Findlay and Anor v Woodward [2012] QCAT 380

CITATION: Findlay and Anor v Woodward [2012] QCAT 380 PARTIES: Warren Rodney Findlay Kay Barbara Findlay v John Woodward APPLICATION NUMBER: NDR006-11 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: W LeMass, Member DELIVERED ON: 24 August 2012 DELIVERED AT: Brisbane ORDERS MADE: The tribunal orders that the tree be removed to ground level by the Respondent tree keeper within 30 days and all resultant debris be removed. CATCHWORDS: Trees – amenity – safety – destroy tree Neighbourhood Disputes Resolution Act 2011, ss 46, 48, 54, 66, 70-75, 72 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 Background [1] In Kolan Street, Bundaberg there is a very tall poinciana, a habitat for local bird life and no doubt of considerable beauty each November when in flower. [2] Mr and Mrs Findlay live at number 7 Kolan Street and their home is to a very great extent affected by the overhanging poinciana. The full extent of that can be seen in the photographs.1 The tree is twice as high as their 1 See photo A with the file. -- 1 of 4 -- 2 two-storey home and covers a gabled single story garage between their home and the common boundary. [3] Mr Findlay has asked the Tribunal to make orders for the removal of the tree. [4] Mr Woodward, the owner of number 9 is the tree-keeper.2 Neighbours are encouraged to resolve disputes informally.3 However Mr Woodward has not engaged in this process at all; in mediation, in making submissions as directed or in meeting the arborist when he visited. [5] Pursuant to the Tribunal’s Practice Direction4 an appropriately qualified arborist was appointed and attended the property on 4 February 2012. [6] The issues for determination are: a. The Jurisdiction of the tribunal in the circumstances described;5 b. Whether the land is affected by the tree;6 c. What is the appropriate order to be made, if any7 particularly considering all relevant matters set out in the Act?8 Jurisdiction [7] Not all tree disputes are within the neighbourhood dispute jurisdiction, including circumstances involving, for example, parks and rural properties. [8] The relevant matters have been considered by the arborist on site and I am satisfied that the Tribunal can deal with this matter.9 Is the land affected by the tree? [9] Land may be affected by a tree where: it adjoins the land on which a tree is situated and branches overhang; serious injury or damage to property is likely within the next 12 months; or there is substantial ongoing unreasonable interference with the use of land caused by the tree.10 [10] I am satisfied pursuant to section 46 that the land is affected by the tree. The arborist11 says; 2 Section 48 NDR Act. 3 Section 56 NDR Act. 4 Number 5 of 2011. 5 Sections 42, 45. 6 Section 46. 7 Section 66. 8 Sections 70-75. 9 See arborist’s report dated 4 February 2012 at paragraph 21. 10 Section 46(a)(b) Neighbourhood Disputes Resolution Act 2011. 11 See page 2 of 8 of the report of Mr David Roberts. -- 2 of 4 -- 3 It has a spread of 13 meters and a height of 12 metres …the length of overhang into no 7 is 8 metres with an approximate area of overhang at 100m2. [11] Clearly subsection (a)(i) is satisfied because branches overhang the land. [12] However in this case I am also satisfied that the land is also seriously affected as indicated in paragraph 2.2 of the report: The trees affect the applicant’s land by substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land. Broken branch stubs within the canopy indicating previous branch failures that may, depending on future use of the area under the canopy, pose a risk of injury to persons on the land. The buttress roots of the Poinciana are currently pushing up under the existing fence. These roots may also be contributing to the blocked stormwater pipes. It is likely that further damage will continue to occur in the next 12 months. I was unable to visually inspect the pipes to ascertain the cause of the blockage. What is the appropriate order? [13] The Findlays seek an order that the tree-keeper remove all overhanging branches, pay an unspecified sum for blocked drains and address the apparent problem of “happy plants” and boundary survey. [14] A fencing dispute is also on foot. For this reason I will not make any possibly redundant orders about any matters other than the principal concern of the poinciana. [15] The Act sets out in Division 4 the matters which the Tribunal should take into account when considering this application. The primary consideration is safety12 but other relevant considerations in this case are: a. The location of the tree to a boundary – it is very close and may be getting closer (s 73(1)(a)). b. The contribution the tree makes to amenity (s 73(1)(g)) – this is an obvious very high value. c. The contribution of the tree to the likelihood of injury or damage – (s 74(1)(a)). [16] The arborist says of this, that: Trees naturally grow with a symmetrical crown that distributes their weight evenly over the root crown. The recent pruning works that have occurred within the last few weeks have shaped the tree to be lopsided. This added pressure on the tree as a system to compensate for the increase in load 12 Section 71. -- 3 of 4 -- 4 forces,1 (and its likely inability to do so) could lead to root, trunk or branch failure in times of strong winds or storm events. …recent pruning has made the tree lopsided …the increase in load forces could lead to root trunk or branch failures in times of strong winds or storm events. [17] Given such opinion is clear to me that the likelihood of damage or injury is high. [18] Further the arborist concludes (clause 4): Removal of the Poinciana is recommended to alleviate risk associated with retention and cease nuisance and property damage issues’ [19] Unfortunately, in any contest, considerations of safety will always override amenity. [20] Section 72 provides that a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. A compromise might have been available, save Mr Woodward’s consistent attitude to the matter as found by the arborist13: Non-representation by Mr Woodward meant hat (sic) no negotiation was possible at time of assessment. [21] This beautiful tree has outgrown its urban circumstance and must, in consideration of the expert evidence and opinion presented to the tribunal, be removed as it can not safely be further pruned. Order [1] The tribunal orders that the tree be removed to ground level by the Respondent tree-keeper within 30 days and all resultant debris be removed. 13 At paragraph 3. -- 4 of 4 --