Clough & Anor v Kempster [2014] QCAT 200

CITATION: Clough & Anor v Kempster [2014] QCAT 200 PARTIES: Dean James Clough Tania Clough (Applicant) v Elizabeth Eunice Kempster (Respondent) APPLICATION NUMBER: NDR229-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 28 April 2014 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 9 May 2014 DELIVERED AT: Brisbane ORDERS MADE: BY CONSENT, IT IS ORDERED: Inspection and Works 1. The registered owner of the lot at 59 Beauvardia Street, Cannon Hill (the tree- keeper) will arrange for a suitably qualified independent AQF Level 5 Arborist from an Arboricultural provider agreed from time to time with the registered owner of lot at 61 Beauvardia Street, Cannon Hill (the neighbour) to be contracted to undertake an initial inspection of the trees and to perform or supervise an AQF Level 3 Arborist to perform the initial works specified as follows:- a. In respect of the Lillypilly Tree (Tree 1) prune the upper crown of the Lillypilly tree and re-pollard the lower limbs 2-3 feet away from the boundary to create pollard points that will maintain a leafy aspect; b. In respect of the Ficus Tree (Tree 2); i. Remove one trunk as marked in red on Attachment A; ii. Prune the aerial roots in the space -- 1 of 9 -- 2 between the fence and the neighbour’s property; c. In respect of the Poinciana Tree (Tree 3), undertake works in accordance with the Tribunal’s orders; d. Conduct subsequent inspections and make recommendations for maintenance work required at the time of subsequent inspections and then perform or supervise an AQF Level 3 Arborist to perform those recommended maintenance works. 2. a. That the initial inspection and initial works specified in 1(a) to (c) above must be carried out as soon as possible and within 30 days provided that it is carried out before the tawny frogmouths nest in the Poinciana Tree. b. In the event that it cannot be carried out before the tawny frogmouths commence nesting in the Poinciana tree (Tree 3), then it must be completed by 30 December 2014. 3. That the subsequent inspections and maintenance works be carried out each second year from 2016 in the March to April period, provided that an earlier inspection must be arranged in the event of any significant weather or other event which results in any significant and sudden change to any of the three trees. 4. a. In the event that the tree-keeper and the neighbour are unable to reach agreement about the arboricultural provider/s to be engaged to undertake the inspections and works then the tree-keeper must obtain tenders from 2 providers, from which the neighbour may select the provider to be engaged. b. The AQF Level 5 Arborist must be experienced in VTA (Visual Tree Assessment), ULE (Useful Life Expectancy) and QTRA (Qualified Tree Risk Assessment) or TRAK or similar evaluation model for tree assessments. 5. a. Assessments and reports of the AQF Level 5 Arborist are to be supplied to both parties for review before the initial work and maintenance work is -- 2 of 9 -- 3 scheduled/undertaken. b. Both parties shall have equal access to the Arborist to seek clarification on any assessment/report before the work is scheduled/undertaken. 6. All required inspections and works shall be scheduled to suit both parties. 7. The tree-keeper and the neighbour must accept any assessment of the AQF Level 5 Arborist that the Useful Life Expectancy Assessment of a tree/s is such that it no longer warrants retention. 8. The AQF Level 5 Arborist engaged from time to time must be provided with a copy of these consent orders and any other current orders of the Tribunal. Costs of Inspections and Works 9. The cost of the initial inspection and initial works shall be shared between the tree-keeper and the neighbour as follows: a. 50% each up to an initial total cost of $2,000; or b. If the total costs for the inspection and works exceeds $2,000, then $1,000 by the neighbour and the balance by the tree-keeper. 10.The cost of subsequent inspections and maintenance works shall be shared between the tree-keeper and the neighbour as follows: a. 50% each up to a total cost of $1,000; or b. If the total costs for the inspection and works exceed $1,000, then $500 by the neighbour and the balance by the tree- keeper. IT IS THE DECISION OF THE TRIBUNAL THAT: 11.The Poinciana tree must be pruned as may be recommended by the AQF level 5 Arborist engaged so that the anticipated overhang at the time of the 2016 and subsequent second annual inspections is no more than 2 metres over the boundary line of the applicant neighbours, Mr and Mrs Clough. CATCHWORDS: TREE DISPUTE - where tree extends over the neighbours boundary into their 10 metre yard by -- 3 of 9 -- 4 6 metres - where tree is a wildlife habitat - where arborists recommend that the pruning point be left to the discretion of the an arborist employed to inspect and prune trees periodically - whether potential for serious injury to neighbour’s children - whether substantial, ongoing or unreasonable interference with neighbour’s use and enjoyment of their land Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 