Bunyard & Anor v McManus [2013] QCAT 258

CITATION: Bunyard & Anor v McManus [2013] QCAT 258 PARTIES: Raymond Arthur Bunyard Beverly Anne Bunyard (Applicants) v Joan McManus (Respondent) APPLICATION NUMBER: NDR115-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 15 May 2013 HEARD AT: Brisbane DECISION OF: Bevan Hughes, Member DELIVERED ON: 15 May 2013 DELIVERED AT: Maroochydore ORDERS MADE: 1. Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the pruning of the Blackbutt tree described as Tree 1 in the arborist report to: a. completely remove the lowest lateral limb on the northern side of the trunk that extends over the property of Raymond Arthur Bunyard and Beverley Anne Bunyard back to its main trunk junction; b. prune the remaining canopy to behind the alignment of the rear (northern) fence line of 80 Karawatha Drive, Mountain Creek; and c. remove all accessible deadwoods greater than 25 millimetres in diameter throughout the remaining canopy. 2. Joan McManus, the registered -- 1 of 8 -- 2 proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the removal of the Blackbutt tree described as Tree 3 in the arborist report. 3. The pruning works are to comply with the requirements of Australian Standard 4373-2007 Pruning of amenity trees. 4. All works are to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. 5. All works are to be at the cost of Joan McManus. 6. All works are to be completed within 90 days of this order. CATCHWORDS: TREE DISPUTE – likely to cause serious injury or damage – location – trunk and canopy - likely to cause substantial, ongoing and unreasonable interference – leaves and flowers Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Edmonds v Yeates & Anor [2013] QCAT 7 Graham & Ors v Welch [2012] QCA 282 McDonald v Henry [2013] QCAT 87 Thomsen v White [2012] QCAT 2012 381 Wallace v Keg [2012] QCAT 466 APPEARANCES and REPRESENTATION (if any): APPLICANT: Raymond Arthur Bunyard in person Beverley Anne Bunyard in person RESPONDENT: Joan McManus in person Kerry McManus in person REASONS FOR DECISION What is this Application about? [1] Raymond and Beverley Bunyard want their neighbour’s trees removed or at least cut to fence height. -- 2 of 8 -- 3 [2] Their concerns are that: the trees overhang their property by at least five metres; possible damage could be caused by severe weather conditions; deadfall has caused “considerable damage” to their shed roof, stained the pavers in their backyard, blocked their guttering and fallen in their pool; and pollen from flowers is restricting their use of the pool causing an allergic reaction. [3] Mrs Joan McManus admits she is the registered proprietor of 80 Karawatha Drive, Mountain Creek and Mr and Mrs Bunyard’s neighbour. Mrs McManus is a “tree keeper” as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act). [4] Tree 1 of the application is a Eucalyptus pilularis (Blackbutt), Tree 2 is an Acacia (Wattle), Tree 3 is another Eucalyptus pilularis (Blackbutt) and Tree 4 is a Corymbia intermedia (Pink Bloodwood). Does the Tribunal have jurisdiction? [5] Having considered s 42 of the Act, the Tribunal is satisfied that Chapter 3 applies to the trees. [6] The Tribunal is precluded from making any orders in relation to a tree under Chapter 3 of the Act unless the requirements of s 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under s 66 of the Act. [7] As a precondition to the Tribunal’s jurisdiction, Mr and Mrs Bunyard have corresponded with Mrs McManus in an endeavour to resolve the matter, before applying to the Tribunal.1 What does the Tribunal consider? [8] Section 73 of the Act requires the Tribunal to consider various matters. [9] Because the likelihood of serious damage is alleged, the Tribunal may also consider s 74 of the Act. [10] Because unreasonable interference is alleged, the Tribunal may also consider s 75 of the Act. [11] Where an issue has been particularly relevant, or has weighed heavily in the Tribunal considering the matter, they are referred to specifically below. Are the trees likely to cause within the next 12 months serious injury or damage to Mr and Mrs Bunyard’s land or property on their land? [12] Mr and Mrs Bunyard claim that the trees have caused “considerable damage to our shed roof”, “severe staining of our pavers in (the) back 1 Letter Raymond and Beverley Bunyard to Joan McManus dated 15 November 2011. -- 3 of 8 -- 4 yard” and “possible damage could be caused from severe weather conditions”. [13] The only damage to the shed claimed by Mr and Mrs Bunyard is blocked guttering. I do not consider this or the staining of the pavers amounts to “serious damage”. This is because they are the result of the “natural incidence of a suburban landscape that includes trees”.2 [14] In his report of 14 October 2012, the arborist reported that:3 Given that the trees the subject to this application are typical and healthy examples of their respective species and that they form the northern edge of a group of trees it is possible but highly unlikely that severe weather events would result in damage … [15] Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of “likely” is probably or reasonably to be believed or expected. The arborist report merely refers to “possible”. By itself, I am not satisfied that this is sufficient to meet the threshold of “likely”.4 [16] However, that does not end the issue. Section 73 establishes general matters that I must consider, including the location of the trees in relation to the boundary and any premises, fence or other structure affected by the location of the trees.5 The matters prescribed by s 73 do not suggest that each matter must be given equal weight, but balanced.6 [17] None of the trees is closer than two metres from the dividing fence and shed. However, Mr and Mrs Bunyard claim that the “radius point of danger” of the trees encompasses their shed and pool – at least twelve metres into their property.7 They claim that if the trees fell, they would impact up to midway into their house, including into their bedroom and dining room. On behalf of Mrs McManus, Mr McManus stated that the branches are “high, thin and spindly”. [18] The arborist report notes that the canopy of the two Blackbutt trees spread over Mr and Mrs Bunyard’s property by eight metres and six metres.8 [19] The report also notes “high rotational forces being applied to the attachment point of elongated lateral limb” to the first Blackbutt (Tree 1).9 2 Edmonds v Yeates [2013] QCAT 7 applying Graham & Ors v Welch [2012] QCA 282; other examples include Thomsen v White [2012] QCAT 381 and Wallace v Keg [2012] QCAT [2012] QCAT 466. 3 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [3.2.1]. 4 McDonald v Henry [2013] QCAT 87 at [15]. 5 Section 73(1)(a) of the Act. 6 McDonald v Henry [2013] QCAT 87 at [16] – [17]. 7 See diagram attached to Application filed 18 June 2012. 8 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [2.2.2] and [2.2.4]. 9 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [3.5]. -- 4 of 8 -- 5 This means that failure is likely to cause “considerable damage to the applicant’s garden structures and the dividing fence…”.10 [20] The report also notes that the limbs of the second Blackbutt (Tree 3) are asymmetrical and its canopy is formed predominantly on the northern side of the leaning trunk, causing multiple lateral limbs to extend over Mr and Mrs Bunyard’s property.11 [21] This means that the limbs from the first Blackbutt tree hang over the shed, while the limbs from the second Blackbutt tree hang over Mr and Mrs Bunyard’s yard towards their pool area. Mr and Mrs Bunyard stated that they frequently use this area and normally lunch there. [22] Each Blackbutt tree is 30 to 40 metres high.12 [23] The primary concern is the safety of any person.13 Upon considering all these matters, I am satisfied that the two Blackbutt trees are likely to cause serious injury or damage because of:  The rotational forces being applied to the first Blackbutt and the asymmetrical growth of the second Blackbutt causing a leaning effect onto Mr and Mrs Bunyard’s property;  The height of both trees increasing the impact of any falling limbs;  The first Blackbutt tree’s proximity to Mr and Mrs Bunyard’s shed, garden structures and the dividing fence; and  The second Blackbutt tree’s canopy extending over the part of Mr and Mrs Bunyard’s yard they frequently use. [24] I am therefore satisfied that an order is necessary for the two Blackbutt trees to prevent serious injury or damage to Mr and Mrs Bunyard’s land or property. [25] The Arborist report also notes the “poor structure” of the Wattle (Tree 2) and that “past pruning will likely cause the death of this tree”.14 However, the tree is a bare trunk only and therefore has no canopy. [26] The Arborist report is also silent on the Wattle’s life expectancy. [27] I therefore do not consider there to be sufficient evidence to suggest that the Wattle is causing or likely to cause within the next 12 months serious injury or damage. In any event, Mr and Mrs Bunyard conceded during the hearing that the Wattle does not cause them concern. 10 Ibid. 11 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [2.2.4]. 12 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [2.2.2] and [2.2.4]. 13 Section 71of the Act. 14 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [3.7]. -- 5 of 8 -- 6 [28] The Pink Bloodwood’s (Tree 4) canopy extends only two metres onto Mr and Mrs Bunyard’s property and comprises only “several small limbs (that) extend over the applicant’s property from high”.15 [29] The Pink Bloodwood’s canopy does not extend as far as the shed or the pool. During the hearing, Mr and Mrs Bunyard conceded that although this tree overhangs the property line, it only overhangs the pool “a bit”. [30] Given the small distance and the size of the limbs, I do not consider the Pink Bloodwood is causing or likely to cause within the next 12 months serious injury or damage. Are the trees causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with Mr and Mrs Bunyard’s use and enjoyment of their land? [31] Mr and Mrs Bunyard also claim that the