Carroll v Eager [2013] QCAT 293

CITATION: Carroll v Eager [2013] QCAT 293 PARTIES: Leonard John Carroll Applicant) v Elaine Eager (Respondent) APPLICATION NUMBER: NDR120-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 16 May 2013 and 4 June 2013 HEARD AT: Brisbane DECISION OF: Christine Jones, Member DELIVERED ON: 18 June 2013 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed CATCHWORDS: TREE DISPUTE – where overhanging branches creating leaf and deadwood litter on neighbouring property; whether causing substantial, ongoing and unreasonable interference; whether serious damage to property caused by trees Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Graham & Ors v Welsh [2012] QCA 282 Thomsen v White [2012] QCAT 381. APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Leonard John Carroll in person on 16 May 2013 and represented by his son, Mr Christopher Carroll, by telephone on 4 June 2013 RESPONDENT: Mrs Elaine Eager by telephone on 16 May 2013 and 4 June 2013 -- 1 of 5 -- 2 REASONS FOR DECISION [1] Mrs Eager is a tree keeper as defined under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. She owns 2 adjoining properties at Deception Bay. She does not live on the property. It is rented. [2] Mr Carroll is her neighbour. He owns and lives on his property. Mr Carroll has applied to have branches of trees situated on Mrs Eager’s property removed or pruned. He has also applied for compensation for damage he says has been caused to his property by the trees. There were originally 7 trees which were the subject of the application. [3] The tribunal appointed Mr Michael Sowden, a qualified arborist, to provide a tree assessment report.1 At the time of his inspection one of the trees had been removed and a further 2 trees were removed by the time of the hearing. [4] The remaining 4 trees overhang the front of Mr Carroll’s property and are: a) A healthy silky oak. Its canopy spreads 3 metres laterally over Mr Carroll’s property b) 3 healthy cadaghi gum trees that form a dense clump of vegetation with canopies that spread 6 to 8 metres laterally over Mr Carroll’s property. [5] The removal of the 3 trees, which overhung the back of Mr Carroll’s property, has addressed some of the damage and interference identified in the original application. At the hearing, the remaining issues concerned allegations of serious damage to property, in particular to a dividing fence, and substantial, ongoing and unreasonable interference with Mr Carroll’s use and enjoyment of his property. [6] The tribunal can only make an order about a tree if various threshold matters are met.2 Those matters are uncontroversial in this case and I am so satisfied. [7] The tribunal can only make an order about a tree if it is to prevent serious injury to a person; or to remedy, restrain or prevent serious damage to a neighbour’s land or property, or substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land.3 [8] In considering whether an order can be made, the tribunal must have regard to matters which include the location and type of tree, any contribution it makes to the natural landscape or to public amenity or amenity of the land on which it is situated.4 1 Tree Assessment Report dated 10 November, 2012 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, ss 42, 45, 47, 48, 59, 65. 3 Ibid s 66(2). 4 Ibid s 73. -- 2 of 5 -- 3 [9] The tribunal may also have regard to the factors listed in section 74 where relevant to whether there has been serious damage to a neighbour’s property, and to the factors listed in section 75 where relevant to the question of substantial, ongoing and unreasonable interference with a neighbour’s use and enjoyment of their land. 5 Have the trees caused serious damage? [10] Mr Carroll alleges staining caused by tree debris to his roof and patio and concrete, holes and blocking in his gutters caused by deadwood fall and litter and sinking of the concrete slab at the front of his house. Mr Carroll also alleges serious damage to a dividing fence and that was his main property concern at the hearing. [11] There is a photo attached to Mr Sowden’s report which shows cracking to the concrete slab, and some photos showing leaf fall and small deadwood litter from the trees at the front of the house. There is no doubt that there is significant tree debris, but no evidence which suggests that it has caused or is likely to cause “serious damage” which goes beyond the need for regular maintenance. Mr Sowden’s report says that at his site inspection he was unable to confirm damage to the concrete slab or to Mr Carroll’s dwelling from the trees.6 The fence [12] Mr Carroll is claiming compensation for the replacement of the wooden paling boundary fence. “Some damage” to the fence was raised in the original application but additional material was provided for the hearing. There are photos of the fence attached to the Tree Assessment Report and to the material filed by Mr Carroll (Enclosure 8). The photo attached to Mr Carroll’s statement shows damage to a portion of the fence, with several