Belcher & Anor v Sullivan & Anor [2013] QCAT 147

CITATION: Belcher & Anor v Sullivan & Anor [2013] QCAT 147 PARTIES: James Belcher and Sandra Belcher (Applicant) v Brian Sullivan and Barbara Sullivan (Respondent) APPLICATION NUMBER: NDR101-12 MATTER TYPE: Neighbourhood Disputes HEARING DATE: 13 February 2013 HEARD AT: Brisbane DECISION OF: Sandra Deane, Member DELIVERED ON: 13 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Tree Dispute – where alleged interference of tree roots with driveway – whether land affected by tree – whether serious damage to land or any property on the land, or substantial on- going and unreasonable interference Neighbourhood Disputes Resolution Act 2011 ss 46, 47, 52, 61, 65, 66, 68, 71 APPEARANCES and REPRESENTATION (if any): APPLICANT: In person RESPONDENT: In person REASONS FOR DECISION (ORAL) [1] This is a decision in the matter of James Belcher and Sandra Belcher against Brian Sullivan and Barbara Sullivan. The matter is NDR101 -12. [2] At the time the application commenced, it is not disputed that Mr and Mrs Sullivan had a Delonix Regia (more commonly referred to as a Poinciana, -- 1 of 6 -- 2 which I refer to as “the tree”) in their yard, situated near the common boundary with Mr and Mrs Belcher’s property. [3] The base of the tree trunk was situated wholly or mainly on their land as contemplated by s 47 of the Neighbourhood Disputes Resolution Act 2011, (which I will refer to as “the Act.”) [4] Mr and Mrs Belcher applied to have the tree pruned, and a cement wall installed to prevent roots from encroaching on their land and claimed compensation for damage alleged to have been caused by the tree to their driveway. [5] Since the application commenced, Mr and Mrs Sullivan removed the tree. [6] Section 52 of the Act provides that the owner of the land on which a tree is situated (referred to as “the tree-keeper”) is responsible for ensuring that the tree doesn’t cause serious injury, serious damage to land or property, or substantial on-going and unreasonable interference with the neighbours’ use and enjoyment of the land. [7] Section 61 of the Act gives the Tribunal power to resolve disputes where a neighbour’s land is affected by a tree at the date the application was lodged. [8] Section 66 of the Act gives broad powers to the Tribunal to make an order about a tree to remedy serious damage to the neighbour’s land or any property on the land, or substantial on-going and unreasonable interference with the neighbour’s use and enjoyment of the land. [9] Section 68 of the Act makes it clear that the Tribunal may make an order under s 66 even if the tree has been completely removed. [10] Section 65 of the Act sets out certain requirements before the Tribunal is empowered to make an order. These include that the Tribunal must be satisfied that the neighbour made a reasonable effort to reach agreement with the tree-keeper. [11] There is evidence before the Tribunal that the parties took steps to attempt to resolve the dispute. I am satisfied that the pre-conditions in s 65 have been satisfied. [12] Division 4 of the Act sets out matters for consideration. Section 71 provides that the primary consideration is the safety of any person. [13] Other matters to consider include whether anything other than the tree has contributed or is contributing to the injury, damage or interference, any step taken by the tree-keeper or neighbour to prevent or rectify the injury or damage or prevent or minimise interference, whether the tree existed before the neighbour acquired the land. [14] Section 46 of the Act relevantly provides that land is affected by a tree if the land adjoins the tree-keeper’s land and the branches overhang the -- 2 of 6 -- 3 land, or the tree has caused, is causing or is likely to cause within the next 12 months a serious injury to a person on the land, or (b) serious damage to the land and property on the land, or (c) substantial on-going and unreasonable interference with the neighbour’s use and enjoyment of the land. [15] So a question that I must determine is whether the branches overhang the land. Mr and Mrs Belcher claim that the branches were overhanging their land by 50 cm or more from the common boundary, interfering with their ability to drive their motor home on the driveway. Mr and Mrs Sullivan dispute this, and provided a series of photographs from 2009 to 2012. [16] The application was commenced in mid-May 2012. Two of the photographs are date-stamped “9 May 2012” and “19 June 2012.” They do not appear to support the Belchers’ contention that the branches were overhanging their land by more than 50cm and interfering with their ability to drive their motor home on the driveway. [17] The photograph of the tree and driveway attached to the application also does not appear to support the contention that the branches were overhanging their land for more than 50cm and interfering with their ability to drive their motor home on the driveway. [18] Mrs Belcher contends this is because they regularly prune the tree on their side of the fence. [19] An arborist appointed by the Tribunal provided a report dated 2 October 2012. He reported that there was no significant tree limb overhang and the pruned limbs were not consistent with limbs of sufficient size to have been spreading over the driveway as claimed. [20] Mr and Mrs Belcher are the Applicants. They are required to prove their case on the balance of probabilities. I am not satisfied that this ground is made out to the required standard. [21] The next question I am required to decide is: is the tree causing serious damage to Mr and Mrs Belcher’s land or property on their land; or is the tree causing substantial and ongoing interference with Mr and Mrs Belcher’s use and enjoyment of their land? [22] Mr and Mrs Belcher claimed that there is damage to the driveway which affects their car