trees cause substantial, ongoing and unreasonable interference with their use and enjoyment of their land by: excessive leaf fall blocking their guttering and staining their patio; and pollen from flowers restricting their pool use “due to allergic reaction”. [32] The arborist report notes large amounts of accumulated tree debris “within the rear yard surface, on the roof of several garden structures and within the applicant’s pool area.”16 [33] This issue has previously been considered in a number of decisions by the Tribunal.17 The Tribunal’s approach follows that of the Court of Appeal: This Tribunal has 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, an urban tree. That approach is consistent with a recent decision of the Court of Appeal in Graham & Ors v Welch.18 [34] Section 75 of the Act prescribes other matters that the Tribunal may consider, including whether the tree existed before the neighbour acquired the land.19 The arborist report notes that the trees “are in excess of 25 years old”.20 [35] Mr and Mrs Bunyard purchased their property in 2010. Further, Mr and Mrs Bunyard did not construct their pool until two months after they bought their property. [36] Integrating the Tribunal’s approach to the dropping of debris with Mr and Mrs Bunyard’s awareness of the trees when they purchased their property, 15 Ibid. 16 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [2.2.8]. 17 Thomsen v White [2012] QCAT 381, Wallace v Keg [2012] QCAT 466. 18 Edmonds v Yeates [2013] QCAT 7 at [9]. 19 Section 75(d) of the Act. 20 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [2.3.4]. -- 6 of 8 -- 7 I am satisfied that Mr and Mrs Bunyard impliedly consented to the dropping of leaves and flowers. [37] Mr and Mrs Bunyard also knew the trees dropped the leaves and flowers when they constructed the pool. They therefore accept the leaves and flowers as part of the “natural incidence” to which they impliedly consent when “living in suburban landscape that includes trees”.21 [38] I therefore consider the dropping of the leaves and flowers do not constitute a substantial, ongoing and unreasonable interference. What are the appropriate orders? [39] Because I have not made any adverse findings about the Wattle (Tree 2) or the Pink Bloodwood (Tree 4), no orders are necessary for those trees. [40] Because I have found that the two Blackbutt trees are likely to cause serious injury or damage to the neighbouring land, I may make an order to remedy, restrain or prevent serious injury or damage to Mr and Mrs Bunyard’s land.22 [41] When considering orders that are appropriate, the Tribunal is guided by the requirement that ‘a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved’.23 However, this is subject to the requirement that the primary consideration is the safety of any person.24 [42] The arborist proposed pruning the first Blackbutt tree and removing the second Blackbutt tree.25 I accept the arborist’s evidence that pruning the first Blackbutt tree as recommended is sufficient to address its risk of causing injury or damage. [43] Based on the arborist’s evidence that pruning the second Blackbutt tree would not benefit the tree and would cause “stress induced regrowth that is weakly attached”,26 I am satisfied that there is no other option than to remove the second Blackbutt tree to address the likelihood of it causing injury or damage. [44] A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.27 I am satisfied that because Mrs McManus is the tree- keeper, it is appropriate that Mrs McManus be responsible for the costs of and incidental to pruning the first Blackbutt tree and removing the second Blackbutt tree. 21 Edmonds v Yeates [2013] QCAT 7 at [9]. 22 Section 66(2)(b)(i) of the Act. 23 Section 72 of the Act. 24 Section 71 of the Act. 25 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [4.3.1] and [4.3.3]. 26 Tree Assessment Report of Michael Sowden dated 14 October 2012 at [3.8.1]. 27 Section 41 of the Act. -- 7 of 8 -- 8 Orders [45] For these reasons, the Tribunal orders that: 1. Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the pruning of the Blackbutt tree described as Tree 1 in the arborist report to: (a) completely remove the lowest lateral limb on the northern side of the trunk that extends over the property of Raymond Arthur Bunyard and Beverley Anne Bunyard back to its main trunk junction; (b) prune the remaining canopy to behind the alignment of the rear (northern) fence line of 80 Karawatha Drive, Mountain Creek; and (c) remove all accessible deadwoods greater than 25 millimetres in diameter throughout the remaining canopy. 2. Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the removal of the Blackbutt tree described as Tree 3 in the arborist report. 3. The pruning works are to comply with the requirements of Australian Standard 4373-2007 Pruning of amenity trees. 4. All works are to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. 5. All works are to be at the cost of Joan McManus. 6. All works are to be completed within 90 days of this order. -- 8 of 8 --