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El Abbassy v Eliasson  QCAT 236
Amira El Abbassy
Jonathan Frans Alfred Eliasson
Other civil dispute matters
18 May 2016
27 May 2016
NEIGHBOURHOOD DISPUTE – TREE DISPUTE – failure to attend compulsory conference – whether to proceed in respondent’s absence - whether the respondent was the tree-keeper – whether the tree was causing substantial, ongoing and unreasonable interference – whether the tree ought to be removed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s72
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s46, s47, s48, s52, s61,s65, s66, s72
REASONS FOR DECISION
- Ms El Abbassy and Mr Eliasson own adjoining land. These proceedings were commenced on 28 January 2014 seeking various orders including removal of an African tulip tree and its roots claiming substantial, ongoing and unreasonable interference with Ms El Abbassy’s use and enjoyment of her land.
- Mr Eliasson’s has failed to comply with the Tribunal’s directions on numerous occasions, including:
- failure to attend directions hearings on 8 May 2014, 6 November 2014, 5 March 2015, 16 April 2015, 3 September 2015 and 10 March 2016;
- failure to file submissions as directed by direction dated 29 May 2014;
- failure to pay $400 towards the cost of a tree assessor as directed by direction dated 30 June 2014;
- failure to file a report from a suitably qualified arborist as directed by direction dated 16 April 2015;
- failure to file statements of evidence as directed by directions dated 3 September 2015 and 27 November 2015.
- By direction dated 10 March 2016, Mr Eliasson was required to file in the Tribunal a written explanation for his failure to attend the directions hearing that day and to file a notice whether he intended to respond to the application.
- Mr Eliasson failed to file any document by way of response to the claim other than a letter dated 18 March 2016, which denied sole liability for the tree the subject of the dispute, asserted that the tree was ‘growing out of both properties’, attached some photographs, made reference to an offer to cut down and remove the tree, made reference to some fencing issues, which are not the subject of the dispute and stated
I did not attend the hearing ….as I can not take time off work and I have a family and bills to pay.
- By direction dated 18 April 2016 the application was listed for a compulsory conference at 9.30am on 18 May 2016 and the Tribunal directed that
If Jonathan Frans Alfred Eliasson fails to attend the compulsory conference, without reasonable excuse, a decision adverse to him may be made.
- Mr Eliasson failed to attend the compulsory conference scheduled before me. I telephoned Mr Eliasson’s mobile phone number three times between 9.35am and 10.00am. On all three occasions, the call went through to his voicemail service. I left a message on his voicemail that I would wait until 10.00am before proceeding. On the last occasion at approximately 10.00am the message I left was that I would proceed in his absence.
- In view of the specific direction, shortly before 10.00am I also made enquiries with the registry as to whether Mr Eliasson had communicated a reason for his inability to attend the compulsory conference. The registry advised that no such communication had been logged in the case management database as received.
- Having reviewed the Tribunal file I was satisfied that Mr Eliasson was notified of the Compulsory Conference by Notice dated 26 April 2016 sent on or about that date. As no satisfactory explanation for non-attendance was before the Tribunal, I formed the view that I was entitled to proceed in Mr Eliasson’s absence to determine the application on the basis of the written evidence before the Tribunal.
- Mr Eliasson’s explanation for his non-attendance on 10 March 2016 is not a reasonable excuse for non-attendance particularly in circumstances where a party may apply for leave to attend by telephone, where circumstances prevent them from attending in person.
- Mr Eliasson did not make a formal application for leave to attend the Compulsory Conference by telephone. The Notice of a Compulsory Conference sent to the parties expressly states at paragraph 5 that
If you wish to apply for permission to attend the compulsory conference by telephone or video (where available), please complete the form ‘Application for hearing by remote conferencing, compulsory conferencing or mediation’ and send it to the Tribunal at least five (5) days before the conference.
- These are the reasons for my decision.
- Ms El Abbassy by submissions dated 23 March 2016 sought the following orders:
…..Mr Eliasson cuts down the offending tree, grinds all the roots and removes all the debris from both my property and his, so that the tree does not re-root and grow again……
Mr Eliasson re-instate the grounds in my property where the tree and it’s roots are blocking the water flow from running down the block to the street and hence caused flooding into my garage, the adjoining pergola area and the rear of the house, causing more damages to the weatherboard sheeting which will also need replacing……..
The compensation I claim is as follows:
- QCAT application fees $285
- Arborer’s fees $324
- Re-instatement of the grounds in my property…… These costs will not be known, as I cannot get any engineer to quote on this matter, as the extent of the damage is unknown until all the roots have died and the ground has settled under the garage and the pergola.
