Belcher v Sullivan [2013] QCATA 304

CITATION: Belcher v Sullivan [2013] QCATA 304 PARTIES: James Belcher Sandra Belcher (Applicants) v Brian Sullivan Barbara Sullivan (Respondents) APPLICATION NUMBER: APL116-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: K S Dodds, Judicial Member DELIVERED ON: 23 October 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREE DISPUTE – where roots from trees on respondents‟ property causing or contributing to cracking and uplifting of concrete on applicants‟ driveway – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents‟ trees be pruned as well as the cost of rectifying the damage caused by the roots to the driveway – where Tribunal dismissed applicants‟ claim – where applicants seek to appeal that decision – whether applicants‟ land affected by respondents‟ tree – whether roots of trees on respondents‟ property causing serious damage -- 1 of 6 -- 2 or substantial interference – whether Tribunal erred in dismissing applicants‟ claim – whether leave to appeal should be granted Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46, 59, 60, 61, 66, 68, 69 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. REASONS FOR DECISION [1] In mid-May 2012 Mr and Mrs Belcher (the applicants) brought an application in the Queensland Civil and Administrative Tribunal (QCAT) for a tree dispute under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. On 13 February 2013 the application was dismissed by the Tribunal. [2] The matter before me is an application for leave to appeal or appeal that decision. The Dispute [3] The applicants and respondents reside on adjoining blocks of land. The offending tree was a Poinciana growing in the respondents‟ block adjacent to a common fence between the properties. [4] The applicants‟ complaint to the Tribunal was twofold:  the tree‟s branches overhung the common fence leading to the elderly applicants having to purchase a ladder and extendable chainsaw to trim them. Untrimmed, the branches would hit their motor home as it was driven up their driveway;  roots from the tree caused cracking to their cement driveway. A portion of the driveway had lifted creating a raised edge. This caused damage to their motor vehicle tyres and was a tripping hazard. [5] The applicants sought orders requiring pruning of the tree on their side of the fence as well as the cost of repair/replacement of the damaged driveway, the removal of the tree‟s roots from their land and for the construction of a cement wall on the respondents‟ land to prevent tree roots from continuing to enter the applicants‟ land. [6] Since the application to QCAT the respondents have had the tree removed. -- 2 of 6 -- 3 [7] The evidence before the Tribunal came in the form of statements from the applicants and the respondents, from an arborist arranged by QCAT to inspect and report, and a civil engineer engaged by the applicants. The Application for Leave to Appeal or Appeal [8] The grounds of appeal and the orders sought on any appeal may be summarised from a two page attachment to the application. They seem to be:  the Tribunal was in error in accepting the evidence it did in concluding that the applicants had not shown that branches of the tree overhung the fence so that the applicants‟ land was “affected” by the tree as that term is used in the Act;  the Tribunal was in error in concluding that the applicant had not shown that the roots of the tree damaging their concrete driveway resulted in their land being “affected” by the tree as that term is used in the Act. [9] In addition there were assertions, again, that the applicants had to purchase a chainsaw on an extendable arm and a ladder to trim the tree on their side of the fence, to damage to the tyres of their motor vehicle/s caused by a portion of their cement driveway being uplifted by a root from the tree and to the need for repair to or replacement of the damaged portion of their driveway. The Act [10] QCAT‟s jurisdiction to make orders under the Act arises when a neighbour‟s land (here the applicants‟ land) is “affected” by a tree on the tree-keeper‟s land (here the respondents‟ land) and the neighbour cannot resolve the issue under Part 4, Chapter 3 of the Act.1 In that case QCAT is empowered to make orders which are set out in the Act.2 Orders may be made even if the tree has been completely removed.3 [11] Pursuant to the Act the applicants‟ land is “affected” by a tree if:  branches from the tree in the respondents‟ land overhung their land or,  the tree has caused, is causing or is likely within the next 12 months to cause either serious injury to a person on the applicants‟ land; serious damage to the applicants‟ land or any property on it; or substantial on-going and unreasonable interference with the applicants‟ use and enjoyment of their land.4 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 59, 60, 61. 2 Ibid ss 66, 69. 3 Ibid s 68. 