Cryer v Jennings and Newman [2014] QCAT 593

CITATION: Cryer v Jennings and Newman [2014] QCAT 593 PARTIES: William Cryer (Applicant) v Anthony Jennings and Kay Newman (Respondents) APPLICATION NUMBER: NDR075-14 MATTER TYPE: Other civil dispute matters HEARING DATE: 23 October 2014 HEARD AT: Brisbane DECISION OF: Professor A Ashman, Member DELIVERED ON: 23 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The tree keepers are to engage an appropriately qualified contractor of their choice to repair or replace the retaining wall being the subject of this application that is adjacent to the boundary fence between their and William Cryer’s property. 2. The work to be undertaken in [1] is to be at the tree keepers’ expense directly or if the repairs to, or replacement of, the wall is to be the subject of an insurance claim, the choice of contractor and cost of work is to be at the discretion of the insurer. 3. The work to be undertaken in [1] is to be completed within four (4) months. CATCHWORDS : NEIGHBOUR DISPUTE — COMPENSATION FOR DAMAGE BY TREES — where the neighbour seeks compensation for property damage where tree roots have affected the integrity of a retaining wall – where the tree keepers accept responsibility for the damage – where no further damage is anticipated due to the removal of the trees -- 1 of 3 -- 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, ss 66(5), 71, 72 APPEARANCES The application was heard on the papers pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] The applicant and the respondents own adjoining properties in the beach suburb of Palm Cove near Cairns. [2] On the basis of the evidence before the Tribunal, Mr Cryer corresponded with the tree keepers — ACT residents Mr Jennings and Ms Newman — approximately 18 months ago to inform them that roots from three palm trees growing adjacent to a boundary fence were causing damage to a low retaining wall some short distance inside Mr Cryer’s property. [3] According to Mr Jennings and Ms Newman, they contacted their property agent and the palms were removed expeditiously to almost ground level. They initiated an insurance claim but no action appears to have been taken by the insurer to have the damage assessed, and repaired. [4] The existing retaining wall is approximately 800 mm high and is comprised of concrete blocks that have not been core-filled. [5] The primary concern of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 in regard to trees is the safety of any person1. 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 resolved2. The present matter does not involve such determinations as the trees are no longer living. [6] Section 66(5) of the Act, however, contains additional considerations including the payment of compensation to a neighbour for damage caused by the tree-keeper’s trees. [7] On 14 July 2014, the Tribunal issued directions that an appropriately qualified arborist carry out an inspection and provide a report to the Tribunal on the issues raised in Mr Cryer’s application. Mr Pieter (Willem) Taylor conducted an inspection on 26 July 2014. [8] Mr Taylor provided a number of photographs identifying the site of the palms that grew close to the boundary fence and of damage to Mr Cryer’s retaining wall. He confirmed that the palm roots were the source of the damage. 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 71. 2 Ibid s 72. -- 2 of 3 -- 3 [9] Mr Taylor noted that some minor deflection has been caused to the retaining wall away from the boundary fence and roots have invaded the open spaces within the concrete blocks. [10] Mr Cryer and Mr Jennings and Ms Newman have submitted a number of quotes for the removal and replacement of the retaining wall. The quotes range from slightly over $24,000 to slightly less than $3,900, purportedly for the same scope of work. [11] As Mr Jennings and Ms Newman have already initiated an insurance claim and have attempted to expedite progress, and as it is unlikely that any further damage will be caused by the palm roots, the only matter requiring the Tribunal’s consideration is the determination of which work estimate reflects a reasonable cost to restore the retaining wall to its original condition, or to replace the wall with a similar structure. [12] On the basis of information contained in the tree keepers’ response to the application, it appears that they accept responsibility for the damage to the retaining wall. Their primary concern (and that of Mr Cryer) is returning Mr Cryer’s property to its original state. The tree keepers are also concerned that work is undertaken at a reasonable cost. [13] Therefore, the Tribunal finds that the tree keepers are responsible for the damage to Mr Cryer’s retaining wall. It orders the tree keepers to engage an appropriately qualified contractor of their choice to repair or replace the damaged retaining wall at their own expense. If they pursue the insurance claim, then the choice of contractor and cost of work is to be at the discretion of the insurer. The work is to be completed within four months. -- 3 of 3 --