Collins v McNeil [2013] QCAT 429

CITATION: Collins v McNeil [2013] QCAT 429 PARTIES: Michael Peter Collins (Applicant) v Adrian McNeil (Respondent) APPLICATION NUMBER: NDR035-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 20 May 2013 HEARD AT: Brisbane DECISION OF: K Roseby, Member DELIVERED ON: 19 August 2013 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that: 1. The Respondent, within 28 days: (a) Remove the tree; (b) Pay to the Applicant the sum of $2,365.00 as compensation for damage to the Applicant’s property; 2. The Applicant has liberty to apply in relation to the enforcement of these orders until and including 30 September 2013. CATCHWORDS: TREE DISPUTE – where large kauri pine on boundary – where allergic reaction to pollen – where volume of tree canopy overhanging boundary – where safety issues of falling cones and branches – where risk of tree falling – where tree causing damage to property – where inability to install solar system – where reduction in view – whether substantial, ongoing and unreasonable interference Neighbourhood Disputes Resolution Act 2011 ss 46, 65, 66, 71, 72, 73 APPEARANCES and REPRESENTATION (if any): -- 1 of 9 -- 2 APPLICANT: Mr Michael Peter Collins RESPONDENT: Mr Adrian McNeil REASONS FOR DECISION [1] Mr Michael Collins and Mr Adrian McNeil are neighbours in the suburb of Tarragindi in Brisbane. Mr Collins has made application to the Tribunal in respect of a Queensland kauri pine (agathis robusta) tree located on Mr McNeil‟s property and near the boundary between the neighbours. [2] Kauri pine trees are, by nature, of some significant size. This particular tree is currently approximately 21m in height and almost 1m in diameter. Its branches overhang onto Mr Collins‟ property by at least 4m.1 Mr Collins believes that, when it‟s mature, the tree will be 50m tall and over 2m in diameter. Mr Collins‟ property is 662sqm in size. [3] In his application, Mr Collins is seeking the removal of the tree together with compensation for damage to his property pursuant to the Neighbourhood Disputes Resolution Act 2011. Mr Collins says that the application followed many requests to the McNeils to remove the tree dating back to 1989. Mr McNeil and his family value the 50 year old tree and do not want it removed. [4] At the hearing, Mr Collins appeared together with his wife Anne Marie. Mr McNeil appeared together with his wife Vivienne and daughter Heather. [5] The issues raised by Mr Collins, in support of his application, are as follows: a) His allergic reaction to pollen from the tree; b) The volume of the tree canopy overhanging his property; c) The safety issue of falling cones and branches from the tree; d) The risk of the tree falling; e) The damage the tree is causing to his property; f) His inability to install his solar system because of the tree; g) The significant reduction in the view from his property because of the tree. Allergic reaction 1 Tree Assessment Report dated 19 May 2012 at paragraph 2. -- 2 of 9 -- 3 [6] Mr Collins gave evidence that, after having spent time in his back yard, or even sleeping on sheets that had been freshly washed and dried on the clothes line, he would break out in red blotches on his arms and legs that were intensely itchy that would last between 3 - 4 weeks. Mr Collins said that he was able to reduce the symptoms if he had a shower immediately he came inside the house and applied a cream he had been prescribed. [7] After seeking medical advice, Mr Collins told the Tribunal that he suffers a reaction to the pollen from the tree and that he has undergone allergy testing to confirm that this is the case. [8] Mr Collins produced two letters: a) a letter from Dr Conor Calder-Potts, Allergy Medical, dated 10 September 2012 confirming that Mr Collins had a positive reaction to the tree pollen Agathis Robusta (Queensland kauri) on skin patch testing2; b) a letter from Professor Pete Smith, Allergy Medical, incorrectly dated 26 April 2011 confirming the procedure undertaken on 6 September 2012 and findings reached by Dr Calder-Potts3. [9] I accept Mr Collins‟ evidence in this regard. [10] Mr McNeil‟s suggestions to prevent such a reaction were for Mr Collins to wear protective, including a face mask, in his own backyard or to stay indoors. I do not consider either of these to be an option for Mr Collins to allow him the use and enjoyment of his backyard. Volume of canopy overhang [11] Mr Collins told the Tribunal that at least 40% of the substantial tree canopy overhangs his property boundary. This evidence is consistent with