Tighe v Schak[2015] QCAT 387

REASONS FOR DECISION

1. [1]
   Ms Tighe owns a house at 375 Brisbane Corso, Yeronga, in Brisbane. It is a luxury house with a swimming pool, formal landscaped grounds, a private pontoon, and boulder retaining of the riverbank, on the Brisbane River.
2. [2]
   Mr Schak and Professor Chu own the neighbouring house at 373 Brisbane Corso, Yeronga. They also have a desirable home on the river with a private pontoon, but they have a completely different style of landscaping. Their block has extensive natural vegetation over more than half the block, on the river side.
3. [3]
   Ms Tighe filed an Application on 17 December 2012 seeking on Order that the trees be removed or pruned, and compensation. The basis of her application was that debris from the trees had caused serious damage and substantial, ongoing and unreasonable interference with her use and enjoyment of her land.
4. [4]
   The claim for compensation in the amount of $22,173.89 was comprised of:^[1]

   1. Costs of repairing the pool filtration system and Polaris pool cleaner totalling approximately $1,199.50 (GST inclusive);
   2. Installation of Leafguard and other measures to safe guard the gutters and valleys of the Applicant’s roof totalling approximately $13,618.00 (GST inclusive);
   3. Gardening costs to remove the debris from the trees totalling approximately $2,262.39 (GST inclusive);
   4. Costs of repairing damage caused by internal water penetration from leaves being blocked in the gutters totalling $5,094.00 (GST inclusive).
5. [5]
   The damage that was caused was described as including:^[2]

   1. Damage to the tiles surrounding the pool;
   2. Continual blockage to the pool filtration system;
   3. Damage to the Polaris pool cleaner;
   4. Compromised water quality in the pool such that it is unusable;
   5. Continual blockage to the gutters and valleys of the roof;
   6. Internal water penetration into the ceiling.
6. [6]
   On the hearing, Ms Tighe did not pursue the order for removal of the trees, and sought an order for pruning of them.
7. [7]
   A significant amount of material, comprising 15 documents, was tendered at the hearing:

Ms Tighe

Application   17 December 2012

Statement Ms Tighe 8 December 2012

Statement Ms Tighe 20 Aug 2012

Statement Bruno Camerlengo (Pool Service) August 2013

Statement George Anderson (Landscape gardener) 20 August 2013

Professor Chu

Response (including Statement of Prof. Chu) 23 October 2013

Supplementary Statement Prof. Chu 29 October 2013

Experts

Statement Darryl Bourke 21 August 2013

Statement Darryl Bourke 2 October 2013

Statement Prof Catterall 7 October 2013

Report Jeremy Young 23 September 2014

Tribunal Tree Assessment Report (Jan Allen) 1 July 2013

Supplementary Report Jan Allen 14 November 2014

Report Bill Manners (BCC) 18 September 2013

Joint Experts Report 19 April 2015

8. [8]
   No witnesses were required for cross-examination, and the hearing was conducted by oral submissions by the parties. Mr Manners appeared for the Brisbane City Council, as an interested entity, and also made submissions.
9. [9]
   This is the reserved decision in the matter.

Submissions by Ms Tighe

10. [10]
    Ms Tighe said that they had moved from acreage into suburbia, and she did not realise that the trees would be a problem. She said the trees were there when they bought the house, but had ‘grown a lot’ since then.
11. [11]
    She said there was staining on the pool area, and the front and back balconies of the house from leaves. She said she had continual costs in removing the tree debris.
12. [12]
    She said she realised that the trees would not be removed, but wanted to see something done.
13. [13]
    They had dug the original pool out, and built the current pool after they bought the house. She said that she consulted a tile shop when buying the pool surround tiles, and they had said that staining would be a problem. She wanted light colour tiles, so that they would not be hot to walk on. The tiles were sealed. She did not want lawn, artificial grass or decking for a surround.
14. [14]
    She suggested that the trees be pruned back.

