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Pawlyszyn v Dalton QCAT 333
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Pawlyszyn v Dalton & Anor  QCAT 333
BRADLEY PAUL PAWLYSZYN
JORDAN LEONARDO DALTON
PETER ANTHONY HANSEN
31 October 2019
24 September 2019
Member Dr Collier
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether damage caused to neighbouring property – whether severe obstruction of sunlight to a window or roof of neighbour’s dwelling – whether severe obstruction of a view – whether substantial, ongoing and unreasonable interference – compensation for damage
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), Chapter 3, Div 4 Part 5 Chapter 3, s 45,s 46, s 48, s 52, s 56, s 65(c)(i), s 66, s 66(5)(f), s 73, s 74, s 75
REASONS FOR DECISION
- The Applicant, Mr Pawlyszyn, resides at 24 Willis St, Gordon Park, Queensland and the Respondents, Messrs Dalton and Hansen reside next-door at 22 Willis St. The Applicant has resided in 24 Willis St for approximately 7 years.
- The Respondents have resided in their house for approximately 10 years, although in 2014 they had the then existing single-storey house demolished and a new double-storey house built on the site. This property has been landscaped to include a copse of bamboo on the western edge of the property adjacent to the Applicant’s house.
- The Applicant objects to the presence of the bamboo copse because he says it has caused damage to his house, sheds husks and other material into his property and pool, restricts natural light into his house, and obscures the view that he enjoyed before the bamboo was planted.
- As a result of the damage claimed, the Applicant seeks the following remedies:
- The removal of the trees (the bamboo);
- Compensation for damage to the Applicant’s house and property in the amount of $16,420.96;
- Compensation for damage caused by the unauthorised drilling of holes in the Applicant’s property in the amount of $2,864.00; and
- Such other orders as the Tribunal believes just.
The statutory framework
- The legislation relevant to this issue is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’), in particular Chapter 3 dealing with trees.
- Section 45 of the ND Act defines, for this purpose, what constitutes a tree. Quite clearly, bamboo, although in fact a grass, not a tree, is a tree for the purposes of the Act.
- There is no doubt that, in this case, the Respondents are tree-keepers for the purpose of the ND Act and are responsible for any consequences that flow from that.
- Land is affected by a tree at a particular time if:
- any of the following applies—
- branches from the tree overhang the land;
- the tree has caused, is causing, or is likely within the next 12 months to cause—
- serious injury to a person on the land; or
- serious damage to the land or any property on the land; or
- substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
- the land—
- adjoins the land on which the tree is situated; or
- would adjoin the land on which the tree is situated if it were not separated by a road.
- Although a breach of the following responsibilities of a tree-keeper does not, of itself, give rise to civil liability, the ND Act says that:
- A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.
- A tree-keeper is responsible for ensuring that the tree does not cause—
- serious injury to a person; or
- serious damage to a person’s land or any property on a person’s land; or
- substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
- If the Tribunal is satisfied that an applicant is entitled to a remedy, it may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land:
- to prevent serious injury to any person; or
- to remedy, restrain or prevent—
- serious damage to the neighbour’s land or any property on the neighbour’s land; or
- substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
However, (b)(ii) above applies to interference that is an obstruction of sunlight or a view only if—
- the tree rises at least 2.5m above the ground; and
- the obstruction is—
- severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
- severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
- In making decisions about an application the Tribunal must take into account specific matters raised in the ND Act.
- As well as making orders about a tree the Tribunal may make an order requiring the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land.
The Applicant’s evidence
- The Applicant asserted that some bamboo had been planted on the Respondents’ side of the boundary either when he first occupied his house or by mid-2012.
- The Applicant testified that he saw no management of the bamboo, such as cutting it to reduce its height, until approximately June 2014. By this stage the bamboo was approximately 8.5 m in height.
