Bailey v Sullivan [2016] QCAT 226

CITATION: Bailey v Sullivan [2016] QCAT 226 PARTIES: Albert Frederick Bailey (Applicant) v Kerry Sullivan Kathleen Mary Sullivan (Respondent) APPLICATION NUMBER: NDR081-15 MATTER TYPE: Other civil dispute matters HEARING DATE: 7 June 2016 HEARD AT: Brisbane DECISION OF: Member Hanly DELIVERED ON: 5 July 2016 DELIVERED AT: Brisbane ORDERS MADE: [1] The brick fence pier on Mr Bailey’s property which has been damaged, and its corresponding brick fence pier opposite, must be removed and re-sited further down Mr Bailey’s driveway at a position identified by Mr Bailey. [2] The section of the dividing brick fence which has been damaged must be demolished, and replaced with colourbond fencing to match existing colourbond fencing at the front of the driveway. [3] The damaged section of dividing timber fencing must be repaired. [4] Tree #1 must have ongoing maintenance performed as necessary, but not less than every 3-4 years, to remove deadwood and carry out corrective pruning. [5] Tree #2 must also have such ongoing maintenance carried out as is necessary from time to time. -- 1 of 7 -- 2 [6] All tree works should be performed by a qualified Arborist in accordance with AS4373-2007 pruning of amenity trees.1 [7] The cost of the remedial works to the brick fence piers, dividing brick fence and dividing timber fence must be borne solely by Dr and Mrs Sullivan. The contractor engaged by them must be suitably qualified and licenced. [8] The cost of the ongoing maintenance of Tree #1 and Tree #2 must be borne solely by Dr and Mrs Sullivan. [9] The contractor must carry out the works only during normal business hours on Monday to Friday inclusive. [10] Mr Bailey must be given at least 48 hours’ notice prior to the intended commencement of works. [11] Mr Bailey must permit access to his property by the proposed contractor, for the purposes of measuring and determining the scope of works, and for performing the works. [12] Mr Bailey must also permit access to his property by any contractor engaged by Dr and Mrs Sullivan from time to time for the trimming of any branches from Tree #1 over-hanging Mr Bailey’s driveway. CATCHWORDS: NEIGHBOURHOOD DISPUTES – where claim for removal of trees, and repair of property damaged by trees – whether trees provide benefit to the tree-keepers’ property – where trees were established before neighbour bought his property – whether substantial, ongoing and unreasonable interference with neighbour’s property – whether serious damage caused. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46,48,49,66,72,73 APPEARANCES: APPLICANT: Albert Frederick Bailey 1 Report dated 18 October 2015 Part 2.4.1 page 14 of 17. -- 2 of 7 -- 3 RESPONDENT: Kerry Sullivan Kathleen Mary Sullivan REASONS FOR DECISION [13] Mr Bailey, and Dr and Mrs Sullivan, have adjoining properties in Mermaid Waters. They are, respectively, the registered owners of the properties. [14] Mr Bailey alleges that trees on Dr and Mrs Sullivan’s property have caused damage to his property, and that there is the potential for serious injury to ensue if a damaged pillar on his property collapses. This pillar (one of two either side of his driveway) supports half of a heavy metal gate, by which his property is secured. [15] Mr Bailey has made an application to the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)2. Dr and Mrs Sullivan are tree-keepers3 and Mr Bailey is a neighbour4, as he is the owner of the land adjoining the Sullivan’s property, which land is affected by the Sullivan’s trees.5 [16] On 17 September 2015 the Tribunal appointed an appropriately qualified arborist (Mr Anthony Cockram) to carry out an inspection of the trees and to provide a report to the Tribunal addressing the issues raised in the application.6 [17] Mr Cockram’s report, dated 18 October 2015, was prepared following his inspection of the trees on 17 October 2015. He also spoke with Mr Bailey, and Dr and Mrs Sullivan. [18] Mr Cockram noted that the application referred to only one tree, but that by the time of his inspection, Mr Bailey had identified a second tree, which he alleged was causing substantial, ongoing and unreasonable interference with the use and enjoyment of his land and serious damage to the dividing fence. [19] The Tribunal acknowledges that Mr Bailey only identified one tree in his application, however, the second tree was identified at an early stage in the proceedings, and Dr and Mrs Sullivan have had ample opportunity to respond to the allegations in relation to the second tree, both in their written material and at the hearing. Accordingly, the Tribunal has made its determination in respect of both trees. 