Ferraro v Body Corporate of 'Omaru' Brisbane [2013] QCAT 343

CITATION: Ferraro v Body Corporate of ‘Omaru’ Brisbane City Council [2013] QCAT 343 PARTIES: John Samual Ferraro and Gina Ferraro (Applicants) V Body Corporate of ‘Omaru’ Brisbane City Council (Respondents) APPLICATION NUMBER: NDR187-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 3 April 2013 HEARD AT: Brisbane DECISION OF: Mr Jim Allen, Member DELIVERED ON: 3 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The registered owner of the lot at 110 Crosby Road, ASCOT QLD 4007 (“the Tree-Keeper”) arrange to have the following works carried out on the tree the subject of the dispute (“the Initial Works”): (a) Dead-wood and directional pruning on the west, south-west and north- west side of the canopy of the Eucalyptus microcorys (Tallowwoo d) as identified in Attachment A. 2. The Tree-Keeper arrange to have on- going maintenance works carried out every 30 to 36 months on the tree the subject of the dispute by dead-wood and directional pruning on the west, south-west and north-west side of the canopy of the Eucalyptus microcorys (Tallowwood) as identified in Attachment A (“the Subsequent Works”). -- 1 of 9 -- 2 3. The Tree-Keeper arrange to have on- going inspections carried out every 30 to 36 months by an appropriately insured arborist with a minimum of Australian Qualifications Framework (AQF) level 5 in arboriculture on the subject tree to assess its structural integrity and overall vigour. 4. The Initial Works and the Subsequent Works must be carried out: (a) In accordance with Australian Standard 4373-2007, Pruning of Amenity Trees; and (b) By an appropriately insured arborist with a minimum of AQF level 3 in arboriculture supervised by an arborist with a minimum of AQF level 5 in arboriculture. 5. The Initial Works must be completed within 60 days of this order. CATCHWORDS: TREE DISPUTE - claim of serious risk of danger to person and property – compensation - substantial interference as a result of leaf litter Neighbourhood Disputes Resolution Act 2011 ss 46, 48, 49, 52, 57 59, 65, 66 71, 72, 74. Findlay and anor v Woodward [2012] QCAT 380 Thomsen v White [2012] QCAT 381 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr and Mrs Ferraro were self-represented. RESPONDENT: Mr Mark Grady appeared for Body Corporate of ‘Omaru’ Mr Bill Manners appeared for the Brisbane City Council -- 2 of 9 -- 3 REASONS FOR DECISION [1] Mr and Ms Ferraro reside at 5 Comus Avenue, Ascot. Omaru is a block of units located at 110 Crosby Road, Ascot. The properties share a common boundary and there is a large tallowwood tree located on the Omaru side of the boundary which the Ferraro’s say has branches approximately 12 metres high which overhang their property by 5 metres. Mr and Mrs Ferraro allege that with the storm season approaching the sheer size of the tree posed a real threat of injury or death. There is also said to be an issue with their gutters filling with leaves every three to four weeks due to the way the tree has grown and that it is not possible to keep up with cleaning the gutters at the rate required to avoid damage to the roofing iron because of leaves collecting in the gutters and building up onto the roofing iron. Due to volume of leaves in the gutters, when it rains, water is alleged to overflow into the eaves of their house, causing structural damage. It is also alleged that the tree sheds branches as well as the leaves into their garden, pergola area, pathways, water tank and roof. The retaining wall between the unit block and the Ferraro’s property is also said to have cracked as a result of the Tree. It is noted that there is a vegetation protection order over the Omaru land but it is stated that this species of tree does not fall under that protection, [2] Mr and Mrs Ferraro have requested the Tribunal to make an order to remove the tree with Omaru to pay the costs of the tree removal and that they be paid an amount of $2,500.00 as compensation. [3] Omaru stated in its response that over 75% of the canopy is over Omaru and Comus 3 property leaving only 25% over Comus 5 and that no branches overhang the house itself. That the tree has withstood all the big storms that Brisbane has been subjected to over the last 20 years and has not dropped any large branches or caused any damage to property over the time frame. The leaves in the