Holloway v Barker[2018] QCAT 365

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this Application about?

1. [1]
   Jennifer Barker has a Eucalyptus drepanophylla (Queensland grey ironbark) tree on her property at 12 Lorien Avenue, Coolum Beach that is causing concerns for her neighbours. Specifically, they claim the tree is dangerous because it is damaged and likely to fall.

Does the Tribunal have jurisdiction?

2. [2]
   Having considered section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), the Tribunal is satisfied that chapter 3 applies to the trees.
3. [3]
   The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.

Are the trees likely to cause serious injury or damage?

4. [4]
   Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of ‘likely’ is probably or reasonably to be believed or expected. The neighbours relied upon a report from an environmental landscape consultant following an inspection on 20 August 2018.^[1] Ms Barker did not commission any expert report in response. I therefore accept the consultant report and its recommendations.
5. [5]
   The consultant report relevantly states:

1. (a)
   The tree has a large split in the trunk reaching to the ground;
2. (b)
   On the day of inspection, the split was opening and closing 150mm wide with wind gusts;
3. (c)
   The tree is 16 to 18 metres high and 45 to 50 years old; and
4. (d)
   Within two months, the split will develop into a permanent separation, resulting in large dead limbs dropping and the tree’s demise.^[2]

6. [6]
   Section 73 establishes general matters that I must also consider, including the location of the trees in relation to the boundary and any premises, fence or other structure affected by the location of the trees,^[3] and any risks associated with the tree in the event of a cyclone or other extreme weather event.^[4] The matters prescribed by section 73 do not suggest that each matter must be given equal weight, but balanced.^[5]
7. [7]
   The tree is three metres from the neighbours’ side boundary fence and has a canopy spread of 15 metres,^[6] meaning it hangs over the house and garage of the neighbours’ property. The consultant reported:

The proximity of the large ironbark near a dwelling and adjacent to the applicant’s house highlights the dangerous risk factor and extent a large tree in this condition will cause to life and property in the foreseeable future…

As the seasons head into summer, the SES is warning home owners to be prepared and remove any hazardous limbs, trees, etc. before the storm season approaches. This highlights the extreme necessity to act now to prevent any disaster and mitigate the dangers associated with unsafe trees by having them removed from the area.[7]

8. [8]
   The consultant findings are corroborated by various photographs showing a large split in the tree trunk.
9. [9]
   The primary concern is the safety of any person.^[8] Upon considering all these matters, I am satisfied that the tree is likely to cause serious injury or damage because of its large size, poor condition and substantial overhang onto the neighbour’s property in an area where the house and garage are located.
10. [10]
    I am therefore satisfied that an order is necessary for the tree to prevent serious injury to any person and serious damage to property on the neighbours’ land.

What are the appropriate orders?

11. [11]
    Because I have found that the trees is likely to cause serious injury or damage, I may make orders to prevent serious injury to any person,^[9] or to remedy, restrain or prevent serious damage to the neighbours’ land.^[10]
12. [12]
    When considering orders that are appropriate, the Tribunal is guided by the requirement that ‘a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved’.^[11] However, this is subject to the requirement that the primary consideration is the safety of any person.^[12]
13. [13]
    The consultant recommended:

In order to prevent any possible loss of life or property, it is recommended that the dangerous imposing nature of the unsafe ironbark tree be removed to reduce the serious risk factor associated with mature trees in this condition.^[13]

14. [14]
    This is corroborated in a written statement from an arborist who inspected the tree in January 2018:

[The tree] is too dangerous for my tree climbers to climb and I would need to use a crane or an elevated work platform to remove it from the property.^[14]

15. [15]
    Based on this evidence, I am satisfied that an order to remove the tree is the only appropriate recourse to ensure the safety of any person.
16. [16]
    A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.^[15] I am satisfied that because Ms Barker is the tree-keeper and has failed to properly maintain her tree resulting in it becoming a hazard, it is appropriate that she is responsible for the costs of its removal.

Orders

17. [17]
    For these reasons, the Tribunal orders that:

1. (a)
   Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the Eucalyptus drepanophylla tree at her own cost within 30 days;
2. (b)
   The removal of the Eucalyptus drepanophylla is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3;
3. (c)
   Jennifer Barker will arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost; and
4. (d)
   The removal of the Eucalyptus drepanophylla and the grinding and removal of its stump are to be carried out within 30 days of this Order.