missing or loose palings. [13] A number of causes of damage to the fence were put forward by Mr Carroll: (a) deterioration caused by build up of debris from the gum trees on Mrs Eager’s land, overhanging the rear of Mr Carroll’s property; damage due to general lack of maintenance; and damage caused by the removal of a fence post. This is supported in a brief report provided to Mr Carroll by Mr Derek Schulter, trading as Better Building Inspections and by the evidence of Mr Christopher Carroll. (b) the proximity of 2 large gum trees causing minor to significant displacement of a portion of the fence. The report of Mr Sowden supports this. 5 Factors under Section 74 include for example, whether anything other than the tree has contributed to the damage alleged. Factors in Section 75 include for example, any steps taken by the tree keeper or neighbour to prevent or minimize the interference, and whether the tree existed before the neighbour acquired the land. 6 Tree Assessment Report dated 10 November, 2012, paragraph 2.3.4 and paragraph 3.10 -- 3 of 5 -- 4 (c) damage caused through the operation of a bobcat by workmen engaged by Mrs Eager to remove debris build up. (d) Damage caused by a tree remover engaged by Mrs Eager. [14] Mrs Eager strongly disputes both the alleged causes and extent of damage to the fence. She says that the fence is about 30 years old and has deteriorated through wear and tear. She says that a couple of palings were dislodged by a fallen branch and that she had offered to nail the palings back on. She referred to the photos attached to Mr Sowden’s report showing the fence in reasonable repair. [15] There appear to be multiple possible causes of the current state of repair of the fence, including normal wear and tear over the course of 30 years or so. [16] The trees which were hard up against the fence and which caused displacement affect only a portion of the fence, not the whole or majority of the fence. Mr Carroll’s case is also that some of the damage has been caused by workmen engaged by Mrs Eager and by the removal of a fence post. These cannot be attributed to the trees. [17] I am therefore not satisfied that serious damage has been caused to the fence by the trees. Is there substantial, ongoing and unreasonable interference with Mr Carroll’s use and enjoyment of his property? [18] Mr Carroll says that the large amounts of leaf and branch and bark litter has caused and is causing substantial, ongoing and unreasonable interference with his use and enjoyment of his land. [19] He is a proud homeowner and says that in summer he can collect up to 11-13 garbage bags of debris a week. He constantly has to wash his patio and concrete. His son travels from interstate twice a year to clean the gutters. The falling leaves and debris interfere with the use of his front yard for parking of visitors’ vehicles. [20] Mr Sowden’s report and accompanying photos show the extent of the canopy and its density. There is significant overhang into Mr Carroll’s yard of between 3 and 8 metres. Mr Sowden’s report refers to the “large amounts of accumulated leaf and branch debris” that originated from the trees and which was present at the time of his inspection. [21] There is no doubt that the tree debris causes serious concern and frustration to Mr Carroll. It is also true that tall gum trees with broad canopies may not be the best choice for suburban gardens. [22] However, the question is whether there has been a substantial, ongoing and unreasonable interference with Mr Carroll’s use and enjoyment of his property. -- 4 of 5 -- 5 [23] Some guidance is given by previous QCAT decisions7 and by the Appeal Court decision of Graham & Ors v Welsh.8 These cases acknowledge the aesthetic and ecological importance of trees to our urban landscape. [24] In the QCAT decision of Thomsen v White, Senior Member Stilgoe noted that the Queensland Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 was based in part on the New South Wales Trees (Disputes Between Neighbours) Act 2006. Section 7 of that Act says: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. [25] The New South Wales Land and Environment Court had determined that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, and urban tree. The Court took that view because: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. [26] Senior Member Stilgoe in following that approach noted that the argument in favour of a balance of obligations between the tree keeper and owner is even more compelling in Queensland as the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 requires “serious damage” or a “substantial, ongoing and unreasonable interference”. [27] I am not satisfied that the tree debris from the 4 overhanging trees constitute a substantial, ongoing and unreasonable interference with Mr Carroll’s use and enjoyment of his land Decision [28] The application is dismissed. 7 Wallace v Keg [2012] QCAT 466; Edmonds v Yeates and Anor [2013] QCAT 007; Thomsen v White [2012] QCAT 381. 8 Graham & Ors v Welsh [2012] QCA 282. -- 5 of 5 --