Applicant) assessed by a qualified arborist who is to develop a management plan for that tree designed to minimise the impact of that tree on the Applicant’s use and enjoyment of his own land. The Tallowwood tree is then to be pruned, and thereafter maintained, in accordance with the recommendations of the Arborist at the Respondent’s sole expense. CATCHWORDS: Neighbourhood dispute - trees APPEARANCES and REPRESENTATION (If any): -- 1 of 4 -- 2 Applicant: In person Respondents: No appearance by or for the Respondent Reasons for Decision [2] On 15 March 2016 Mr Andrew Shaw Armstrong commenced an Application for a tree dispute against his neighbour, Mrs Sharyn Kettle, seeking the removal of 5 dead pine trees and the pruning of a large Tallowwood tree. Mr Armstrong says that the pine trees are at substantial risk of falling on his property and that the Tallowwood tree, which overhangs the boundary, sheds leaf and twig litter to the extent that it is a substantial and unreasonable interference with he and his wife’s use and enjoyment of their house and land. [3] This matter was listed for a compulsory conference before me at 9.30am on 2 August 2016. Mr Armstrong attended the compulsory conference. Mrs Kettle did not attend the compulsory conference, despite having been sent proper notice, and having been previously warned, in Directions given by Senior Member Brown on 11 July 2016, that should she fail to attend the compulsory conference, a decision may be made at the Compulsory Conference that could be adverse to her. [4] It is to be observed that Mrs Kettle has not filed any materials in the Tribunal, and nor has Mrs Kettle engaged in the Tribunal process, to any extent. [5] It is further salient to observe that the QCAT Notice of Compulsory Conference for the compulsory conference scheduled for 2 August 2016 contained the following warning, highlighted in bold type: “If a party does not attend at the compulsory conference, the conference may proceed in their absence. The person who is presiding over the conference may make a decision against the interests of the party who does not attend, including: a. a decision which finally decides all matters the subject of the proceeding; b. a decision that the absent party be removed from the proceeding; or c. a decision that the absent party pay costs.” [6] The Tribunal now proceeds to finally determine Application NDR048-16. [7] The materials filed by the Applicant and the submissions made by him in person on 2 August 2016 reveal that Mr Armstrong is a retired gentleman, -- 2 of 4 -- 3 who now resides with his wife (who is in poor health), at 5 Possum Court, at Capalaba. Across their rear boundary Mrs Kettle resides at 46 Howletts Road Capalaba, which is an approximately 3.8 hectare battleaxe-shaped block that contains a very substantial number of pine trees. [8] The Applicant complains, in particular, about 5 of the pine trees that are adjacent to his house that are dead, and that shed quantities of branches onto his roof and land. Mr Armstrong informs the Tribunal that both he and his wife are fearful that these trees may catastrophically fall during a storm. Indeed, such is the extent of that fear that Mr and Mrs Armstrong do not occupy those parts of their house nearest to the dead trees during storm events. In addition, their use and enjoyment of their own yard and balcony has been drastically curtailed because of their fearfulness. [9] The Applicant has produced photographs that show the trees in question. These reveal the five trees to be very obviously dead; sufficiently close to the boundary so as to become a negative influence of the use and enjoyment of the Applicant’s property; and there is clear evidence of substantial termite infestation in at least one of these 5 dead trees. [10] The Applicant also complains about a very substantial Tallowwood tree that has branches that grow over his boundary. Mr Armstrong says that this Tallowwood tree constantly drops leaves and branches. These block his gutters, stain his roof, and cause constant extra yard work. Mr Armstrong is not a young man, and submits that he has now attained an age wherein it is no longer desirable for him to be constantly up and down ladders. I accept that entirely. In my view, these matters amount to a “substantial on-going and unreasonable interference” with Mr and Mrs Armstrong’s use and enjoyment of their own home and garden. [11] Mr Armstrong however accepts that the Tallowwood tree is a fine specimen and that it is a ‘habitat tree worthy of retention’. He asks no more than for it to be pruned, and properly managed. [12] I note that the tree management provisions within the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) do apply to the Respondent, because her land is less than 4 hectares: s.42(3)(b). As such, the Respondent now has all the responsibilities under s.52 of the Act that are reposed in a ‘tree keeper’, notwithstanding some suggestions that she may have a contrary view. [13] I am satisfied that sufficient grounds are made out for orders to be made in favour of the Applicant. Accordingly, the Tribunal orders as follows: (a) Within sixty (60) days the Respondent will arrange for the removal of the five dead trees by a licensed tree removalist, at the Respondent’s expense; (b) Within sixty (60) days the Respondent will have the Tallowwood tree (as identified by the Applicant) assessed by a qualified arborist who is to develop a management plan for that tree designed to minimise -- 3 of 4 -- 4 the impact of that tree on the Applicant’s use and enjoyment of his own land. The Tallowwood tree is then to be pruned, and thereafter maintained, in accordance with the recommendations of the Arborist at the Respondent’s sole expense. -- 4 of 4 --