Barriball v Peterson [2014] QCATA 30

CITATION: Barriball v Peterson [2014] QCATA 030 PARTIES: Mr John Barriball (Applicant/Appellant) v Mr James Peterson and Mr William Peterson (Respondent) APPLICATION NUMBER: APL264-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Allen DELIVERED ON: 3 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREE DISPUTE – where tree assessor recommended removal of trees – tribunal ordered removal of one limb that was likely to cause damage – applicant appealed on ground that that there was sufficient evidence to show severe obstruction of sunlight and interference by trees – Appeal Tribunal did not find any error in Tribunal’s finding of facts in regard to tree affects Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 APPEARANCES and REPRESENTATION (if any): 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 of 7 -- 2 Senior Member O’Callaghan [1] In this matter, I have had the benefit of reading Member Allen’s reasons in draft. I agree with his reasons, and conclusions, and the order he proposes. Member Allen [2] Mr Barriball, as the neighbour1, made an application to the Tribunal under s 63 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in regard to trees located on the land of Mr Peterson and Mr Peterson, as the tree-keepers2, which he alleged were affecting his land3. The application was determined on the papers and the learned member ordered that some work occur to one of the trees. Mr Barriball has made application for leave to appeal and appeal that decision. [3] The Tribunal has jurisdiction to make an order in regard to a tree affecting a neighbours land to prevent serious injury to any person; or to remedy restrain, or prevent serious damage to the neighbours land or any property on the neighbours land; or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land4. [4] Mr Barriball alleged in his application that the trees, in particular tree roots from fig trees, had blocked the drainage system for unit 1 in the past and repair work had been done 5 years ago. He also alleged that the trees were causing interference to television reception, soiling of clothes on the clothes line and restriction of sunlight to the garden and lawn area which was increasing. He stated that until the introduction of this legislation he had employed labour to carry out the lopping on a number of occasions during the 18 years he had lived here and that at the time he arrived the trees were no taller than the dividing fence. [5] There was a request by Mr Barriball for an order for the removal of the figs due to the damage already caused by their invasive roots. All other trees which were allowed to remain on the property were requested to be pruned back to the dividing fence line and lopped to a height no greater than the roof top of the tree owner’s dwelling. He stated that at the moment the trees encroach some 6 metres over the dividing fence and are now only 6 metres from his building. [6] The Tribunal appointed Mr Benjamin Inman, an arborist, to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application. Mr Inman inspected the tree keepers land on 16 December 2012 and provided a report to the Tribunal dated 16 December 2012. Mr Inman notes the issues raised by Mr Barriball and states that Mr Barriball was not at home at the time of the inspection and that he was not able to access the rear of Mr Barriball’s property due to 1 Neighbourhood Disputes (Dividing Fences and Tress) Act 2011 (Qld) s 49. 2 Ibid s 48. 3 Ibid s 46. 4 Ibid s 66(2). -- 2 of 7 -- 3 the side gate being locked. As a result Mr Inman was only able to assess the trees from the tree keeper’s property and was not able to assess the damage being caused by the tree keeper’s trees to Mr Barriball’s property. [7] Mr Inman in his observations of the trees on the tree keeper’s property identified five trees as follows: Tree 1 – Ficus benjamina (Weeping Fig); Tree 2 – Clump of Dypsis lutescens (Golden Cane Palm); Tree 3 Mature Corymbia citridora (Lemon-scented Gum); Tree 4 Mature Corymbia intermedia (Pink Bloodwood); Tree 5 Mature Ficus benjamina (Weeping fig). Mr Inman stated that all of the trees were healthy with good structure. He noted that the lowest lateral limb of tree 4 growing towards the east was dead and mostly overhangs Mr Barriball’s land and requires removal of this branch to improve the likelihood of this branch failing and causing damage to the dividing fence line. Tree 5 was identified by Mr Inman as having been lopped at 4 metres and the branch attachments at the this lopped region of the tree were said generally to be poorly attached and will require regular maintenance to reduce the likelihood of failure from poorly attached branches [8] Mr Inman stated in regard to whether or not the trees were affecting Mr Barriball’s land that: The canopy of these multiple trees does extend over the applicant’s property and does cause some shading to occur directly underneath the canopy of these trees, which the applicant does have a garden along the rear fence line; the vegetation that I was able to see does appear to be healthy. Tree 4 does have a large dead branch that overhangs the applicant’s land and is the only part of this group of trees that has a higher likelihood of failure and would cause damage to the fence if branch failure occurred; this dead branch may or may not fall within the next 12 months. [9] Mr Inman recommended that the trees be allowed to be removed and replaced with a