73 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Clough represented himself and Mrs Clough at the hearing. RESPONDENT: Ms Kempster represented herself at the hearing. REASONS FOR DECISION [1] Ms Kempster (the tree-keeper) has three trees on her property very close to her boundary with her neighbour’s (the neighbour), that is, Mr and Mrs Clough’s, boundary. The trees are concerned are a Lillypilly, a Ficus and a Poinciana. [2] Mr and Mrs Clough filed an application for a tree dispute regarding the three trees. [3] On 28 April 2014 during the hearing, the parties requested an opportunity to have some discussions with a view to reaching agreement around some matters. They reached agreement in respect of many issues and since the hearing have signed proposed consent orders and submitted them to the Tribunal. I make consent orders in those terms. [4] The consent orders are as follows: Inspection of Works 1. The registered owner of the lot at 59 Beauvardia Street, Cannon Hill (the tree-keeper) will arrange for a suitably qualified independent AQF Level 5 Arborist from an Arboricultural provider agreed from time to time with the registered owner of lot at 61 Beauvardia Street, Cannon Hill (the neighbour) to be contracted to undertake an initial inspection of the trees and to perform or supervise an AQF Level 3 Arborist to perform the initial works specified as follows:- (a) In respect of the Lillypilly Tree (Tree 1) prune the upper crown of the Lillypilly tree and re-pollard the lower limbs 2-3 feet away from the boundary to create pollard points that will maintain a leafy aspect; -- 4 of 9 -- 5 (b) In respect of the Ficus Tree (Tree 2); (i) Remove one trunk as marked in red on Attachment A; (ii) Prune the aerial roots in the space between the fence and the neighbour’s property; (c) In respect of the Poinciana Tree (Tree 3), undertake works in accordance with the Tribunal’s orders; (d) Conduct subsequent inspections and make recommendations for maintenance work required at the time of subsequent inspections and then perform or supervise an AQF Level 3 Arborist to perform those recommended maintenance works. 2. (a) That the initial inspection and initial works specified in 1(a) to (c) above must be carried out as soon as possible and within 30 days provided that it is carried out before the tawny frogmouths nest in the Poinciana Tree. (b) In the event that it cannot be carried out before the tawny frogmouths commence nesting in the Poinciana tree (Tree 3), then it must be completed by 30 December 2014. 3. That the subsequent inspections and maintenance works be carried out each second year from 2016 in the March to April period, provided that an earlier inspection must be arranged in the event of any significant weather or other event which results in any significant and sudden change to any of the three trees. 4. (a) In the event that the tree-keeper and the neighbour are unable to reach agreement about the arboricultural provider/s to be engaged to undertake the inspections and works then the tree- keeper must obtain tenders from 2 providers, from which the neighbour may select the provider to be engaged. (b) The AQF Level 5 Arborist must be experienced in VTA (Visual Tree Assessment), ULE (Useful Life Expectancy) and QTRA (Qualified Tree Risk Assessment) or TRAK or similar evaluation model for tree assessments. 5. (a) Assessments and reports of the AQF Level 5 Arborist are to be supplied to both parties for review before the initial work and maintenance work is scheduled/undertaken. (b) Both parties shall have equal access to the Arborist to seek clarification on any assessment/report before the work is scheduled/undertaken. 6. All required inspections and works shall be scheduled to suit both parties. 7. The tree-keeper and the neighbour must accept any assessment of the AQF Level 5 Arborist that the Useful Life Expectancy Assessment of a tree/s is such that it no longer warrants retention. 8. The AQF Level 5 Arborist engaged from time to time must be provided with a copy of these consent orders and any other current orders of the Tribunal. Costs of Inspections and Works -- 5 of 9 -- 6 9. The cost of the initial inspection and initial works shall be shared between the tree-keeper and the neighbour as follows: (a) 50% each up to an initial total cost of $2,000; or (b) If the total costs for the inspection and works exceeds $2,000, then $1,000 by the neighbour and the balance by the tree- keeper. 