photographs provided in evidence to the Tribunal. [12] Mr Collins said that this results in a considerable amount of leaf, twig and cone drop onto his property, including into his pool and water tanks, (which he cleans up) and that he is unable to maintain a lawn under the canopy. However, his primary concern with the considerable overhang is not for the cleanup required or lack of lawn, but rather for the safety hazard with the falling cones and branches. Falling cones and branches [13] On Mr Collins‟ evidence, he and his family are unable to use and enjoy all of their property due to the unreasonable interference caused by the falling cones and branches from the tree. 2 Contained within Exhibit 1. 3 Exhibit 3. -- 3 of 9 -- 4 [14] The cones, Mr Collins says, weigh approximately 500gr and are 100mm in diameter and members of his family have been hit when they fall causing cuts and bruising. I accept Mr Collins‟ evidence in this regard. [15] Mr Collins‟ evidence included a photograph of a warning sign in respect of kauri pines4 which says: “WARNING When walking in forest with kauri pines, beware of falling cones. Kauri pines drop large fruits in November to December each year. Serious injury or death may result if you are hit by one of these cones. The native kauri pine is a tall tree with smooth to slightly flaky, mottled bark of orange, brown and grey. The leaves are dark green and oval-shaped with a pointed tip. It bears fruit in the form of large cones that weigh up to 3kg. Your safety is our concern but your responsibility.” [16] Whilst it could be argued that the cones on this relatively young tree weigh less than referenced by the warning, the tree will obviously grow. Further, falling cones causing injury to the Collins family (even if not serious injury) is nevertheless substantial, ongoing and unreasonable interference with their use and enjoyment of the land as they are unable to use the area of their property under the considerable tree overhang for fear of injury during the fruiting period of the year. [17] Mr McNeil disagreed that the cones are dangerous and said that his children had played under the tree without injury. He also referred the Tribunal to a number of other locations in Brisbane City where kauri pines were located in an attempt to counter the safety argument however such trees are a matter for the Brisbane City Council. [18] It is noted that the Act confirms that the primary consideration is the safety of any person.5 Risk of tree falling [19] Mr Collins spoke about how his family live in constant fear of the tree falling during a severe storm and the significant damage a tree of that size would cause. [20] The Tribunal was referred to a news article by UQ News Online dated 27 January 20066 which reported 20 trees, including kauri pines, “crashing down” in parkland areas of the University of Queensland following a mini tornado in December 2005. The report went on to say that some of the trees had fallen and some had twisted and split and required removal. 4 Contained within Exhibit 1. 5 Neighbourhood Disputes Resolution Act 2011 s 71. 6 Contained within Exhibit 1. -- 4 of 9 -- 5 The concern for Mr Collins is that the University of Queensland is less than 5km away from his family home. [21] The comment was made by Mr Collins that if the tree remained and subsequently fell, it had the potential to threaten eight homes and the families housed within, depending on the way in which it fell.7 [22] I agree with Mr Collins that there is a risk associated with the tree in the event of a cyclone or other extreme whether event.8 Damage caused to property [23] The parties both gave evidence about two areas of damage. [24] First, the common boundary fence is damaged in and around the area where the tree is located. The trunk of the tree is immediately inside the fence line such that the significant root ball has extended onto Collins‟ property and has damaged the fence causing it to collapse in that area. There was no dispute in this regard. Though the fence can be fixed to accommodate the increased size, the tree will, obviously, continue to grow. [25] Secondly, and specific to Mr Collins, he argued that the tree has raised the concrete slab in front of the garage to the extent that it has upset the natural water flow away from the garage doors. Mr Collins is also concerned that, in time, further damage will be caused to the garage. [26] Mr Thomas Glass, a registered professional engineer with Bruce Young Partners consulting structural and civil engineers, prepared a „Structural Assessment of Garage Structure‟ dated 17 September 2012 based on information provided by Mr Collins.9 [27] In his report, Mr Glass states10 that “it is clear that the upward heave in the garage apron has been caused by the penetration of roots into the sub- grade beneath the concrete apron” and that the tree is a “threat to the on- going integrity of the structure”. [28] Mr Glass also noted11 that, as the tree grows and matures, it “will cause irreversible damage in the form foundation failure and cracking of the masonry walls” and that “the life of the structure will be significantly compromised”. [29] I accept the evidence of Mr Glass. 