Liddle v Kerr[2015] QCAT 386

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

What is this application about?

1. [1]
   This is an application for a tree dispute. William and Sandra Liddle are the applicants (‘the applicants’). The respondents are Colin Kerr and Sonja Briody (‘the respondents’). On 10 September 2015 the Tribunal made directions that the applicants and the respondents each contribute $500.00 toward the cost of the appointment of a tree assessor. The respondents have requested reasons for that decision.

What do the applicants say about the tree dispute?

2. [2]
   The application for a tree dispute was filed in the Tribunal on 10 August 2015 (‘the application’). The applicants live in a property adjoining the respondents’ property. The applicants complain about a number of trees situated on the respondents’ property:

   • 3 weeping satinash
   • 1 palm tree (“the trees”)
3. [3]
   The applicants’ complaints about the trees are outlined in their application and include:

   • The trees produce blossoms, and hence pollen, which has a severe effect on the health of the applicants’ children both of whom suffer from post viral coughing asthma. These effects include coughing and eye and skin irritation. It also appears from the application that the applicants claim to be suffering ill health effects from the presence of the blossoms and associated particles;
   • The trees produce a large amount of hair like flower particles which have the effect of constantly clogging the applicants’ swimming pool filter which has resulted in the applicants’ solar filter being required to be re-bled;
   • The trees (collectively) impact the views previously enjoyed by the applicants;
   • The trees (collectively) obstruct sunlight to the roof of the applicants’ dwelling thus impacting upon the operation of solar panels installed on the roof of the house.
4. [4]
   The applicants say that they have been attempting to negotiate a resolution of the issues in relation to the trees with the respondents since November 2014 without success.
5. [5]
   The applicants seek an order from the Tribunal that the trees be trimmed to the height of the applicants’ timber fence which, given the relevant topography of the respective properties, would result in the trees being maintained at a height of approximately 4 to 6 metres from ground level.

What do the respondents say about the tree dispute?

6. [6]
   The respondents have filed a response to the application. They dispute a number of the applicants’ contentions. The respondents say:

   • the trees are ‘low allergen’;
   • the pool on their property is not adversely affected by the blossoms and fibres in the manner or extent of complained by the applicants;
   • the trees are an important feature in maintaining the stability of the bank on which they are situated;
   • severe pruning to the trees could put the health of the trees at risk.
7. [7]
   The respondents seek orders from the Tribunal including:

   • that reasonable pruning of the trees be undertaken to restore the applicants’ views without the risk of adversely impacting the health of the trees;
   • that the tree works be undertaken by a qualified arborist appointed by the respondents;
   • that future pruning may be carried out “by the owner of the property if so desired” (it is unclear to whom this refers – the owner of the respondents’ property or the owner of the applicants’ property);
   • that the applicants pay one half of the tree works and any future works required.

The appointment of a tree assessor

8. [8]
   The application is brought pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDR Act’).
9. [9]
   The application involves a number of trees;^[1] the respondents are tree keepers;^[2] the applicants are neighbours;^[3] the applicants assert that their land is affected by the trees;^[4] the applicants’ land adjoins the respondents’ land.^[5]
10. [10]
    On 27 August 2015 the Tribunal made directions that the parties file in the Tribunal submissions about the intention of the Tribunal to appoint a tree assessor and that the parties contribute equally (in the amount of $500.00 each) to the cost of the assessor.
11. [11]
    In their submissions, the applicants agreed to contribute $500.00 to the cost of the tree assessor.
12. [12]
    The respondents objected to contributing toward the cost of the appointment of the tree assessor. The respondents submitted:

    • the complaint raised by the applicants in relation to the impact of the trees on their views is a recent one;
    • they have always been prepared to agree to the reasonable pruning of the trees;
    • they have not experienced the issues the applicants complain of concerning the litter from the trees;
    • the trees are an integral part of the respondents’ property;
    • the cost of the appointment of a tree assessor is unwarranted and the applicants should bear the entire cost of the assessor as the respondents have not acted in an unjust or irresponsible way;
    • the applicants’ (initial) complaints to the respondents about the seasonal flowers do not fall within the provisions of the NDR Act as a basis for relief.
13. [13]
    The President of the Tribunal may make practice directions about the practices and procedures of the Tribunal.^[6] Practice Direction no. 7 of 2013 (‘the Practice Direction’) relates to arrangements for applications for orders to resolve issues about trees.
14. [14]
    The Practice Direction provides, among other things, that:

    • the Tribunal will generally appoint an expert tree assessor to avoid the parties incurring the costs of appointing their own experts;^[7]
    • the Tribunal may make an order requiring a party or all parties to contribute to the cost of the tree assessor;^[8]
    • the starting point for any consideration as to the contribution the parties should make to the cost of the tree assessor is that the cost should be shared equally;^[9]
    • the determination of whether and to what extent a party or the parties are required to contribute to the cost of the tree assessor will be determined by the Tribunal without an oral hearing.^[10]
15. [15]
    I am satisfied that paragraphs 2, 3, and 8(a) of the Practice Direction have been satisfied.
16. [16]
    The Tribunal may make an order requiring a party to pay or contribute to the Tribunal’s costs of obtaining the help of an assessor.^[11]
17. [17]
    The issues in dispute in relation to the trees relate to:

    1. an allergic or other physical reaction to the trees suffered by the applicants and their children;^[12]
    2. damage to the applicants’ property (ie the pool and pool filter) caused by the excessive tree litter and the nature of the litter;^[13]
    3. obstruction of a view to the applicants’ property;^[14]
    4. obstruction of sunlight to the applicants’ roof and solar panels.^[15]
18. [18]
    Most of these issues will be required to be addressed by the tree assessor. Other evidence may be required in relation to the issue of the allergenic or irritant properties of the trees and any impact of the trees upon the members of the applicants’ family.
19. [19]
    The tree assessor will consider the nature and extent of any works which may be required to be undertaken in respect of the trees. This will include considerations as to whether the works will have any adverse impact on the health of the trees which may in turn involve issues relating to the stability of the land on which the trees are growing. The tree assessor will consider the issue of views and work on the trees that may be relevant to, among other things, restoring any lost or impeded view.
20. [20]
    The tree assessor’s report will assist the Tribunal in its consideration of the relevant issues pursuant to the NDR Act and will form part of the evidence which the Tribunal will consider in its final determination of the issues in dispute between the parties.
21. [21]
    There is nothing before me to suggest that I should depart from the general proposition that the parties are to share equally the costs of the tree assessor.^[16] There are clearly competing views expressed by the parties, neither of which at this time can be afforded more weight than the other.
22. [22]
    In the circumstances it is reasonable and appropriate that William Francis Liddle and Sandra Elizabeth Liddle (jointly) and Colin Kerr and Sonja Brody (jointly) each pay $500.00 toward the cost of a tree assessor.