Corbin v Archer [2014] QCAT 19

CITATION: Marlene Ann Corbin v Archer [2014] QCAT 19 PARTIES: Marlene Ann Corbin (Applicant) v Kathleen Archer (Respondent) APPLICATION NUMBER: NDR045-13 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 13 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: TREE DISPUTE – whether entitled to compensation – whether serious damage to land or property on land caused by remaining tree Neighbourhood Disputes Resolution Act 2011 (Qld) ss 46, 52, 61, 65, 66, 68, 71, 74 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] At the time the application commenced it is not disputed that Ms Archer had 4 trees in her yard situated near the common boundary with Ms Corbin‟s property. Ms Corbin applied for various orders including the removal of the 4 trees (described as a tallowwood and 3 grey gums) at Ms Archer‟s cost and for compensation for damage. -- 1 of 5 -- 2 [2] The Neighbourhood Disputes Resolution Act 2011 (Qld) (the Act) provides that the owner of land on which a tree is situated (the „tree- keeper‟) is responsible for the proper care and maintenance of the tree and for ensuring that the tree doesn‟t cause serious damage to land or property.1 [3] Since the application commenced: a) Ms Archer removed 2 of the 4 trees (the tallowwood and one of the grey gums) and sold her property; b) Ms Corbin withdrew her application except in regard to the claim for compensation in the amount of $850 for damage to her land or property prior to Ms Archer selling her property. [4] The Tribunal has power to determine a matter where it is alleged that land is “affected by a tree” at the date the application was lodged.2 Section 46 of the Act relevantly provides that land is affected by a tree if the tree has caused serious damage to the land or any property on the land and the land adjoins the land on which the tree is situated. [5] 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. [6] 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. [7] 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. [8] Division 4 of the Act sets out matters for consideration. Section 71 provides that the primary consideration is the safety of any person. [9] Other matters to consider include whether anything other than the tree has contributed to the damage, any step taken by the tree- keeper or neighbour to prevent or rectify damage.3 [10] Ms Corbin claims that: a) On 9 September 2011 her garden shed was damaged by a branch breaking off “the largest grey gum”. 1 Neighbourhood Disputes Resolution Act 2011 s 52. 2 Ibid s 61. 3 Ibid s 74. -- 2 of 5 -- 3 b) On 28 January 2013 her replaced garden shed was damaged by “another large branch from the same tree” and her fence and backyard was “effected by large branches off the Tallowood and other smaller gum”. c) both sheds had to be replaced. d) she and her neighbour Mr Smith paid $500 in total to have a large branch removed on 10 March 2012. e) she made claims against her household insurance policies but was required to pay an excess of $300 on both occasions. [11] Ms Corbin‟s claim for compensation in the sum of $850 appears to consist of: a) 9 September 2011 event excess - $300. b) 28 January 2013 event excess - $300. c) 10 March 2012 removal of branch - 50% of $500 paid - $250.4 [12] The Tribunal appointed an arborist to prepare a report. By the time of the arborist‟s inspection 2 of the 4 trees (including the tallowwood) had been removed. [13] 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 but is not empowered to make an order “to remedy damage caused by a tree that has been completely removed if the tree-keeper has sold the land on which the tree was situated since the damage was caused”.5 [14] As Ms Archer has sold the land since the damage was caused an issue to be decided is whether one or other or both of the remaining trees caused the damage. [15] There is little evidence which identifies the particular tree(s) which caused the damage to the sheds. The Tribunal appointed arborist, Ms Allen, concluded that it was not possible for her to confirm that the trees had caused the damage and that: the canopy failure cited by the applicant had occurred as a consequence of extreme weather and not from any inherent mechanical defect.6 [16] Ms Corbin is the applicant and bears the onus of establishing to the Tribunal‟s satisfaction that she is entitled to an order to remedy serious damage to her land or property on her land. 4 Correspondence received by Tribunal 8 November 2013. 5 Neighbourhood Disputes Resolution Act 2011 s 68(2). 6 Tree Assessment Report dated 20 September 2013 at page 10. -- 3 of 5 -- 4 2011 Event Claim [17] I am not satisfied due to the lack of evidence before the Tribunal that a branch from one of the 2 now remaining trees fell on the shed in September 2011 and therefore am not satisfied that Ms Corbin should be compensated in the sum of $300 for the excess she incurred. [18] Ms Archer denies the damage was caused by her tree and contends that there were gale force winds during the relevant storm. [19] Ms Corbin does not give evidence that she saw a branch from one of the 2 now remaining trees fall on the shed nor how she otherwise determined that the damage to the shed was caused by one of the 2 now remaining trees. [20] Documentary evidence relating to Ms Corbin‟s insurance claim in 2011 is to the affect that during a storm a branch from a tree in a neighbouring property broke off and fell on the shed causing the damage being impact to the roof and walls of the shed. The document does not identify the tree or which neighbour. 2012 Claim [21] I am not satisfied that it is appropriate to award compensation to Ms Corbin in relation to half the cost to remove a branch from a tree in March 2012. [22] Ms Archer appears to concede that the branch was removed from the larger of the 2 remaining gum trees.7 [23] The evidence before the Tribunal is that Mr Smith and Ms Corbin paid for the removal of a branch to prevent future possible damage to their land or property. There is limited evidence of whether the branch posed any particular real risk of damage other than both Mr Smith and Ms Corbin held concerns. They also held concerns in relation to the 2 now remaining trees although Ms Allen, the arborist, concluded that “the perceived threat of significant harm or injury from falling tree parts was unwarranted.”8 [24] The amount expended by Ms Corbin was not to remedy serious damage to her land or property on her land. 2013 Event [25] I am not satisfied due to the lack of evidence before the Tribunal that a branch from one of the 2 now remaining trees fell on the shed in January 2013 and therefore am not satisfied that Ms Corbin 7 Response – attachment at [21]. 8 Tree Assessment Report dated 20 September 2013 at page 15. -- 4 of 5 -- 5 should be compensated in the sum of $300 for the excess she incurred. [26] Ms Corbin does not give evidence that she saw a branch from one of the 2 now remaining trees fall on the shed nor how she otherwise determined that the damage to the shed was caused by one of the 2 now remaining trees. [27] Ms Corbin has produced documentary evidence to show that she incurred a $300 excess in relation to the insurance claim in early 2013 but the document does not identify the tree which caused the damage. [28] Whilst Ms Archer does not deny her trees caused damage she says that the loss was the subject of a claim under Ms Corbin‟s household insurance policy and that there were cyclonic winds during the relevant storm. There is no admission that one of the 2 now remaining trees caused the damage. [29] In any event there is evidence before the Tribunal, which is not disputed and which I accept, that since at least September 2011 Ms Archer has regularly sought and followed the advice of a qualified arborist in caring and maintaining the 4 trees to prevent damage they might cause. This preventative action together with the fact that the damage was caused during extreme weather events9 would be factors which would weigh against the ordering of compensation to reimburse the excess incurred even if I was satisfied that one of the 2 now remaining trees caused the damage. 9 A contributing cause per s 74. -- 5 of 5 --