more suitable smaller tree species. This was on the basis that he was unable to assess Mr Barriball’s alleged issues and the request made by him appeared to be too onerous to the tree keeper to maintain these trees back to the fence line and the tree keepers were already considering removal of the trees. If the trees were to be retained he recommended lifting of the lower canopy to the height of 4 metres along the boundary fence and removal of the dead branch from tree 4 to be completed. [10] The material on the file at the time of the original decision was the application and the report of Mr Inman. Mr Peterson and Mr Peterson had not filed a response to the application. They were directed on 19 March 2013 to file any application to the Sunshine Coast Regional Council and any reply. Consent of the Council would have been required to remove the Corymbia tree species which are protected. This did occur and the application was listed for a decision on the papers at the next directions hearing on 24 April 2013. -- 3 of 7 -- 4 [11] The learned member in his reasons for decision set out the history of the application noting that correspondence had been sent to Mr and Mr Peterson in June 2012 by Mr Barriball asking them to trim the trees and arrange to have lopping and trimming on an annual basis. He then outlined the statutory basis for the Tribunal to consider applications in regard to trees and the grounds upon which the Tribunal may make an order in respect of a tree. [12] He then discussed Mr Inman’s report noting that Mr Inman agreed with Mr Barriball that the canopies of the trees cross into Mr Barriball’s property to a significant extent. That as Mr Inman was unable to enter Mr Barriball’s property his inspection was limited to observations made from the Peterson’s property. That Mr Inman was, therefore, unable to confirm any damage that might have been caused, or might in the future cause, damage to infrastructure of the Barriball property. [13] The learned member found it significant that Mr Inman stated that all trees appear structurally sound and that, Mr Inman, indicated concern for one branch of C. intermedia (tree 4) that was dead and might fall causing damage to the dividing fence. [14] The learned member stated that there was no evidence before him that the trees located on the Peterson’s property constituted a risk of serious injury to any person or of serious damage to the neighbours land or property; that Mr Inman wrote that the there is some risk of damage to a dividing fence from a falling branch from one tree but this is unlikely to constitute serious damage; that there is no independent evidence before the Tribunal that the damage to Mr Barriball’s drainage was serious damage to property, and similarly there is no evidence that there is substantial, ongoing and unreasonable interference with Mr Barriball’s use and enjoyment of his land as a consequence of obstruction of sunlight or a view. He noted all trees affect the passage of sunlight to a greater or lesser extent and Mr Barriball has produced no evidence that the existing trees constitute serious obstruction. [15] The learned member also noted the Peterson’s advice to Mr Inman that they were considering the removal of the Ficus species but had not yet sought council approval and the potential increase in tree vulnerability if tree 1 was removed. He further noted Mr Inman’s opinion that Mr Barriball’s request appears to be a too onerous expectation to place on the tree-keeper. [16] An order was made by the learned member for the removal of the dead branch on tree 4 on the basis that was the only potential danger to which Mr Inman alerted and that there was no compelling evidence to substantiate an order removing or lopping trees on the basis of a risk of serious injury to any person, serious damage to land or property, or serious obstruction to sunlight or view. [17] In his application for leave to appeal and appeal Mr Barriball states his ground as:- -- 4 of 7 -- 5 a) Para 12 of the Tribunal’s reasons for decision stated “no evidence that there is substantial, ongoing and unreasonable interference with Mr Barriball’s use and enjoyment of the land or as a consequence of obstruction of sunlight or view”: i) I believe that there is ample evidence of obstruction of sunlight which is clearly demonstrated in figure 8 of the arborists report. This shows the canopy has encroached to approximately 2.5 metres from roof line of my dwelling; the distance from the dividing fence to my dwelling is approximately 9.5 metres. The canopy is likely to reach my dwelling in 1-2 years meaning total sunlight obstruction to the entire back yard. ii) I further believe that unreasonable interference of use and enjoyment of the land already exists with regular soiling of the clothes line that is now partially covered by the canopy. The progressing obstruction of sunlight also impacts on my ability to maintain a vege garden that I have enjoyed since shifting here in 1995. [18] Mr Barriball stated in regard to the orders sought that the arborists report concluded that lopping and trimming branches back to the fence line is not an option and he recommended that the trees “be allowed to be removed and replaced with a more suitable smaller tree species”. That the respondent failed to agree to an earlier recommendation for some trees to be removed and failed to act on a request by the Tribunal member to submit an application to the Sunshine Regional Council. [19] He