Buzio v O'Riley & Anor [2013] QCAT 494

CITATION: Buzio v O’Riley & Anor [2013] QCAT 494 PARTIES: Mrs Rita Buzio (Applicant) V Mr Terrence O’Riley and Mrs Tanya Marie O’Riley (Respondents) APPLICATION NUMBER: NDR189-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 31 July 2013 HEARD AT: Mareeba DECISION OF: Simon Coolican, Member DELIVERED ON: 11 September 2013 DELIVERED AT: Mareeba ORDERS MADE: 1. The Application is dismissed. 2. Each party to bear their own costs of and incidental to the application. CATCHWORDS: TREE DISPUTE - River Cherry Tree - Wattle Tree - Dam wall - Tree root system crossing dividing boundary Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 APPEARANCES and REPRESENTATION (if any): APPLICANT: Self represented RESPONDENT: Self represented REASONS FOR DECISION [1] Mrs Rita Buzio owns a 5 acre property at 15 Edward Elgar Close, Speewah, and has lived there since September 2002. -- 1 of 6 -- 2 [2] Her neighbours, Terrence and Tanya O’Riley own the adjoining property of 5 acres at 15 Nimrod Close, Speewah, and have lived there since 1999. [3] Shortly after settling into their property, the O’Rileys planted around 420 River Cherry trees (Syzygium tierneyanum) within the bounds of their property and around 48 of these were planted in line with the border now shared with Mrs Buzio. All of these trees were planted prior to Mrs Buzio moving into her property. [4] Mrs Buzio claims that the root systems of the 48 River Cherry trees are encroaching on her property (beneath ground), that these roots will one day penetrate the earth wall of her dam and that their overhanging branches detract from the enjoyable use of her land where she wants to establish an organic garden. [5] Mrs Buzio further claims that 2 wattle trees, also located on the O’Riley property and overhanging above her land, are in danger of dropping branches and injuring anyone standing below. [6] Additionally, Mrs Buzio has concerns about several sapling wattle trees growing up through the dividing fence on the border shared with the O’Rileys and that they will outgrow their location. [7] Mrs Buzio has taken the O’Riley’s to QCAT for the following orders to be made in her favour: a) Removal of the 48 River Cherry trees planted upon the O’Rileys land in line with the dividing boundary. b) The trimming of 2 wattle trees that overhang Mrs Buzio’s property. c) The removal of any sapling wattle trees growing up through the fence on the dividing border. [8] During the course of the hearing each party was granted an opportunity to cross question the other in the witness box and the Tribunal also considered a report by a QCAT appointed tree assessor, Mr Pieter Taylor. Mr Taylor was not present for the hearing. [9] During the hearing, it was agreed between the parties that the sapling wattle trees growing up through the fence on the dividing border, could be removed by Mrs Buzio without objection from the O’Rileys. [10] Evidence is before QCAT that Mrs Buzio, by her own admission, dug a trench along the perimeter of the property that sides with the O’Rileys in order to install a closed circuit television security system. In doing so the machinery used to dig the trench had severed all of the root systems encroaching her property beneath the boundary. [11] Mrs Buzio testified that she had no evidence to indicate that the root system of any of the existing River Cherry trees had penetrated the dam -- 2 of 6 -- 3 wall. Only that she believed the roots “would” one day penetrate the dam wall. [12] Mrs Buzio also testified that there had been no branches drop onto her property from any of the trees, only that an excessive number of leaves had. [13] Mr and Mrs O’Riley testified that prior to planting the River Cherry trees they had attended a field day at a local nursery and were advised by an employee of the nursery to plant the River Cherry trees. The O’Rileys are also of the belief that they have not breached any laws and therefore should not have to remove any of the trees. Visibly the trees are within their property apart from the overhanging branches. [14] The following points are the salient findings from Mr Taylors report: a) Mrs Buzio had dug a trench along the shared boundary of the property for the placement of CCTV security device. The digging of the trench along the boundary had caused all roots of the trees to be severed and in turn would mean these roots would not pose a risk to the dam wall in the short to medium term, i.e. 1 – 5 years. b) Enquiries with the Tablelands Regional Council had revealed the trees in question were not a protected species under Council local laws and policies. c) There was no likelihood of the trees causing serious injury to a person in the next 12 months – Sect 46 (a)(ii)(A) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. d) The root pruning had been cut at the allowable limits of structural stability and any further cutting combined with excessive pruning of the canopy on the boundary side could make the trees prone to failure in wind towards the tree keepers land. e) The trees are not causing or likely to cause within the next 12 months, substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land – Sect 46(a)(ii)(C) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. [15] Aside from the aforementioned points, Mr Taylors report also provides three suggested options for consideration by all parties in an attempt to resolve the dispute but only in relation to the River Cherry trees. [16] In Summary these are: 1) Planting a new row of trees parallel to the existing 48 River Cherry trees but 4 – 6 metres from the boundary, and then after these become established in 8 – 10 years, removal of the exiting River Cherry trees. 