Submissions of Professor Chu

15. [15]
    Professor Chu said that they had bought their property with the trees in place, because they like trees, which they see as part of the character, and they protected the riverbank from erosion.
16. [16]
    She said the trees were fully mature when Ms Tighe bought her property. She described the growth in the past 10 years as ‘very slight’.
17. [17]
    Initially Professor Chu sought the costs she had incurred in relation to this matter (including legal costs) of $5,000 - $10,000. Subsequently, she said that she did not want to prolong the proceedings, and would not seek costs.

Submissions of Mr Manners

18. [18]
    Mr Manners is the ‘Principal Officer Natural Environment, Compliance and Regulatory Services, Brisbane Lifestyle, Brisbane City Council’.
19. [19]
    Mr Manners said that all four trees on the tree-keepers property were protected by the ‘Waterway Protection Corridor’. He said they were Gums which all maintained the objects of the Corridor – they contributed to biodiversity through the use of hollows, were strategically located on a green-space corridor, and that mature vegetation was valuable and had an amenity value. He said the vegetation had long-term protective status, being on the river.
20. [20]
    He said that an application could be made for removal or pruning of the trees. He advised that no such application had been made to the Brisbane City Council.
21. [21]
    However, he said that access would be a problem for pruning, and that it could cause epicormic growth. He described the limbs as too thin to climb, and it would require an elevated work platform, which would be difficult as the overhanging limbs are 16 metres high.
22. [22]
    He said that he had been involved in this matter from the start, and that it was an issue as to nuisance, not safety. He said there would be an expectation that debris would blow on the river, and a clear expectation of maintenance to be required.
23. [23]
    He said that from his observations, that debris from that location did not exceed the expectation for debris blown outside by the wind. In his report he said:^[3]

Council does not consider debris from the trees is causing serious damage to the land or any property on the land that cannot be reasonably managed. It should also be acknowledged that the majority of the debris is wind-blown, as the location of the Applicant’s property on the Brisbane River exposes them to a high frequency of prevailing winds from the north east which would generate the dispersal of the tree debris from the respondents trees towards the applicants property. The recommended management measures such as a pool cover are seen as a reasonable and practical way of dealing with the pool debris issue and subsequent damage to pool filtration and cleaning equipment.

Expert reports

24. [24]
    Ms Jan Allen prepared a Tree Assessment Report for the Tribunal dated 20 June 2013. She described the trees as several large Eucalypt trees (Eucalyptus tereticornis – Common name: Forest Red Gum) which were by her estimate between 60 and 80 years old, and were protected by the Brisbane City Council Natural Assets Local Law. She gave their approximate sizes as:

25. [25]
    She described the tree canopies as interconnected and predominantly within the tree-keepers property, but also spread over both side boundaries. The canopy of tree 1 was the only tree which spread over Ms Tighes’s land, the upper canopy spread by about 5 metres – the area beneath the overhanging canopy was occupied mostly by the pool shed/gazebo tiled area and some turfed garden towards the river.
26. [26]
    She described them as mature specimens in generally sound condition with good vigour indicative of favourable growing conditions.
27. [27]
    She observed leaf litter, gum nuts and small twigs present on Ms Tighes land scattered on the turf, pathways, pool surround, in the pool and on the roof of the pool shed/gazebo under the tree and elsewhere within Ms Tighes land^[4]. She noted that:^[5]

The shedding of leaf litter, fruit and twigs is a normal part of tree growth and a characteristic that is widely accepted as tolerable in order to enjoy the many benefits that urban trees provide. The regular removal of litter and debris from gutters and drains is accepted as a common maintenance task of any home owner that is necessary to prevent blockages.

28. [28]
    She observed surface staining on the tiles surrounding the pool, but noted:^[6]

The amount of leaf litter noted at the inspection was not considered by me to be excessive or unmanageable and the applicant stated that the leaf litter was regularly removed by either herself or by the gardening contractor. In my opinion the staining was not unsightly or physically damaging and the effect may have been lessened by choice of a different tile of a more practical colour; terra cotta for instance would show less contrast with blown soil and leaves. Light tiles would in any situation highlight dirt, debris and discolouration and require regular cleaning.

29. [29]
    She considered the effect of debris on the swimming pool and noted:^[7]

A pool cover was not being used at the time of the inspection and had evidently not been used to stop leaf litter, fruit, twigs and other wind blown material from falling in the pool. This would appear to be an appropriate and effective barrier that, if maintained, would be likely to adequately reduce any effect on water quality or pool equipment from tree debris. The amount of leaf litter observed was not considered by me to be excessive or beyond the requirements of routine maintenance.