asked that the Tribunal order that all trees identified in the arborist’s report be removed with the cost to be borne by the respondents and that also be responsible for the cost of any damage caused to the dividing fence or any other neighbourhood property and that the work be completed within 60 days of notice. [20] Following Tribunal directions Mr Barriball provided further submissions in regard to his appeal. He referred to the arborist’s report and in particular figure 8 which clearly shows the narrow gap of some 2.5 metres that exists between the canopy of the trees and the roof line of his dwelling. He also enclosed 4 photographs taken from the rear balcony of his dwelling which he said clearly demonstrate the changes that have taken place concerning the growth of the 5 trees identified in the arborist’s report. He states that the photographic evidence provided by the arborist and himself provides ample evidence to satisfy s 66(2) and (3) of the Act and that the orders sought to have the trees removed area reasonable and fair method of resolving this dispute. He asked that the unwillingness, so far of the respondents, to act on any requests made by the Tribunal also be taken into account. [21] As mentioned Mr Peterson and Mr Peterson did not provide a response to the original application nor any submissions in regard to this appeal. -- 5 of 7 -- 6 [22] A party may appeal as of right on a question of law5. Where the appeal is based on a question of fact or a question of mixed law and fact then an appeal may be made only if the party has obtained the appeal Tribunals leave to appeal6. In this case Mr Barriball’s grounds of appeal go to the evidence accepted by the member and are therefore on a question of fact or mixed law and fact and leave to appeal will be required. [23] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?7 Is there a reasonable prospect that the applicant will obtain substantive relief?8 Is leave necessary to correct a substantial injustice to the applicant caused by some error?9 Is there a question of general importance upon which further argument, and a decision of the appellate Court or Tribunal, would be to the public advantage?10 [24] The legal test applied here by the learned member is in accordance with s 66 of the Neighbourhood Disputes Act. The question then is whether there has been any error in regard to the learned member’s findings of fact and the application of the legal test to those findings. The learned member relied on Mr Inman’s report in respect of the damage and potential for damage to Mr Barriball’s property from the trees and was satisfied that the only source of potential damage was the dead limb on tree 4 which could affect the fence. [25] While Mr Barriball had made allegations of damage and obstruction of sunlight he provided no evidence to support these allegations. The appeal Tribunal notes that an inspection was not available of Mr Barriball’s property to assess whether the trees were causing or likely to cause damage to his property. Mr Inman though observed that the vege garden did not appear shaded. Mr Barriball sought to rely on a photo in Mr Inman’s report described as figure 8. This photo appears to be an unscaled satellite photo which has been used by Mr Inman to illustrate that the trees have grown together to form one canopy. [26] There is no reference in Mr Inman’s report to support Mr Barriball’s statement that the photo shows the trees are 2.5 metres from the roofline of his dwelling. This also conflicts with the statement in his application that the trees are only 6 metres from his dwelling. [27] The photos provided by Mr Barriball could, with the leave of the Tribunal, be taken into account if leave to appeal was granted11. They show that the trees have grown since 1995 when he took up residence and that 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) and (3). 6 Ibid s 142(3). 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Cachia v Grech [2009] NSCAA 232. 9 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 10 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147(2). -- 6 of 7 -- 7 there is some overhang into his yard. They do not show that the trees are likely to be causing any significant affect in terms of obstruction of sunlight. There was no photographic evidence provided of the other allegations made by Mr Barriball in regard to soiled clothes, television reception. [28] The tree assessor may have made a recommendation that the trees be removed but the Tribunal can only make an order in that regard if there is evidence accepted by the Tribunal in accordance with s 66 of the Neighbourhood Disputes Act. The only tree which was affecting Mr Barriball’s land in Mr Inman’s opinion was tree 4 which required a limb to be removed to prevent damage to the fence. The appeal Tribunal is satisfied that the learned member in accepting Mr Inman’s evidence in regard to the affect the trees were having on Mr Barriball’s land has not made any error. [29] Even if leave to appeal was granted the further evidence provided by Mr Barriball in terms of the photos and his seeking to rely on figure 8 of Mr Inman’s report does not appear to support a finding that the land has been affected by the trees to any greater extent than already accepted by the learned member. [30] There is no discernible error in the decision of the learned member and no reasonable prospect of substantive relief. Leave to appeal is refused. -- 7 of 7 --