4 Ibid s 46. -- 3 of 6 -- 4 The Tribunal’s Decision [12] The Tribunal‟s reasons for its decision show that it correctly directed itself to the relevant sections of the Act. [13] The Tribunal rejected the applicants‟ contention that the branches of the tree were overhanging their land, or causing an interference when they drove their motor home on their driveway. In doing so it had regard to photographs including aerial photographs for a period 2009 - 2012. It made reference in particular to photographs date stamped 9 May 2012 and 19 June 2012 which did not support the applicants‟ contention. It also had regard to the report of the arborist. On inspection the arborist found no significant tree limb was overhanging and that the pruned limbs on the applicant‟s side were not consistent with limbs of sufficient size to have been spreading over their driveway as claimed. [14] The Tribunal then considered whether the applicants had shown that the tree had caused serious damage to the driveway or to tyres of the applicants‟ motor vehicle/s. It referred to the applicants‟ evidence, evidence of the arborist and of the civil engineer engaged by the applicants. It concluded it was shown on the balance of probabilities that the tree had caused or contributed to the lifting of concrete in a particular area of the applicants‟ driveway. Descriptions of this by the arborist and the engineer differed. The area was described by the arborist as an edge of concrete raised approximately 3mm and a root from the tree approximately 60mm in diameter partly visible on the vicinity. Other roots were also present nearby which appeared to be from trees planted in the applicants‟ garden beds. The area was described by the engineer as a transverse crack with up the 20mm displacement at one side of the driveway tapering to insignificant at the other side. He also described a tree root approximately 80mm in diameter and a smaller tree root in the vicinity of this crack. Both witnesses gave evidence of other cracks in the concrete driveway unattributable to the tree more numerous where contraction joints were installed at spacings of more than 4 metres. The uplifted crack was in a portion of the driveway where the space between contraction joints was 7.7m. There was evidence cracks in the driveway allowed water to percolate down encouraging roots. [15] The Tribunal concluded that the lifted crack caused or contributed to by the tree, even if accepted that at one side of the driveway a portion of the driveway had lifted approximately 20mm, was not sufficient to constitute serious damage nor did it constitute on-going and unreasonable interference with the applicants‟ use and enjoyment of their land that was substantial.5 In doing so it noted that no other evidence such as photographic or expert evidence or tyre repair invoices had been provided to support the applicants‟ contention of damage to tyres caused by the crack. 5 Paragraph 27 of the Tribunal‟s reasons for its decision. -- 4 of 6 -- 5 [16] The Tribunal referred to evidence from the female applicant that in recent months cracking in another area of the driveway had lifted about 1cm. The female applicant had attributed this cracking to another tree in the respondents‟ yard. It noted that neither photographic evidence nor evidence from an arborist or engineer was provided in support of this. It found it was not satisfied that it was shown that the tree had caused any cracking to the applicant‟s driveway nor that any lifting, as asserted by the female applicant, amounted to „serious damage or substantial interference’. [17] It referred to an assertion by the applicants that another tree remnant on the respondents‟ land was white ant infested. When the female applicant was questioned about this she was uncertain the infestation was current or whether the applicants‟ land might be affected. The Tribunal noted there was no other evidence to support this assertion. It concluded there was no sufficient evidence to support any finding this tree was affecting the applicants‟ land. [18] In the final analysis the Tribunal was not satisfied on the evidence that any of the trees referred to on the respondents‟ land were “affecting” the applicants‟ land within the meaning of that term in the Act. Decision [19] In determining what evidence may be accepted or otherwise the Tribunal member who heard the matter and saw the parties has an advantage over an appeal tribunal. [20] The evidence accepted by the Tribunal was plainly sufficient to support the Tribunal‟s view that the applicants‟ property was not “affected” by the tree hanging over it. It has not been shown the Tribunal was in error in doing so. [21] As to the cracking and lifting of portions of the driveway the Tribunal considered whether, in the worst case scenario on the evidence, (the evidence of the engineer) the applicants‟ land was “affected” by the tree. It was not satisfied it was because it did not consider the crack to and the lifting in one area of the driveway was serious damage nor amounted to on-going and unreasonable interference with the applicants‟ use and enjoyment of their land which was substantial. [22] „Serious‟ is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible”. [23] „Substantial‟ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance. -- 5 of 6 -- 6 [24] Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided. [25] The evidence before the Tribunal was that the driveway was about 20 years old, was unreinforced and had some crazing and cracks in it. The only evidence of the tree being involved was that of the crack in the driveway with some lifting at one end of it. There were other roots in the vicinity of other cracking in the driveway. There were garden beds on either side of the driveway with a number of trees planted in them. The arborist considered 4 or 5 of those trees were likely to have roots taking advantage of cracking in the driveway allowing water to percolate through. [26] I am not persuaded the conclusion of the Tribunal was in error. The evidence was such that a conclusion that it was not shown serious damage had been done to the applicants‟ property or that substantial on- going and unreasonable interference with the applicant‟s use of their property was occurring was open according to the view the Tribunal took of all the evidence. [27] The application for leave to appeal is dismissed. -- 6 of 6 --