7 Appendix 2 to Application. 8 Neighbourhood Disputes Resolution Act 2011 s 73(1)(i). 9 Structural Assessment of Garage Structure contained within Exhibit 1. 10 Ibid, p6. 11 Ibid, p6. -- 5 of 9 -- 6 [30] Mr Glass recommended12 that the tree with its root ball be removed to prevent further damage occurring. [31] Mr Collins has obtained two quotes to fix the existing damage to the concrete apron.13 Both quotes exceed the value of the amount originally claimed by Mr Collins in his Application. [32] Mr McNeil argued that the tree has a non-invasive root system and that, on that basis, the tree was not the cause of the damage. However, the Tree Assessment Report14 confirms that there is “evidence of lifting of the concrete pathway along the front of the garage from the subject tree’s roots”. [33] In making my decision, I have considered the location of the tree in terms of the boundary of Mr McNeil‟s property together with the fence and Mr Collins‟ garage that have both been affected by the location of the tree.15 Inability to install solar system [34] Mr Collins told the Tribunal about the self sufficient solar system he wanted to install at his property. The system described was not a standard solar system but one that was off the grid and would make his property completely independent. Mr Collins explained the system to the Tribunal together with the need for the solar panels to be located on the roof of the garage and the large battery backup system in some detail. [35] The difficulty for Mr Collins is that, on his evidence, the tree casts significant shadow on the roof of the garage such that the solar panels would receive insufficient sunlight for the purpose of the system. Mr Collins had significant photographic evidence of the shading on the roof of his garage which he says is preventing him from installing the solar system.16 [36] Mr Ryan Griffin of Phase Tech Electrical, gave evidence for Mr Collins and said that the roof of the garage was not just the preferred location but the only location where the system Mr Collins was proposing would work – save for the lack of sunlight. The issue, as explained to the Tribunal, is twofold. First, there is a need for the solar panels to be close to the large battery backup system and, given the volatile nature of batteries, from a safety perspective the batteries were better placed away from the house and in the garage (and hence the panels on the roof of the garage). Secondly, the house roof was not of sufficient size to place the necessary number of panels to operate the system Mr Collins had planned. 12 Ibid, p7. 13 Exhibit 4 – quote from JPD Concreting dated 6 May 2012 in the sum of $2,365.00 and Exhibit 5 – quote from All Zone Concrete dated 7 August 2012 in the sum of $2,959.00. 14 At paragraph numbered 2. 15 See Neighbourhood Disputes Resolution Act 2011 s 73(1)(a). 16 Exhibit 2. -- 6 of 9 -- 7 [37] After hearing about the volatility and size of the batteries required (that is, 2 to 3 tonne in weight and the physical size of 3 double wardrobes) I agree that Mr McNeil‟s suggestion of the Collins family storing the batteries required for the solar system in their house is not a suitable solution. [38] Having said that, whilst I‟m satisfied that the workings and requirements of Mr Collins‟ proposed independent solar system are backed by sound engineering, I wouldn‟t make orders based on this issue alone. Reduction in view [39] Though Mr Collins stressed that it was of little significance to his family, when compared to the other issues outlined, he said that the tree also obstructs their view of Toohey Mountain and the forest reserve which was able to be viewed when they first purchased the property. Due to the growth of the tree, he estimated that the view had been reduced by about 60% – 70%. [40] As mentioned, the Tribunal has the benefit of a Tree Assessment Report prepared by arborist, Mr Anthony Cockram. It is