- The Neighbourhood Disputes (Dividing Fences and Trees) 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 substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.
- Eliasson effectively denies that he is the ‘tree-keeper’ and asserts the tree is on both his and Ms El Abbassy’s land such that they are both responsible for the tree.
- Section 47 of the Act provides that a tree is situated on land if the base of the trunk is situated wholly or mainly on the land. Section 48 of the Act provides that a person is a tree-keeper for a tree if they are the owner of the land on which the tree is situated.
- I find that the base of the trunk of the tree is, at least mainly, on Mr Eliasson’s land. The photographs and the arborist’s report, show that the tree is pushing up against the fence from Mr Eliasson’s side of the fence. It therefore follows that Mr Eliasson is the tree-keeper in respect of this tree.
- 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. Section 46 of the Act relevantly provides that land is affected by a tree if the tree has caused substantial, ongoing and unreasonable interference with the neighbour’s use of the land and the land adjoins the land on which the tree is situated.
- I find that Ms El Abbassy’s land is affected by the African tulip tree.
- Ms El Abbassy’s land clearly adjoins Mr Eliasson’s land. The undisputed evidence is that the properties share a common boundary.
- Mr Eliasson’s submissions do not dispute the evidence of Ms El Abbassy and the arborist that the tree is causing the fence to lean into Ms El Abbassy’s land and that the roots are preventing water from flowing out to the front of the property resulting in flooding and water damage to Ms El Abbassy’s house. In those circumstances, I accept Ms El Abbassy’s and the arborist’s evidence in those respects and find that the tree is causing substantial, ongoing and unreasonable interference with Ms El Abbassy’s use of the land.
- Section 66 of the Act gives broad powers to the Tribunal to make an order about a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with Ms El Abbassy’s use of the land.
- 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 (in this case Ms El Abbassy) made a reasonable effort to reach agreement with the tree-keeper.
- There is evidence before the Tribunal of steps to attempt to resolve the dispute in that Ms El Abbassy’s property manager wrote to Mr Eliasson on 29 November 2013 seeking removal of the tree because it was
causing the fence to lean and the tree requires removal as it also causes drainage issues
- There is some evidence that Mr Eliasson offered to cut down the tree but required Ms El Abbassy to remove the stump although this appears to have only been offered after the proceedings commenced and the arborist was retained by Ms El Abbassy.
- I am satisfied that the preconditions in section 65 of the Act have been satisfied. Division 4 of the Act sets out matters for consideration.
- Section 72 of the Act provides that a living tree should not be destroyed unless the issue cannot otherwise be satisfactorily resolved. Having regard to the location of the fence, the tree’s impact on the fence and the impact of its roots on Ms El Abbassy’s house I am satisfied that it is not possible to resolve the issue satisfactorily short of removal.
- I have also weighed the evidence of the arborist, which is that the tree is a declared pest and has no amenity value. Mr Eliasson has not disputed this evidence.
- I find that Mr Eliasson is responsible for:
- the costs of removing the African Tulip tree, including removal of the stump and its roots whether located on his land or on Ms El Abbassy’s land by a suitably qualified and insured arborist;
- the costs of re-instating Ms El Abbassy’s land including reinstating any damage caused by the roots and by the consequential flooding and water damage;
- payment of the filing fee and reimbursing the costs of the arborist.
- In view of Mr Eliasson’s frequent noncompliance with the orders of the Tribunal, I make directions for Ms El Abbassy to provide evidence to quantify the costs of removal and reinstatement works so that a monetary order may be made and to allow Mr Eliasson to respond to these remaining issues of quantum.
- Prior to finalising these written reasons, on 19 May 2016 the Tribunal received a letter from Mr Eliasson dated 13 May 2016, apparently sent by post. Having inspected the envelope it is not possible to determine the date upon which it was placed into the postal system. Relevantly it states
I am unable to attend the conference on the 18th of May 2016 at 9:30 am as I can’t get time off work. It’s a very busy time at the moment and I’m currently training new workers who rely on me. I am available to be contacted by telephone and may be contacted on [mobile number inserted] to be part of the conference.
- The mobile number provided was the phone number, which I called three times as referred to in paragraph 6 of these reasons, which Mr Eliasson did not answer.
- Published Case Name:
El Abbassy v Eliasson
- Shortened Case Name:
El Abbassy v Eliasson
 QCAT 236
27 May 2016