10. The cost of subsequent inspections and maintenance works shall be shared between the tree-keeper and the neighbour as follows: (a) 50% each up to a total cost of $1,000; or (b) If the total costs for the inspection and works exceed $1,000, then $500 by the neighbour and the balance by the tree-keeper. The Poinciana tree [5] Having regard to the consent orders, the only point for me to decide is whether, as the Cloughs submit, the Poinciana tree should be required to be kept trimmed so that it may not extend further than point five (that is, one half) of a metre over their boundary. Ms Kempster submits that orders should be made in terms of those proposed by the two arborists who reported to the Tribunal in their joint conclave report, that is, that a Level 5 arborist engaged to undertake inspections and works should determine where lopping of the branches of the Poinciana should occur. [6] In the tree assessor’s report he acknowledged that pollarding is not a management technique which is particularly suitable for Poinciana trees, and that poor pruning would further stress the tree, which is already dysfunctional. He comments that removal of all overhang would not be achieved in the next pruning. He continues that the main point of concern is the limb over the fence into the neighbour’s yard, noting that the previous point of pruning for it is over the boundary line. At the time of his report he recommended removal of the limb which is over the fence, trimming of other limbs and removing smaller branches. [7] The arborist engaged by Ms Kempster noted his comments and expressed his deep concern for the for the wellbeing of the Poinciana if the large overhanging limb is removed, suggesting that in his opinion it would impact adversely on the tree’s aesthetics, as well as the ULE or longevity of the tree and contravene pruning standards. He told the Tribunal that he could not recommend where the Poinciana was best cut, and that it should be left to an arborist to choose that point, remove the rest and compartmentalise the wound. [8] The evidence from the tree assessor and an arborist engaged by Ms Kempster who reached some agreement at the expert conclave was to the following effect. They both consider that the AQF Level 5 Arborist retained should inspect the lopping point which they identify in photographs which have been placed before the Tribunal and prescribe any necessary works to maintain the lopping point as a future pollard point or recommend other alternative works that should be done as necessary upon further investigation. Neither of them climbed the tree and as I -- 6 of 9 -- 7 understand it, it is on this basis that they consider it is appropriate for whoever is actually engaged to undertake the works to more closely inspect and then make recommendations. [9] Further they said that if the lopping point as identified in the photographs already mentioned is worthy of retention as a pollard point then the crown overhang to the neighbour’s property should be reduced. If the recommendations jointly made by the arborists are accepted by the Tribunal then the extent of the overhang allowed into the neighbour’s yard will be entirely within the arborist’s discretion. Mr Clough submits this lack of certainty is undesirable. The Neighbour’s issues [10] The Cloughs property is only 10 metres wide. Some of the branches of the Poinciana extend up to six metres into their property. [11] The tree overhangs the pool area of his yard. He says that it restricts sunlight to his property. In the pool area, he also says that there are safety concerns. He is concerned about the dropping of a large number of large seed pods from the tree (he counted 50 on branches of the tree overhanging his yard on one occasion), some of which are up to two feet in length and which have the potential to drop from some eight metres in height. He also said that smaller branches drop from the Poinciana from time to time. He referred also to another tree on Ms Kempster’s property which fell during a weather event damaging her boundary fence with another neighbour. He also raised an issue around debris generally falling into his yard. Mr and Mrs Clough further say that there has been significant damage to their pool equipment and pool area. [12] The tree assessor confirmed his view that injury could be caused to a child hit on the head with a seed pod falling from a Poinciana. [13] Mr Clough submits in essence that there is substantial, ongoing and unreasonable interference with the neighbour’s enjoyment and use of their land, as well as safety issues for his children when in the backyard. [14] Ms Kempster clarified that the tree bordering another neighbour’s property which fell over was not a Poinciana. She is concerned that the Poinciana tree be maintained as a habitat for local tawny frogmouths which nest in it annually. What orders are appropriate? [15] Under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), QCAT may make orders it considers appropriate in relation to a tree affecting a neighbours land, amongst other things to remedy, restrain or prevent substantial, ongoing or unreasonable interference with the use and enjoyment of the neighbours land or to prevent serious injury to any person. -- 7 of 9 -- 8 [16] The primary consideration is the safety of any person.1 Interference that is an obstruction of sunlight only applies if the obstruction is a severe obstruction of sunlight to a window or roof or a severe obstruction of a view.2 Removal or destruction of a living tree is to be avoided, unless the issue relating to the tree can not be satisfactorily resolved otherwise.3 [17] Section 73 of the Neighbourhood Disputes (Dividing Fences and Trees) Act