30. [30]
    She observed that there were no obvious features or identified hazards in any of the trees that indicated an intolerable risk to property or person. The threat of whole tree failure was considered to be negligible. She suggested an aerial inspection be conducted to confirm those ground-based observations.
31. [31]
    A report was obtained by Ms Tighe from Darryl Bourke (Arborist). Reports were obtained by Professor Chu from Jeremy Young (Arboricultural Consultant), and Professor Catterall (Ecologist and Environmental Scientist).
32. [32]
    Two experts conclaves were held in March 2014 and June 2104. It was agreed at the June meeting that in order to satisfy matters relating to tree risk, that an aerial inspection was to be carried out on two of the trees.
33. [33]
    The Tribunal subsequently appointed Mr Andrew Stovell to carry out an aerial inspection.
34. [34]
    Ms Allen filed a supplementary report after the aerial inspection, and noted:^[8]

No observations were revealed by the aerial inspection that caused me to review my previous determinations in relation to the extent of tree effects or to alter my recommendations in relation to their mitigation.

35. [35]
    A Joint Experts Report was produced on 1 April 2015. It is convenient to set it out in full:

    1. i)
       This report is provided to confirm the outcome of an experts conclave held on Wednesday April 1^st 2015 in relation to the above application.
    2. ii)
       The conclave was attended by Mr Darryl Bourke, Mr Jeremy Young, Mr Bill Manners of Brisbane City Council and Jan Allen, QCAT Tree Assessor.
    3. iii)
       The following matters were agreed by the experts:

    1. (a)
       No further investigations were required in relation to the tree matters or effects raised by the applicant.
    2. (b)
       The experts were satisfied with the findings in relation to tree effects as described in the previous reports prepared by Ms Jan Allen, Tree Assessor; those reports being the Tree Assessment Report prepared in May 2013 and the Supplementary Tree Assessment Report prepared in November 2014.
    3. (c)
       The risk of significant harm or damage posed by the trees to the applicant and the applicant’s property was sufficiently low as to be regarded as broadly acceptable.
    4. (d)
       There remained a point of concern in relation to the perception by the applicant that leaf, fruit and twig drop over the pool, pool surround and pool pump house from the overhanging canopy and the likely continued growth of tree number 3 over the applicant’s land constitute an ongoing nuisance.

Discussion

36. [36]
    There is no dispute in the expert evidence as to the nature and effect of the trees. The experts agree that the trees are mature, healthy, and pose no unacceptable threat to persons or property in their vicinity.
37. [37]
    It is clear that the debris from the trees is substantial, and causes significant maintenance for Ms Tighe. Is that on its own sufficient to give rise to a Tree Order?
38. [38]
    Section 66(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides that the Tribunal may make the orders it considers appropriate in relation to a tree affecting a neighbour’s land, to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
39. [39]
    The question then becomes as to whether the tree debris constitutes a ‘substantial, ongoing and unreasonable interference with the use and enjoyment of’ her land.
40. [40]
    Section 73 of the Act requires the Tribunal to consider a number of matters in deciding an application. Several of these are directly relevant to this application.
41. [41]
    Section 73 (1)(b): ‘whether carrying out work on the tree would require any consent or authorisation under another Act’ – consent would be required from the Brisbane City Council to remove or prune the tree due to its location on the riverbank. No such consent has been sought or given.
42. [42]
    Section 73(1)(d): ‘any contribution the tree makes to the local ecosystem and to biodiversity’ – Mr Manners gave evidence, which I accept, that the trees make a contribution to biodiversity and are a part of the local green-space corridor. That view was supported by the report of Professor Caterall who said the trees provide food and habitat for native wildlife species and contribute to urban riparian corridors that may assist their movement – she described this as a ‘significant ecological role’.
43. [43]
    Section 73(1)(h): ‘any impact the tree has on soil stability…’ – Professor Chu contends that the trees are important for the stability of the riverbank. That contention was not challenged.
44. [44]
    Section 75 provides that where it is alleged that the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, the Tribunal may consider several matters.
45. [45]
    Section 75 (b): ‘any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference’ –

    1. Ms Allen suggested that a pool cover would serve to minimise the effect of the debris on the swimming pool. Mr Manners concurred with that view.

