Anderson v Mabb [2013] QCAT 85

CITATION: Anderson v Mabb [2013] QCAT 85 PARTIES: Mrs Michelle Anderson v Mr Jeff Mabb APPLICATION NUMBER: NDR068-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 19 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The registered owner of the lot at 8 Leo Street MOUNT ISA QLD 4825 (“the Tree-Keeper”) arrange to have the following works carried out on the trees the subject of the dispute (“the Initial Works”): a. Canopy reduction to remove overhanging branches of the front Fiddlewood tree to give a two (2) metre clearance from the gutter line/roofline of the dwelling located on 6 Leo Street MOUNT ISA QLD 4825 (“the Neighbour”). b. Canopy reduction to remove overhanging branches of the Kaffir Plum tree to give a two (2) metre clearance from the gutter line/roofline of the Neighbour’s dwelling. 2. The Tree-Keeper arrange to carry out on going maintenance on the trees the subject of the dispute by inspecting and pruning every two (2) years (“the Subsequent Works”). 3. The Initial Works and Subsequent Works be carried out by an appropriately insured arborist with a minimum of Australian Qualifications -- 1 of 5 -- 2 Framework level 3 in Arboriculture. 4. The Initial Works to be completed within 60 days of the date of this decision. CATCHWORDS: TREES – where trees overhang roof – where leaf litter – where bat droppings – where fruit attracts bees – where reduced sunlight inhibits grass growth – where bare soil not recommended – whether substantial ongoing and unreasonable interference to land Neighbourhood Dispute Resolution Act 2011 ss 66, 72 Graham & Ors v Welch [2012] QCA 282 Thomsen v White [2012] QCAT 381 Wallace v Keg [2012] QCAT466 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) REASONS FOR DECISION [1] Two fiddlewood trees and one plum tree grow on Mr Mabb’s land in Mt Isa, close to the boundary of Mrs Anderson’s land. Mrs Anderson says that the trees overhang the boundary. She complains that the trees are messy, block sunlight to her yard and that plum tree roots are invading her yard. [2] Mr Mabb has not filed any material with the tribunal in this dispute. Because he has failed to engage in the process, I vacated the hearing listed for 7 March 2013 and ordered that the Mrs Anderson’s application be determined on the papers. [3] Mr Mabb’s failure to respond does not necessarily mean that Mrs Anderson is entitled to all that she wants. I can only make an order about a tree to remedy, restrain or prevent serious damage to Mrs Anderson’s land or any property on her land or to remedy, restrain or prevent substantial ongoing and unreasonable interference with Mrs Anderson’s use and enjoyment of his land1. If I decided that the trees are interfering with Mrs Anderson’s land in this way, I must decide what should be done about the tree and who should pay for any work to the trees. I should not make an order to remove a living tree unless the issues cannot be resolved in some other way2. 1 Neighbourhood Dispute Resolution Act 2011, s 66. 2 Ibid, s 72. -- 2 of 5 -- 3 Serious damage? [4] Mrs Anderson says that leaves from the fiddlewood clog her gutters (despite gutter guard), choke her garden beds and cover her lawns every September/October. She says that the leaves create an enormous amount of work, and inhibit the growth of grass. Mrs Anderson has two young children and she is trying to cover the soil with grass because of the lead content in Mt Isa soil. Mrs Anderson provided photographs showing leaf litter. [5] Mrs Anderson says that the fiddlewood flowers blow onto her veranda, which creates more cleaning work. The flowers attract bees, and Mrs Anderson is concerned when her children play near the fiddlewoods in case they are stung. [6] She says the fiddlewood branches are flimsy and weak, and come down easily in a storm. Finally, Mrs Anderson says that the fiddlewoods were showing signs of a mealy bug infestation which creates a sticky residue, sooty mould and has transferred to her own plants. [7] As to the plum tree, Mrs Anderson is concerned about leaf drop and the mess created by the fruit. She says the plums stain her house walls, roof and footpath. They collect and rot in her gutters, attract bats, flies and fruit flies. When the plums have rotted, Mrs Anderson has to contend with the seeds. She says she has to rake them off the grass, they have a tendency to sprout and they create a slip hazard. [8] Mrs Anderson says that all three trees block sunlight to the garden. She has plans to install solar panels but is concerned that the trees will affect their efficiency. She wants to install a shade sail along the eastern side of the house but she is concerned that the trees will stain the shade