Watson v Leonardi[2015] QCAT 238

APPEARANCES:

REASONS FOR DECISION

1. [1]
   Mr Watson and Ms Harloe are neighbours with Mr and Mrs Leonardi.
2. [2]
   Mr and Mrs Leonardi have an Albizia Lebbek or Indian Siris or Raintree in their yard.
3. [3]
   Ms Harloe alleges that pollen from the flowers from this tree have caused her persistent health issues for quite some time. She has alleged that she suffers from a severe allergic reaction to the pollen of the flowers.

The legislation

4. [4]
   Section 48 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) makes the Respondent’s tree-keepers responsible for the proper care and maintenance of the tree.
5. [5]
   Section 46 of the Act sets out when Land is affected by a tree. This includes where a tree is causing, or is likely within 12 months to cause ”serious injury to a person”.
6. [6]
   Section 52 of the Act provides that a tree-keeper is responsible for ensuring that a tree on his land does not cause “serious injury to a person”.
7. [7]
   Because the applicants and the respondents are neighbours and have been unable to resolve the concerns the applicants can apply to QCAT to adjudicate on the matter.
8. [8]
   The Tribunal can make an order it considers appropriate in relation to a tree affecting the neighbours’ land to prevent serious injury to a person.
9. [9]
   The Tribunal can under section 66 of the Act make an order that requires the removal of the tree within 28 days.

Ms Harloe

10. [10]
    Ms Harloe gave evidence that the pollen affects her breathing; causes a burning sensation down her throat; her eyes swell and become infected; she develops blotches on her skin similar to measles; it affects the skin between her fingers and her toes and the soles of her feet. The symptoms have been so severe that Ms Harloe’s General Practitioner has referred her to the allergy specialist. Dr Hira the allergy specialist has prescribed medication to help Ms Harloe to deal with her allergy.
11. [11]
    Dr Hira in Exhibit 3 has confirmed that in his opinion Ms Harloe is suffering from urticaria that he thinks is due to an allergic reaction to the flowering of the Indian Siris or Albizia Lebbek. There is no pollen test for the Indian Siris the closest pollen to test for this according to Dr Hira is to test for the Acacia Mimosa. Ms Harloe has tested positive to the pollen of the Acacia Mimosa.
12. [12]
    There is accordingly evidence from the pollen tests that confirms the allergic response that Ms Harloe is experiencing. Ms Harloe’s evidence is that her health has seriously worsened over the last three years.
13. [13]
    There is a dispute over the period of tree flowering that is some period between six and ten weeks. Ms Harloe equates the flowering period to a 10-week school term.
14. [14]
    Ms Harloe has been a schoolteacher but is now retired. She talked about leaving the residence as much of the time as possible during the flowering season. She talked about lying in her bathtub full of cold water at night to attempt to gain relief from her symptoms. She talked about experiencing depression because of the impact of her symptoms on her quality of life.
15. [15]
    The photographs Exhibit 1 page 5 photographs A and B page 6 A and B page 7 A and B page 8 A and B page 9 A and B and page 10 A and B show the extensive flower litter that accumulates on the applicants’ yard.

Mr Leonardi

16. [16]
    He claims that the majority of the flower litter falls on his property.
17. [17]
    Mr Leonardi refers to the report of the arborist that the tree flowers for a period of six weeks
18. [18]
    Mr Leonardi also advised the Tribunal that the flowering was less in the dry years.
19. [19]
    Mr Leonardi did not dispute that Ms Harloe was suffering the symptoms she gave in her evidence.
20. [20]
    He was prepared to trim back the tree to reduce the amount of flowers and leaf litter that fall on the applicants’ land.
21. [21]
    Mr Leonardi also argued that because the tree only flowers for six weeks that there were 46 weeks when Ms Harloe was not seriously affected.

When is land affected by a tree?

22. [22]
    The Tribunal has no reason not to accept Ms Harloe’s evidence.
23. [23]
    She accordingly suffers a severe allergic reaction for a period between six and ten weeks of each of the last three years.
24. [24]
    The constellation of symptoms; the severity of the symptoms; and the need to take prescription medication satisfied the Tribunal this constitutes a serious injury to Ms Harloe.
25. [25]
    The legislation provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot be otherwise satisfactorily resolved.
26. [26]
    The arborist has made the point that Mr and Mrs Leonardi are responsible tree keepers. Mr Leonardi told the Tribunal that he sympathised with Ms Harloe and was willing to have tree trimmed back.
27. [27]
    The Tribunal notes that the parties have been unable to reach any agreement as to a course of action.
28. [28]
    The Tribunal is satisfied that serious harm is being caused and the only way to cease the effects is to remove the tree. The appropriate remedy is to order the destruction of the tree.
29. [29]
    The arborist notes on page 6 of his report that the tree does not have any historic, cultural or scientific values.
30. [30]
    This is no reflection on Mr and Mrs Leonardi. They love the tree and engaged an arborist to give them advice on how to manage the tree.
31. [31]
    This is an unfortunate case where the neighbour is seriously affected by pollen of the tree.
32. [32]
    The period of 6 to 10 weeks is a significant period.
33. [33]
    Ms Harloe talked about suffering depression. She leaves her home for as much as possible during flowering season. She talks about the steps she takes to obtain relief.
34. [34]
    Mr Leonardi does not dispute Ms Harloe's symptoms but sought to suggest that she was not affected for 46 weeks of the year.
35. [35]
    The issue for the Tribunal is whether serious harm is being caused. If the tree is causing serious harm for 6 to 10 weeks it is still causing serious harm.
36. [36]
    The nature of the serious harm doesn't need to be of a permanent basis.
37. [37]
    A period of six weeks with a severe allergic reaction meets the requirements of the legislation.
38. [38]
    The independent arborist could not comment on the allergic reaction that Ms Harloe was experiencing. He notes on page 8 paragraph 5: It is hard to recognise the effects of these flowers on any one person. Different persons can have different reactions or none at all. This is not my area of expertise nor am I qualified as to whether the flowers from this particular tree are the cause of the health issues that the applicant experiences whilst this tree is in flower.
39. [39]
    The arborist refers to testing of particular allergies.  Ms Harloe has done the pollen test and it has been established that she is reacting to the pollen of the Indian Raintree and that is a severe allergic reaction.
40. [40]
    This evidence has put the Tribunal in a better position in terms of making an appropriate decision in accordance with the legislation.
41. [41]
    The tribunal is looking at evidence outside the independent report of the tree assessor.
42. [42]
    The Tribunal orders that the Albizia Lebbek located on the Respondents’ land be wholly removed by the Respondents within 60 days.