Ms Tighe did not address, or give any reason why, she did not use a pool cover. If Ms Tighe chose not to use a pool cover for aesthetic reasons, then the extra maintenance that results from that choice is of her own making.

2. Ms Tighe constructed and positioned the pool herself. She would have had an awareness of the presence of the trees, but makes no reference to taking them into consideration in designing the shape or size of the pool, in placing it on her block.
3. Ms Tighe chose the tiles for the pool surround herself. She was cautioned by the tile shop that light tiles would stain. She made a conscious decision to use light tiles as they would be cooler underfoot. By making that decision, again extra maintenance resulted from that choice of her own making.

Further, there would have been options available to her such as timber decking, which may have been cooler underfoot, and may not have been as subject to staining, that she apparently did not consider.

46. [46]
    Section 75 (d):’whether the tree existed before the neighbour acquired the land’ – it is agreed that the trees were all existing when Ms Tighe bought her land. It appears that Ms Tighe bought her property about 10 years ago. That means that the trees (on Ms Allen’s estimate) would have been 50 to 70 years old at the time. They would have been very large trees at that time.
47. [47]
    By buying a property adjacent to another property with large existing trees. Ms Tighe assumes the ordinary and natural consequences of their litter. In Edmonds v Yeates & Anor^[9] the Tribunal considered the complaint of a neighbour about a row of six leopard trees which dropped leaves, pods and small branches. The Acting Deputy President noted:

[8] This tribunal has determined^[10] that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree. That approach is consistent with a recent decision of the Court of Appeal in Graham& Ors v Welch^[11]. Atkinson J said^[12]:

Trees and bushes are commonplace and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods.

[9] The leaf litter of which Mr Davies complains is a natural incidence of a suburban landscape that includes trees. It does not constitute a substantial, ongoing and unreasonable interference.

48. [48]
    Ms Tighe said that she was unaware that gum trees were a problem when she bought the property. If she had lived on acreage, which presumably  was treed, or located in a treed area, it could normally be expected that she would have a good awareness of the nature of trees. It would be more understandable if someone had been brought up in a closely settled inner-urban environment, and then moved to a rural or suburban area, that they would not have a good appreciation of trees, but in this instance it seems a counter-intuitive proposition.
49. [49]
    In any event, the principle of ‘buyer beware’ would apply – the trees would not only have been obvious, they would have been unavoidably obvious, due to their size and location, as a prospective purchase looked that direction towards the river. Ms Tighe should have made inquiries at the time of purchasing the property as to the possible implications of the trees present on the adjoining property.
50. [50]
    Therefore, there are numerous considerations that may make a Tree Order inappropriate.
51. [51]
    No need for pruning of the trees is indicated by the joint report of the experts, and they did not make any recommendations in that regard.
52. [52]
    I am not satisfied that there is a substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Tighe’s land, having regard to the opinions of Ms Allen and Mr Manners, as to the shedding of leaf litter, staining of the tiles and the effect of debris on the swimming pool, discussed earlier, and to the principles referred to in Edmonds v Yeates and Anor. The leaf litter is neither unreasonable in its volume, nor unexpected in an urban environment, and does not constitute an unreasonable interference.
53. [53]
    Further , I do not consider it is appropriate that a tree order should be made, having regard to:

    1. the matters discussed above as to Section 73 that the work has not been authorised by the Brisbane City Council; the trees make a contribution to the local ecosystem and biodiversity; and have an impact on soil stability, and
    2. the considerations discussed above as to Section 75 that Ms Tighe has not taken steps to prevent or minimise the interference by using a pool cover; did not design the pool to better suit the position; and did not choose tiles, or an alternate surround material, that would not stain as easily.
54. [54]
    Having regard to my finding that no substantial, ongoing and unreasonable interference has been established, no question of compensation arises.
55. [55]
    Accordingly, the application for a Tree Order is dismissed, with no order as to costs.