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 62. 3 Ibid s 48. 4 Ibid s 49. 5 Ibid s 46. 6 QCAT Practice Direction 7/2013. -- 3 of 7 -- 4 [20] Mr Cockram identified the two trees as a Caesalpinia ferrea – Leopard Tree (Tree #1) and a Schinus terebinthifolius – Broadleaved Pepper Tree (Tree #2). [21] Both trees were wholly on Dr and Mrs Sullivan’s land, and were reportedly both well-established before Mr Bailey purchased his property in 2009. [22] Mr Cockram addressed several issues in his report, including a visual assessment of the trees; the benefits of the trees to Dr and Mrs Sullivan; and the detriment (actual and potential) of the trees to Mr Bailey’s property.7 [23] Mr Cockram also determined the extent of the alleged root damage to the boundary fence. He also determined whether the trees were already established before Mr Bailey’s acquisition of his property, and what landscape amenity, privacy and shade values the trees provided to Dr and Mrs Sullivan’s property.8 [24] Mr Cockram established that Tree #1 is an exotic species, which was in excellent health and form at the time of inspection. He noted evidence of previous lopping of overhanging branches over both Dr and Mrs Sullivan’s dwelling and Mr Bailey’s driveway.9 [25] At the hearing, Dr Sullivan confirmed that he has an ongoing maintenance programme for all of his trees, and that he has devised a method to trim overhanging branches on Tree #1 over Mr Bailey’s property from his own property. He has done this because Mr Bailey has prohibited him from entering Mr Bailey’s property, even for the purposes of trimming branches of Tree #1. [26] Mr Cockram stated that Tree #1 was reportedly well established when Dr and Mrs Sullivan purchased their property in 1989, and as the main specimen tree in their garden, it contributes to the landscape amenity, shade and privacy for the Sullivan’s property and dwelling.10 [27] In relation to Tree #2, Mr Cockram stated that it is a well-established and mature sized tree, which is a class 3 declared pest plant. However, he also noted that it contributes to the landscape amenity and privacy screening for the Sullivan’s dwelling and property.11 [28] Mr Cockram found evidence that Tree #1 and Tree #2 have caused damage to Mr Bailey’s land and property. The damage was to the brick fence pier supporting half of the gate, the brick section of the boundary fence, and the timber section of the boundary fence. Mr Cockram further found that the trees were the sole contributors to the identified damage. [29] In evidence given at the hearing, Mr Cockram could not say if the roots of Tree #2 are affecting Mr Bailey’s driveway or heading towards the tennis court, but he did not find any evidence of damage to the driveway. Mr Cockram explained that if the tree is kept trimmed he does not expect that it will do any damage to the driveway. He said that it is already asymmetric, 7 Report dated 18 October 2015 – part 1.5 page 2 of 17. 8 Ibid part 1.5 page 3 of 17. 9 Ibid part 2.1.1 page 12 of 17. 10 Ibid. 11 Ibid. -- 4 of 7 -- 5 which suggests that it has good anchoring roots away from Mr Bailey’s property. [30] Mr Cockram also stated that the installation of a root barrier is not possible, because Tree #1 is too close to the fence. He said that ideally Tree #1 should have been planted 6 metres from a structure. [31] Mr Bailey confirmed that the brick fence pier, part of the brick fence and the timber fence have been damaged by the Sullivan’s trees. Mr Bailey also stated that the intercom in the brick fence pier is no longer working, but conceded that he did not know when it stopped working. He said it was working when he bought the property. [32] Mr Bailey did not agree with Mr Cockram’s recommendations in relation to the trees, saying that in his view they should both be removed. [33] Mr Bailey acknowledged that the trees were established when he bought his property. [34] Mrs Bailey stated that her concern in relation to the brick fence pier is that it poses a safety risk to her grandchildren. She said that she no longer lives in the property, but she visits it. She considers that the brick fence pier and the fence need to be repaired or replaced. In relation to the intercom, she stated that she did not think it ever worked. [35] Dr Sullivan conceded that the trees are causing a problem, and that he and his wife are willing to pay for necessary repairs to be effected. He said that he had made such an offer to Mr Bailey previously, but that offer was rejected. [36] Dr Sullivan reiterated that both trees provide shade and privacy, and that they contribute