gutters could have come from other sources and gutter guard would be one way of coping with the leaves issue. The Ferraro’s have not been seen clearing gutters for quite some time. The tree has been pruned professionally at regular intervals and this will continue. The tree is said to fall under the vegetation protection order. The retaining wall is said to have been cracked by another tree and is wholly on the property of Omaru. There is said to be no evidence that any large branches have fallen. [4] The Brisbane City Council has elected to be joined as a party to the proceeding1. [5] The Tribunal appointed an arborist, Mr Fitzpatrick to carry out an inspection of the tree and to provide a report to the Tribunal2. The role of the tree assessor is to provide expert recommendations to the Tribunal to determine if the dispute is within the jurisdiction of the Neighbourhood Disputes Resolution Act 2011, NDR Act (since amended to the 1 Neighbourhood Disputed Resolution Act 2011 (as it then was) s 64. 2 QCAT Direction no 5 of 2011. -- 3 of 9 -- 4 Neighbourhood Disputes (Dividing Fences and trees) Act 2011; determine if the orders sought are appropriate with respect to the NDR Act and determine and specify appropriate actions, if any, that may lead to the efficient and fair resolution of the tree dispute. Jurisdiction [6] Before the Tribunal can consider making an order there are threshold issues which must be determined. Firstly, Mr and Mrs Ferraro must constitute neighbours for the purposes of the NDR Act3 that is they must be owners of land affected4 a particular tree. Omaru, must constitute the tree-keeper5 in respect of the tree, that is the body corporate fro the community titles scheme where the tree is situated on common property. [7] Mr Fitzpatrick in his report6 identified the tree as a Tallowwood (Eucalyptus microcorys) which was 16 metre high and had a canopy of 20 metre, mainly N-S. He stated that the eastern edge of the trunk is within 200 mm of the boundary fence, at the rear S-E corner of Mr and Mrs Ferraro’s property. [8] Currently, there are branches of the subject tree overhanging the Ferraro’s land by more than .5 m. The claim by Omaru that only 25% of the subject tree canopy is overhanging the Ferraro’s property is not accurate. The canopy overhanging the Ferraro’s property is estimated to be 35-40%. Some secondary branch tips extend over the Ferraro’s dwelling to a maximum of 0.5 m. [9] Omaru did not dispute that it was the tree-keeper in respect of the tallowwood. [10] The Tribunal is satisfied that as a result of tree overhanging Mr and Mrs Ferraro’s land that they are in a neighbour tree-keeper relationship with Omaru in regard to the tallowwood. [11] The responsibilities of a tree-keeper include cutting and removing any branches of the tree that overhang a neighbours land7 and to ensure that the tree does not cause serious injury to a person, serious damage to a person’s land or property or substantial, ongoing and unreasonable interference with a persons use and enjoyment of the land. There is a mechanism to enable a neighbour to give notice to a tree-keeper where there is an overhang of at least 50 cm and the branch is 2.5m or less 3 Neighbour Disputes Resolution Act 2011, s 49. 4 Ibid s 46. This includes where branches from the tree overhang the land or the tree has or is likely within 12 months to cause serious injury, serious damage or substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land. 5 Ibid s 48. 6 Exhibit 8. 7 Neighbour Disputes Resolution Act 2011 s 52. -- 4 of 9 -- 5 above the ground8. Having regard to the height of the tree in this case being 16 m that mechanism does not apply and so an application can be made to the Tribunal for an order9. [12] Before the Tribunal can make an order it is required to be satisfied that Mr and Mrs Ferraro as the neighbour have made a reasonable effort to resolve the dispute10. The Tribunal has been provided with copies of correspondence that passed between the parties in regard to the tree11 and is satisfied that reasonable efforts have been made to resolve the dispute. There are other matters contained in that section for which the Tribunal is also satisfied in particular the extent of overhang, that all relevant parties have been served and the availability of any local law. Is the Tree Affecting the Ferraro’s Land [13] When exercising