sets out general matters that QCAT must consider. I have considered all of those matters. Some are not relevant in these circumstances. The relevant matters set out in s 73 in this instance are set out in summary as follows. The matters provided for include the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree; the contribution of the tree to the local ecosystem and the natural landscape and scenic value of the locality; any contribution of the tree to public amenity and amenity of the tree-keeper’s land; the likely impact on the tree of pruning it; and the type of tree. [18] The photographs, which form part of the material before the Tribunal, reveal that the Poinciana tree is located very close to the boundary of Ms Kempster’s property with the Cloughs. It is not a pest or a weed, but drops large seed pods. It is a soft tree in nature and does not respond well to pollarding. I accept that, as the Cloughs evidence indicates, their pool, their pool equipment and surrounding areas are affected by the debris from the tree. [19] The tree overhang is up to 6 m into the Cloughs modestly sized 10m wide block. Their pool area is affected. Sunlight to a pool can not legitimately be considered under the Act, as sunlight to a window or roof is not raised. Debris is of concern to them. Although the tree assessor points out that Poinciana leaf litter is small, however, the tree also drops large seed pods. [20] The Cloughs have young children. The Cloughs are concerned that their children can not safely play in the yard. They are concerned about them playing in the backyard. As was acknowledged by the tree assessor, there is the potential for serious injury to a child if hit on the head by one of the many falling seed pods from the tree. I accept that there is a potential serious safety issue which arises from the dropping by the tree of large seed pods from a height of up to 8 metres. [21] The tree is part of the natural landscape of the locality forming part of a green leafy ambience and privacy, which contributes to the amenity of the tree-keeper and the public. The tree also makes an important contribution to the local ecosystem as a nesting place for tawny frogmouths. [22] There are legitimate concerns for the well-being of the tree from pruning. 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 71. 2 Ibid s 66(3)(b). 3 Ibid s 72. -- 8 of 9 -- 9 [23] However, safety of persons is a primary consideration. I find that the tree presents a potential risk to the safety of the Cloughs’ children, through the dropping of many seed pods which could cause a child who is in the path of the seed pod significant injury. Further, I find that the overhang of 6 metres into a 10 metre lot in the circumstances of this matter constitutes a substantial ongoing and unreasonable interference with the Cloughs use and enjoyment of their land, specifically their backyard and pool area. I find that the Cloughs backyard and pool area is affected to a point that they have no real control over their own backyard and the current level of intrusion of the tree presents a real impediment to their enjoyment of it. [24] I am satisfied that it is appropriate to make orders which will limit the overhang of the tree into the Cloughs yard. Although I do not wish to compromise the integrity of the tree or disturb the tawny frogmouth habitat, I do not consider it reasonable to leave that matter entirely within the discretion of the particular arborist engaged. I am confident that an AQF Level 5 arborist will be able to find an appropriate manner in which to prune the tree, having regard the requirements that I intend to impose. In this regard, I am mindful of the tree assessor’s report which initially recommended removal of two braches extending over the boundary line and pollarding at those points. [25] The Cloughs say that the tree should extend no more than one half of a metre over the fence line. That is a very small amount and would require considerable pruning. Having regard to the tree-assessor’s report, it could not be done in one pruning cycle, without compromising the tree. In my view, it would be reasonable, in order to deal with the safety issues and the ongoing substantial and unreasonable interference to the Clough’s lot, if the tree extended no more than 2 metres over the boundary line at any time. This provides reasonable scope within which the arborist can work, while imposing a limit which gives the Cloughs the ability to enjoy their backyard. [26] I make orders accordingly requiring the arborist engaged to achieve this aim, while maintaining the tree, such that the 2 metre overhang will be the anticipated overhang at the time when subsequent inspections and maintenance works are due to occur each second year, in accordance with the consent orders made. The crown of the tree will need to be reduced accordingly as part of the initial works. Subsequent inspections and maintenance works can then occur according to the schedule already agreed between the parties and embodied in the consent orders. [27] I make orders to this effect. -- 9 of 9 --