sail. She has plans to concrete along the eastern side of the house but she is concerned that the plum tree roots will damage the concrete as, she says, it has damaged existing concrete. She is concerned that the roots will invade the sewerage system. [9] Mr Cockram, an arborist appointed by the Tribunal, provided a report3 based on an off-site assessment of the trees. He does not think the trees are likely to fail within the next twelve months. He notes the damaged concrete but suggests that Mrs Anderson needs to verify a direct link between that damage and the plum tree roots. [10] There is no evidence that the trees are causing damage to the concrete path. Although Mrs Anderson is concerned, she has provided no evidence that the trees are affecting her sewerage system. She has provided photos of tree roots in her yard but that is not enough. I am not satisfied that the trees are causing serious damage to Mrs Anderson’s land or any property on her land. 3 Received 10 September 2012. -- 3 of 5 -- 4 Unreasonable interference? [11] The tribunal has determined4 that leaf litter alone is not a substantial ongoing and unreasonable interference with land. Mrs Anderson’s photos confirm that there is a lot of leaf litter from these trees. That is not enough to persuade me that the trees are a substantial ongoing and unreasonable interference to Mrs Anderson’s land. [12] Similarly, the fact that a tree may attract and provide habitat to an animal, bird or insect does not mean that any damage caused by such an animal, bird or insect is caused by the tree which provides that habitat5. I accept that the plum tree attracts bats and bees and that this concerns Mrs Anderson. Again, that fact is not enough to persuade me that the trees are a substantial ongoing and unreasonable interference to the land. [13] Mr Cockram notes that the fiddlewood at the front of Mr Mabb’s land and the plum tree overhand Mrs Anderson’s land and roof. His view is that the overhang is likely to cause ongoing and unreasonable interference with Mrs Anderson’s land because it will require ongoing and regular gutter cleaning. [14] Mrs Anderson’s photos do show that the front fiddlewood and the plum tree both overhang the roof by a considerable margin. The eastern side of the land appears to be in heavy shade for most of the day and I accept that it is important to maximise grass cover because of the soil content of Mt Isa. I am satisfied that these factors do create a substantial ongoing and unreasonable interference to Mrs Anderson’s land. What is the appropriate remedy? [15] Mrs Anderson wants the trees removed. [16] Mr Cockram recommends works to reduce the canopy of the front fiddlewood and the plum tree, remove the branches overhanging the roof line and provide a two metre clearance. [17] I accept Mr Cockram’s recommendations. The proposed works will reduce, or eliminate, the amount of plums that will drop into Mrs Anderson’s yard, will reduce the amount of leave dropping directly into Mrs Anderson’s gutters and will introduce sunlight into the eastern side of her yard. At the same time, the trees will act as a privacy screen between the two properties and will provide Mr Mabb with a barrier to the western sun. [18] Mrs Anderson must accept that she will still experience some leaf litter, flowers, fruit and, perhaps, bat dropping. It is6: not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or 4 Thomsen v White [2012] QCAT 381 at [12]; Wallace v Keg [2012] QCAT466 at [17]. 5 Thomsen v White at [13] – [14]. 6 Graham & Ors v Welch [2012] QCA 282 at [24]. -- 4 of 5 -- 5 many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods. [19] I find that it is not necessary to remove the trees to resolve the issues. [20] The registered owner of the lot at 8 Leo Street MOUNT ISA QLD 4825 (“the Tree-Keeper”) arrange to have the following works carried out on the trees the subject of the dispute (“the Initial Works”): a) Canopy reduction to remove overhanging branches of the front Fiddlewood tree to give a two (2) metre clearance from the gutter line/roofline of the dwelling located on 6 Leo Street MOUNT ISA QLD 4825 (“the Neighbour”). b) Canopy reduction to remove overhanging branches of the Kaffir Plum tree to give a two (2) metre clearance from the gutter line/roofline of the Neighbour’s dwelling. [21] The Tree-Keeper arrange to carry out on going maintenance on the trees the subject of the dispute by inspecting and pruning every two (2) years (“the Subsequent Works”). [22] The Initial Works and Subsequent Works be carried out by an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture. [23] The Initial Works to be completed within 60 days of the date of this decision. -- 5 of 5 --