its power to make order the Tribunal must consider the matters set out in Division 4 of the NDR Act and may make the orders it considers appropriate in relation to a tree affecting the neighbours land to prevent serious injury to any person; or 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 neighbours land12 [14] Mr Fitzpatrick in his report stated that: a) The tree is showing good vigour as evidenced by normal leaf size, canopy density and general lack of atypical deadwood or crown recession. There is evidence of previous significant directional pruning on the western side (the side overhanging the Omaru property). The pruning works have been carried out mainly in line with AS4373 Pruning of Amenity Trees 2007. These works, and some dead-wood and formative pruning have been carried out by contractors appointed and paid for by the respondent. The pruning works have resulted in a crown mainly concentrated on the top 1/3 of the tree, growing in a western direction away from the Omaru property and towards the Ferraro's and another neighbouring property. b) To the immediate S-W of the subject tree, recent major earthworks within an adjacent property (no. 3 Comus Ave- a vacant block in the initial stages of development) have lowered the grade in two stages. An inspection of the cut faces did not reveal any evidence of large diameter (greater than 80 mm) root severance. This does not mean, however, that large diameter root severance did not take place as resulting spoil may have covered such evidence. 8 Ibid s 57. 9 Ibid s 59. 10 Ibid s 65(a). 11 Exhibit 1, tab 1.2. 12 Neighbour Disputes Resolution Act 2011 s 66(2). -- 5 of 9 -- 6 c) At the time of the inspection, there was a large amount of debris within the Ferraro’s guttering. Most of the debris was from the Tallowwood, but there was some leaves present from a fiddle wood. d) Searches of both DERM and the Brisbane City Council were inconclusive in their findings of any Vegetation Protection Order. e) The subject tree is not causing, or is not likely to cause, serious injury within the next 12 months for the following reasons: i) Tree is showing good vigour, and failure of tree parts/whole tree is not predicted. ii) The species has not typical problems with thorns, heavy fruit, tree root trip hazards or known associations with allergies. f) This tree is/will not causing/cause, and is not likely to cause serious damage to land or property on land, within the next 12 months. All trees shed leaves, flowers and fruit, bark and twigs, and therefore will continue to cause debris build up within the applicant’s guttering and roof. This, however, cannot be considered serious damage. [15] In Mr Fitzpatrick’s opinion, no factors other than the subject tree, have contributed to the alleged tree affects (or potential affects) in dispute. The subject tree is said to provide some shade to the Omaru property, as well as, according to Omaru, some habitat for bird life. [16] The Ferraro’s have produced material in regard to other tree failures including that of a friend Mr Cec Kojrowicz13 and expressed their concern of the tree falling on their property at the hearing. They did not raise any evidence in regard to serious injury which may have already occurred to any person. They also sought to rely on the decision in Findlay and Anor v Woodward [2012] QCAT 380 where a Poinciana was ordered to be removed following pruning which shaped the tree to be lopsided which the arborist said cause it to experience failure of roots, trunk or branch. While the pruning here may have favoured the crown in a particular direction Mr Fitzpatrick did not hold the view that there was any potential for the tree to fail as a result. They have cited the decision in Thomsen v White [2012] QCAT 381 where senior member Stilgoe stated in regard to a maintenance regime, the maintenance regime will require co-operation between the neighbours which has not, to date, been evidenced. There is no point in the Tribunal making orders that are bound to fail. In that case there were clear grounds for the removal for the tree. [17] Omaru and the Brisbane City Council concur with the view of Mr Fitzpatrick. There being no evidence to refute that of Mr Fitzpatrick the Tribunal is not satisfied that the tree has or is likely to cause serious injury to any person. 