2) The installation of a root barrier along the full length of the boundary. -- 3 of 6 -- 4 3) A combination of options (1) and (2) above. I believe that none of these options are workable. [17] Options 1 and 3 above are predicted to take at least 8 years to complete. Combine this with the possibility of the O’Rileys selling their property during that period makes enforcement of a Tribunal Order against the O’Rileys difficult and open to legal challenge by the new owner of their property. [18] Part 7 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides regulations for the selling of properties subject to QCAT orders however given the period of time in question to finalise the tree replacement proposal, an order of this nature is deemed by me as not the preferred option. [19] I rule out options 1 and 3 as possible solutions. [20] The option 2 of installing a root barrier in the CCTV trench is also unworkable. [21] The QCAT application of Mrs Buzio is for an order to have the trees removed entirely and the root barrier option does not incorporate a solution for the tree canopy encroachment issue. Also this suggestion was not addressed during the course of the hearing and I further note that Mrs Buzio in her response (dated 1st May, 2013) to the Taylor report rejected this option to appease her concerns. [22] I therefore rule out option 2 also and would be reluctant to make an order about root barriers given the Taylor report indicated that the natural root system assists with tree stabilisation. [23] Mrs Buzio has responded to the Taylor report and discounted the 3 options above but instead suggesting her own option “Resolution Number 4” which replaces the 48 River Cherry trees with 50 lilly pilly trees. [24] In summary “Resolution Number 4” suggests the 48 River Cherry trees are cut down and placed behind and against her fence and shortly thereafter a line of 50 lilly-pilly’s are planted around 2.5 – 3 metres inside the O’Rileys boundary. The cost of the lilly-pilly’s are to be met by Mrs Buzio with the labour cost of removal of the River Cherry trees to be shared equally by the parties. A new line of River Cherry trees is then to be planted 6 metres from the boundary line inside the O’Rileys property, and this cost is to be shared equally also. [25] I rule out this option as a workable solution also. Mr and Mrs O’Riley have objected to any orders involving the expensive removal of the existing line of trees and want the existing trees to remain as is and where is. [26] Therefore a determination must be made as to whether the O’Rileys are in any way in breach of the relevant legislation, specifically the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. -- 4 of 6 -- 5 [27] I note that the River Cherry trees were well established when Mrs Buzio moved into her property and that Mrs Buzio built her dam in 2006/2007, long after the trees were planted. That gives rise to the question as to why Mrs Buzio would build a dam in the location selected given it was so close to these trees that naturally seek out water through their extensive root systems. [28] Mrs Buzio has stated in her application that she should be able to build her dam wherever she likes on her property. Whilst this assumption is correct, consideration needs to be made at the same time of the impact a neighbours tree(s) root systems(s) may have on the dam as it is not unreasonable to expect root systems from trees on adjoining properties to seek out the water inside the dam. [29] I find it unreasonable for a landowner to expect a neighbour to remove established trees so that the landowner can build a dam on his/her property. [30] I further note on the last page of the tree assessors report the following selected and relevant comments of “pertinent factors to consider in this case”: “The tree keeper has not breached any laws or regulations in the planting and placement of trees within his property boundary. The trees are planted in such a way as to be consistent with tree planting on other such properties in the area and region. The encroachment and overhang on such large properties as these are usually considered normal and seen as beneficial to both landowners as a windbreak and visual barrier.” [31] In complying with their obligations under the relevant legislation [Neighbourhood Disputes (Dividing Fences and Trees) Act 2011], the O’Rileys have maintained the trees on their property to a safe and non- interfering standard. [32] Section 52 of the Act defines the responsibilities of a tree-keeper and I find that the O’Rileys have not been in breach of this requirement. The Taylor report also confirms this. [33] Sections 55-58 of the Act outline a formal resolution process a landowner is to follow in the event that overhanging branches are impacting upon their land. [34] Mrs Buzio is familiar with this process and has provided evidence in her application of completion of a “Form 3 Notice for removal of Particular Overhanging Branches” which was completed around August 1st, 2012. [35] Further, the O’Rileys testified they were prepared to fix any issues not in compliance with the legislation if they became aware of them. -- 5 of 6 -- 6 [36] I note also section 72 of the Act that declares the removal or destruction of a living tree is to be avoided. [37] The Taylor report did not address the issues Mrs Buzio had with the wattle trees overhanging her property. During the hearing Mrs Buzio shared her concerns that the wattle trees might drop one or more of their branches and these could fall onto someone standing below the tree and badly injure them. [38] Mr O’Riley testified that the branches on the trees were around 10 metres above ground and would be extremely difficult to prune and that the tree was in good condition in his opinion. [39] Mrs Buzio has failed to prove to the Tribunal that there is a real and present danger of the branches dropping. It is the obligation of the Applicant in legal disputes to bring evidence in support of their argument to the Court or Tribunal for consideration and determination. This she has not done but instead offered her own personal opinion that the tree branches might one day drop unexpectedly. [40] I cannot discount the possibility of this scenario but without firm evidence in support of her argument I will not be making orders affirming her request. [41] Without denying Mrs Buzio her rights under any relevant laws, I cannot find in her favour for any of the arguments tendered. [42] I find that the 48 River Cherry trees do not require removal. [43] I also find that the two wattle trees do not require pruning. [44] Accordingly, the application is dismissed. -- 6 of 6 --