Carrett v Atkinson & Anor [2013] QCAT 374

CITATION: Carrett v Atkinson & Anor [2013] QCAT 374 PARTIES: Colin Carrett (Applicant) V John Atkinson and Antonia Atkinson (Respondents) APPLICATION NUMBER: NDR231-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 19 July 2013 HEARD AT: Brisbane DECISION OF: Professor A Ashman, Member DELIVERED ON: 22 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The tree-keeper is to employ an arborist with Australian Qualified Framework Level 5 qualifications to inspect and provide a written report to the tree-keeper on the structural integrity of the Melaleuca quinquenervia located adjacent to the boundary of 11 Providence Street Amity Point each two years and also after any large weather event that might lead to concerns about safety to persons or property caused by that tree. 2. The tree-keeper is to provide a copy of each arborist report to the owner of 11 Providence Street Amity Point within 14 days of the tree-keeper receiving that report. CATCHWORDS : TREE DISPUTE - where the neighbour seeks the removal of a tree - where safety of a person and property damage is alleged - where there is no evidence justifying the -- 1 of 4 -- 2 removal or the tree or of damage to property. Neighbour Disputes Resolution Act 2011, ss 66, 71, & 72 APPEARANCES and REPRESENTATION (if any): APPLICANT: Colin Carrett RESPONDENT: John Atkinson Antonia Atkinson Jenny Staples REASONS FOR DECISION [1] About 150 m from the beach in a small residential community isolated from the more populated areas of North Stradbroke Island is a mature Melaleuca quinquenervia. It stands about 12 m high indicating its long association with the sandy terrain that forms the base of the barrier island. Many may see the tree and marvel at its size and proud shape, but not all view this tree with kindness. Mr Carrett is one such person as the tree grows on his neighbours’ holiday rental lot not much more than 4 m from his bedroom. [2] Mr Carrett has been concerned about the tree for some years. He contacted the real estate agent that manages the rental house and has spoken directly with the owners about his concerns. He says that the tree has massive roots that can cause damage to the foundations of his home and its drainage system and is concerned that the tree might be blown on to his home during a storm. The fear of this event causes him to sleep in his lounge room during storms as that room is the furthest away from the tree thus affording some protection if the M. quinquenervia fell. He wants the tree removed. [3] The neighbours, Mr and Mrs Atkinson, have not responded positively to Mr Carrett’s request. Consequently, Mr Carrett applied to the Tribunal for an order that the tree be removed. [4] The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person, if there is a need to remedy, restrain, or prevent serious damage to the neighbours land or property, or if there is substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land1. Additionally, the Tribunal might make an order if the trees seriously 1 Neighbour Disputes Resolution Act 2011 s 66(2). -- 2 of 4 -- 3 obstruct sunlight or cause severe obstruction to a view from the neighbour’s dwelling2. [5] The primary concern of the Neighbourhood Dispute Resolution Act 2011 (the Act) in regard to trees is the safety of any person3. 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 resolved4. [6] Sections 66(5) of the Act contains additional considerations including the payment of compensation to a neighbour for damage caused by the tree- keeper’s trees. [7] In January 2013, the Tribunal issued directions that an appropriately qualified arborist carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in Mr Carrett’s application. Mr Benjamin Inman conducted an inspection on 23 February 2013. [8] He reported that the tree in question was of a species that is prominent along the coast line of North Stradbroke Island and it appears to be in good health, vigour, and structure. He reports that on inspection he found no obvious visible defects, the leaf size and colour was normal, and the branch unions were found to have good supporting tissue. He states that the tree is not likely to cause serious injury within the next 12 months. [9] Mr Inman considered each of Mr Carrett’s concerns, including the shading of sunlight, mould, blocking of gutters with leaf litter, and damage to Mr Carrett’s foundations, slab, and drainage system. Mr Inman states that Mr Carrett could not show him any evidence of these allegations. [10] In summary, Mr Inman recommends that the tree be inspected each two years or after any large weather event by an appropriately qualified arborist. He also suggested that Mr Carrett might invest in a good quality gutter guard or a leaf filtration device to reduce any effects of leaf litter. [11] Among Mr Carrett’s submissions and contained in Mr Inman’s report are several photographs. These show the size and shape of the Melaleuca and its position on the lot. [12] Mr Carrett’s evidence given during the hearing emphasised the shading that reduces the efficiency of his solar hot water system, that root invasion caused him to replace his drainage system. He complains that he has an ongoing job of dealing with the litter from the tree, an issue that the neighbours did not face as they were not permanent residents of 2 Ibid s 66(3). 3 Ibid s 71. 4 Ibid s 72. -- 3 of 4 -- 4 the neighbouring house. He also believes that the arborist was biased against his position. [13] Mr and Mrs Atkinson are willing to abide by the arborist’s recommendations. In response to Mr Carrett’s claim that they had to replace their own drainage system due to root invasion, Mrs Atkinson gave evidence that their drains were indeed replaced but this was due to issues unrelated to any root invasion. She stated that the tree provided amenity to their house by shielding the western sun, especially during summer. [14] While the Tribunal accepts that Mr Carrett has concerns for his safety in the event of a major storm, Mr Inman states that it is not possible to predict when, where, or at what ferocity a strong weather event might cause the tree to fall and that this should not be a reason to condemn the tree on that basis alone. He states that the tree is in a well-sheltered environment from strong winds. [15] Photographs provided by Mr Carrett and Mr Inman do not show significant overshadowing of that part of his house and, while he asserts that root invasion has been an issue requiring the replacement of his drains, this in itself does not fall into the category of serious damage to property as given in s 66 of the Act. And while there is some vulnerability of the tree due to severe weather Mr Inman’s evaluation was that this vulnerability was slight. [16] Section 72 of the Act states that a tree should not be removed unless another satisfactory resolution is found. Mr Carrett suggests pruning the tree to the height of the Atkinson’s roof. If this were done, the structure of the tree would be significantly affected and Mr Inman did not recommend such an action. [17] Mr Inman recommended ongoing scrutiny of the tree’s status and the Tribunal accepts his recommendation. [18] The Tribunal, therefore, orders that the tree-keeper employs an arborist with Australian Qualified Framework Level 5 qualifications to inspect and provide a written report to the tree-keeper on the structural integrity of the tree each two years and also after any large weather event that might lead to increased concerns about safety to persons or property. [19] The tree-keeper is to provide a copy of the arborist’s report to Mr Carrett, and any future neighbours, within 14 days of the tree-keeper receiving that report. -- 4 of 4 --