tyres, in that the driveway has lifted and cracked due to encroaching roots under the driveway. [23] It is necessary to consider whether the tree is causing serious damage to the driveway or to the tyres. [24] In the arborist’s report, he reported that: - the tree was approximately 20 years old. -- 3 of 6 -- 4 - There were a number of areas of the driveway with crazing and cracks, which is a condition of aged concrete. The estimated age of the driveway is 20 years. The driveway did not appear to be reinforced. -Area A is approximately 6.5m from the trunk of the tree, had a crack. An edge was raised approximately 3mm and a root from the tree of approximately 60mm diameter was partly visible in this vicinity. Other roots are also present near this tree’s root, which appears to be from trees planted in the Belcher’s garden bed. -Small cracks and crazing left untreated permit water to pass through to ground below, allowing roots to take advantage of the moisture. The tree is not likely to be responsible for the crack itself, which is most likely the progression of a hairline crazing, moving to a crack as more water seeped through. - Area B had a similar crack, but there was no lifting at that stage. Area C is more than 15m from the tree. It had cracks. Excavation in the vicinity reveals more roots of unknown origin, which would not have caused such damage. - The tree is not responsible for this cracking. -There are garden beds on either side of the driveway. A number of trees are planted in those beds. Four or five of those trees were considered equally likely to have roots taking advantage of the cracking of the driveway. [25] The Belchers provided evidence from an engineer, Mr Walbran. In his report he states that: - in Slab 5 there is one transverse crack with up to 20mm displacement. The displacement tapers to being insignificant. A large tree root, said to be approximately 80mm in diameter, and a smaller tree root, were located in the vicinity of this crack. - Cracking is more noticeable where contraction joints were installed at spacings of more than 4m. - Grinding to level the uplift will reduce the thickness of the concrete, resulting in a local weakness, which is likely to result in further cracking. - Cracking in Slab 6 and 7 can be attributed, at least in part, to normal shrinkage cracks. Cracking in Slab 7 is unlikely to be caused by the tree. Whether tree roots from either the Belchers’ or the Sullivans’ trees are causing cracking in Slab 6 is unclear. A motor home is not likely to cause distress on such a driveway. -- 4 of 6 -- 5 - If the driveway is to be replaced, then the minimum area for replacement is an area between contraction joints. [26] On the balance of probabilities, the tree caused or contributed to the lifting of the Slab in Area A, which appears to be the same as the area described as Slab 5. [27] I am not satisfied that a tapered edge varyingly lifted 20mm to insignificant, if I accepted the engineer’s evidence, is sufficient to constitute serious damage. I am also not satisfied that such damage constitutes substantial ongoing and unreasonable interference, because I am not satisfied that the nature of the interference is substantial. [28] Mr and Mrs Belcher claimed that there is damage to the driveway which affects their car tyres, in that the driveway is lifted and cracked due to encroaching roots under the driveway. [29] No evidence of damaged tyres has been provided in the form of photographic or expert evidence, or in the nature of invoices for replacement or repairs to tyres. I am not satisfied that such damage to tyres constitutes serious damage. [30] I therefore find that the land is not affected by the tree. [31] Mrs Belcher gave evidence that in recent months the cracking in Area B has lifted so that it is now raised. No photographic evidence was provided, nor was evidence from an arborist or engineer provided. Mrs Belcher contends that a tree in the Sullivan’s yard is proximate to this crack, and asserts that the land is affected by this tree. [32] Mr and Mrs Belcher said that they were not sure how large the lifting was, but indicated a height of about a centimetre. On the evidence before the Tribunal, I am not satisfied on the balance of probabilities that this tree is causing the lifting, and in any event, I am not satisfied that such lifting constitutes serious damage or substantial interference. I therefore find that the land is not affected by the tree said to be a stump sprouting branches. [33] Mr and Mrs Belcher also gave evidence that there was another tree remnant on the Sullivans’ land which they believe was white ant infested, which is proximate to their land. When questioned by the Tribunal, Mrs Belcher gave evidence that she was not sure if the infestation was current or whether the white ants might affect the Belchers’ land. No expert evidence was provided on this matter. [34] I am not satisfied that there is sufficient evidence to find this tree is affecting the land, as there is insufficient evidence to find that the tree is causing or is likely to cause serious damage. [35] Accordingly, there is insufficient evidence to find that any of these trees is affecting the land in accordance with the Act. -- 5 of 6 -- 6 [36] I note that the Arborist suggests that the Belchers’ problem with the driveway can be remedied by grinding back the crack where the concrete was raised. This would remove the tripping hazard, in the arborist’s view. [37] The engineer suggests replacement of at least parts of the slab. Mr and Mrs Belcher have provided no evidence as to the cost of the replacement of the slab or parts thereof. Even if I was persuaded that the land was affected by a tree in order to found the Tribunal’s jurisdiction, there is no evidence upon which to make a finding as to compensation. [38] The application is dismissed. -- 6 of 6 --