13 Exhibit 1 tab 2.1 to 2.5. -- 6 of 9 -- 7 [18] Mr and Mrs Ferraro have provided photos of damage to their eaves14 which they say has been caused by an accumulation of leaf litter which they have not been able to remove and a quote for the repair of the damage in the amount of $2,387.0015. This is on the basis that the requirement to remove leaf debris from the gutters every three to four weeks was a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbours land. Omaru provided statement from residents16 of the Omaru complex claiming that they had not observed any cleaning of the gutters at the Ferraro residence for at least 6 months. The Brisbane City Council17 stated that it was not clear from the information provided if the leaf debris is the sole cause of the damage to the property and that the accumulation of leaf debris and subsequent drainage blockage is avoidable through maintenance. [19] The Tribunal having viewed the photos had concerns that the area in question appeared too old and that the work may represent maintenance work only. This is also the issue that removal of the leaf litter would have ensured that any damage would have been minimised18. The Tribunal is not satisfied that the damage in question can be attributed to the tree and if there is some contribution then the Ferraro’s should have taken steps to mitigate and no order will be made for compensation. [20] Mr and Mrs Ferraro have alleged that to ensure that leaf debris was regularly removed from their gutters they would have to clean them every 3 to 4 weeks. From the photos provided it is clear that a substantial amount of leaf debris can build up form the tree as found by the arborist. The question then is whether this constitutes substantial ongoing and unreasonable interference with the use and enjoyment of their land. Order [21] The Tribunal notes that the tree provides habitat benefits and benefit to the residents of Omaru19 and that the tree has been regularly pruned. From Mr Fitzpatrick’s report though it appears that the pruning has been done in such a way that the benefits of the tree are retained by Omaru but the crown of the tree is almost 40% over the Ferraro’s property. The Tribunal considers that this fact has resulted in the abundance of leaf debris which now falls into the gutters of the Ferraro’s property and that as a result this constitutes an unreasonable interference with their enjoyment of their property and therefore there is a ground to make an order under section 66 of the NDR Act. There is no question of safety here20 and so 14 Exhibit 1, tab 4.3. 15 Exhibit 1, tab 4.4. 16 Exhibit 4, 5 and 6. 17 Exhibit 7. 18 Neighbour Disputes Resolution Act 2011 s 72(2). 19 Exhibit 3. 20 Neighbour Disputes Resolution Act 2011 s 71. -- 7 of 9 -- 8 the tree should not be removed unless the issue relating to it cannot satisfactorily be resolved21. [22] The following tree work recommendations were made by Mr Fitzpatrick to minimise the debris drop problems associated and caused by the subject tree:- a) Dead-wood and directional pruning (see appendix B-Photographs-for limbs identified for reduction/removal and Appendix D-Definitions-for description and scope of pruning types) of T1. Pruning works are only to be carried out on W,S-W and N-W sides of property. No further pruning works are required on the Eastern side of the canopy at this time. b) Pruning works to be carried out in strict accordance with AS4373 Pruning of Amenity Trees (2007) by a minimum AQF 5 Arborist, or a minimum AQF 3 Arborist to be supervised by a minimum AQF 5 Arborist. c) The pruning works will need to be carried out on an ongoing basis in order to maintain growth away from the Ferraro’s dwelling (every 30 to 36 months). d) In addition to the pruning works, it is also recommended that the AQF 5 Arborist, who should be experienced and competent in tree hazard assessment, carry out ongoing inspections of the tree while on site, to assess the structural integrity and overall vigour of the subject tree following any potential root severance and construction works inflicted during construction works in the property to the rear. [23] Mr Ferraro acknowledged at the hearing that the pruning of the limbs would help and Omaru and the Brisbane City Council were in agreement with the recommendations. [24] The Tribunal makes its order in the terms set out above. 21 Ibid s 72. -- 8 of 9 -- 9 Attachment A -- 9 of 9 --