to the landscape amenity of their property. [37] Where trees are affecting a neighbour’s property, the Tribunal may make the orders it considers appropriate to prevent serious injury to any person, or to remedy, restrain or prevent serious damage to the neighbour’s land or property or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.12 [38] The Tribunal accepts the evidence of Mr Cockram. [39] The Tribunal is satisfied that Tree #1 and Tree #2 have caused serious damage to the brick fence pier, the brick fence and the timber fence. The brick fence pier is leaning precariously, and without remedial work being undertaken is in danger of collapsing with the weight of the gate. The brick fence has an obvious crack from top to bottom in one section where it has been lifted/cracked by the presence of Tree #1. Without remedial work being undertaken it is also at risk. The timber fence has been lifted/pushed into Mr Bailey’s property by Tree #2, and requires repair at that point. [40] The Tribunal is further satisfied that no damage has been identified on Mr Bailey’s driveway. 12 Act, s 62(2). -- 5 of 7 -- 6 [41] The Tribunal is satisfied that Tree #1 and Tree #2 do provide shade and privacy to Dr and Mrs Sullivan’s property, and that they contribute to the amenity of Dr and Mrs Sullivan’s land including a protection to other elements of their garden from the sun.13 It is for this reason that the Tribunal does not propose to order the removal of these trees, based on the current evidence. [42] The Tribunal is satisfied that the damage caused to Mr Bailey’s property can be remedied by the rectification, repair and re-siting of those parts of the dividing brick and timber fences, and brick fence pier that have been damaged. [43] The Tribunal does not intend to order repair of the intercom, as it is satisfied that the trees are not responsible for the intercom not working. [44] The Tribunal is also satisfied that Tree #1, where its branches overhang Mr Bailey’s driveway, must be kept trimmed to provide clear passage of a height of 3.5metres so as to ensure that they do not impede vehicular traffic on Mr Bailey’s driveway. [45] The brick fence pier which has been damaged, and its corresponding brick fence pier opposite, must be removed and re-sited further down towards Mr Bailey’s property, to ensure that the roots of Tree #1 will not further interfere with, and cause damage to, the brick fence pier. [46] The new location for the brick fence piers must be identified by Mr Bailey, and conveyed by him to the contractor engaged by Dr and Mrs Sullivan, once Mr Bailey is made aware of the identity of the contractor. [47] The new location for the brick fence piers must be within a reasonable distance from the existing location, and so as to be able to use the existing gates. [48] The section of the brick fence which has been damaged, as identified in Mr Cockram’s report, must be demolished, and replaced with colourbond fencing to match the existing colourbond fencing at the start of the driveway. This will enable the new colourbond panels to sit above the ground, and not be affected by the roots of Tree #1. [49] The damaged section of timber fencing must also be repaired. [50] Tree #1 must have ongoing maintenance performed as necessary, but not less than every 3-4 years, to remove deadwood and carry out corrective pruning. [51] Tree #2 must also have such ongoing maintenance carried out as is necessary from time to time. [52] All tree works should be performed by a qualified Arborist in accordance with AS4373-2007 pruning of amenity trees.14 [53] The Tribunal is satisfied that Tree #1 and Tree #2 can be safely pruned without affecting their structural integrity. 13 Act, s 73. 14 Report dated 18 October 2015 Part 2.4.1 page 14 of 17. -- 6 of 7 -- 7 [54] The cost of the remedial works must be borne solely by Dr and Mrs Sullivan. The contractor engaged by them must be suitably qualified and licenced. [55] The cost of the ongoing maintenance of Tree #1 and Tree #2 must be borne solely by Dr and Mrs Sullivan. [56] The contractor must carry out the works only during normal business hours on Monday to Friday inclusive. Mr Bailey must be given at least 48 hours’ notice prior to the intended commencement of works. [57] Mr Bailey must permit access to his property by the proposed contractor, for the purposes of measuring and determining the scope of works, and for performing the works. [58] Mr Bailey must also permit access to his property by any contractor engaged by Dr and Mrs Sullivan from time to time for the trimming of any branches from Tree #1 over-hanging Mr Bailey’s driveway. -- 7 of 7 --