significant to note that, in addition to the information contained within the report, Mr Collins has since given evidence to the Tribunal in respect of his allergic reaction to the pollen produced by the tree which I accept. Further, Mr Collins has provided the evidence of Mr Glass in relation to any impact the tree has had on the structural integrity of the garage. Is the land affected by the tree? [41] The land will be affected by the tree if:17 a) The branches from the tree overhang Mr Collins‟ land; or b) The tree has caused, is causing, or is likely within the next 12 months to cause – i) serious injury to a person on the land; ii) serious damage to the land or any property on the land; or iii) substantial, ongoing and unreasonable interference with the neighbour‟s use and enjoyment of the land. [42] There is no dispute that the branches from the tree overhang Mr Collins‟ land and the Tree Assessment Report confirms that the land is affected by the tree.18 [43] I have noted and considered the comments made by Mr McNeil in his response in respect of the matters I am required to consider19 and, insofar 17 Neighbourhood Disputes Resolution Act 2011 s 46. 18 At paragraph 2.2. 19 Pursuant to Neighbourhood Disputes Resolution Act 2011 s 73. -- 7 of 9 -- 8 as I have not already referred to those matters, make specific mention as follows. [44] Mrs McNeil told the Tribunal that the tree was a significant factor in their decision to purchase the property and that it adds to the amenity of the property. [45] Mr Collins does not dispute that the tree provides amenity to Mr McNeil and his family. [46] In terms of public amenity, Mr Cockram, in his report, suggests that all large mature trees provide landscape amenity to the broader community. However, in response to this, Mr Collins conducted a survey of the local residents20 and, from the results, it would appear that the local residents do not share Mr Cockram‟s view, in respect of this particular tree. [47] At the hearing, I found Mr and Mrs Collins to be genuine about their concerns and credible in giving their evidence. On the other hand, Mr McNeil and his family expressed little to no concern for the Collins family and the issues they were experiencing as a result of the tree. [48] In considering the matters raised by Mr Collins objectively, I am satisfied, after taking into account Mr Collins‟ allergic reaction to the pollen, the volume of the tree canopy overhanging his property, the safety issue of falling cones and branches, the risk of the tree falling, the damage the tree is causing to Mr Collins‟ property and the significant reduction in the view, that there is substantial, ongoing and unreasonable interference with the use and enjoyment of his land. Further, after considering all of the evidence, I am satisfied that the Tribunal should make an order, in relation to the tree, to prevent such interference.21 [49] I am also satisfied that: a) Mr Collins has made a reasonable effort to reach agreement with Mr McNeil;22 b) to the extent that Mr Collins‟ issues relate to the land being affected because branches from the tree overhang his land - the branches extend onto his property by at least 50cm from the common boundary and he cannot otherwise resolve the issues using the process in the Act;23 c) Mr Collins has given a copy of the application to Mr McNeil.24 [50] In terms of the options available to the Tribunal, Mr Cockram in his report has stated that pruning the tree, by reducing the volume of branches to 20 Contained within Exhibit 1. 21 Neighbourhood Disputes Resolution Act 2011 s 66(2)(b)(ii). 22 Ibid s 65(a). Mr Collins has made many requests to the McNeil family since 1989 in addition to attending mediation through the Queensland Department of Justice Dispute Resolution Centre in 2004. 23 Ibid s 65(c). 24 Ibid s 65(d). -- 8 of 9 -- 9 remove the overhang on Mr Collins‟ property would put the tree out of balance and therefore “less likely to endure a major storm” and, accordingly, I do not consider that this is a viable option.25 [51] I have considered whether the issues relating to the tree can be satisfactorily resolved without ordering the removal of the tree and have determined that they cannot.26 [52] The Tribunal therefore orders that: a) Mr McNeil, within 28 days: i) remove the tree; ii) pay to Mr Collins the sum of $2,365.00 as compensation for damage to his property; b) Mr Collins has liberty to apply in relation to the enforcement of these orders until and including 30 September 2013. 25 See Ibid s 73(1)(j). 26 Ibid s 72. -- 9 of 9 --