- Apart from the pruning in June 2014, the Applicant said that there had been no further pruning performed until just before the arborist was engaged a short time before the hearing. By this stage the bamboo had reached a height well over 11m and was affecting the Applicant’s property by:
- Dropping material from the bamboo that littered the Applicant’s property and swimming pool;
- Greatly diminished natural light into the Applicant’s upper storey windows;
- Obstructed views from the Applicant’s upper storey windows;
- Inhibiting light and airflow onto the eastern external wall of the Applicant’s house leading to the build-up of mould on and other damage to the external wall cladding;
- The bamboo physically rubbing on the eastern external wall and the roof of his house; and
- The bamboo physically rubbing on the roof of the Applicant’s al fresco area at the southern end of his house.
- The Applicant tendered photographs that showed husks and other material dropped by the bamboo copse into his property, in particular into his pool.
- The Applicant also tendered photographs that demonstrated there were occasions over several years when the height and thickness of the bamboo was sufficient to exceed the height of his house’s roof. There were some photographs showing bamboo coming through the window and into one of the upstairs rooms of his house.
- The Applicant also expressed concern in relation to actions or mooted actions by the Respondents, including:
- The drilling of holes in the Applicant’s garage wall which site on the property boundary;
- The attachment of the Respondents’ pool fence to the Applicant’s pool wall; and
- The possibility of interference with electric wiring used in regard to the Applicant’s pool.
- The Applicant said that he had a pre-purchase building inspection report prepared ‘… and there was no faults or dramas, or any sort of defects found with the property on any side, internal or external …’.
- The Applicant attributes the presence of the mould on his house entirely to the presence of the bamboo. He said:
Now, we have four sides to a property. Three sides of the property are unaffected. The damage to the house and the green colouring of the house and the mould and mildew, etcetera, starts and finishes where the bamboo starts and finishes.
- The Applicant also attributes blockages in his spouting and downpipes to material shed from the bamboo.
- Malcolm Russell of Salt Constructions Pty Ltd was called as a witness by the Applicant. Mr Russell prepared a quote dated 3 May 2018 for the Applicant for ‘Repair work on the northern side of the residence, cleaning and painting the exterior cladding’.
- Mr Russell does not hold any trade qualifications, but appeared to be experienced in the building trade, in assessing work, and in quoting for work.
- In his oral evidence Mr Russell made the following points:
- On the day of his first inspection bamboo was rubbing against the Applicant’s house;
- It was dark under the bamboo canopy on the eastern side of the Applicant’s house;
- While it is common for mould and mildew to form on houses in Queensland, he formed the view that the lack of airflow and light did not permit the eastern side of the Applicant’s house to dry;
- Mould and mildew can occur on fibro-cement cladding, but these usually dry quickly from breeze and sunlight;
- There may have been mould above the height of the bamboo, but he could not be sure.
- Mr Russell confirmed that he prepared a quote dated 3 May 2018 for repair to the damage that was evident on the eastern external wall of the Applicant’s house in the amount of $16,420.96. He said that 80% of the cost of this quote was for the special scaffolding required to work above the Applicant’s swimming pool and the painting.
- When speaking about the damage that he observed on the Applicant’s house, Mr Russell was asked and replied as follows:
Q: It – the rotting of these batten screws and – battens and FC sheeting – and potential damage to the FC sheeting, is that a common occurrence in places that aren’t in these damp and wet conditions?
A: No. Not at all.
A: Not at all. Because it – so long as there – there’s opportunity for air movement and warmth and sun – when it rains over here, it rains, but it dries out very quickly.
- Andrew Forward, a registered builder with 26 years’ experience was called as a witness by the Applicant. Mr Forward evidently possessed considerable experience on the building industry, having built or supervised the building of 300-400 houses over 15 years.
- Mr Forward conceded that he was ‘a very good friend’ of the Applicant.
- Mr Forward offered the following opinions:
- The Applicant’s garage wall facing the Respondents’ property appeared to have been punctured by holes that were aligned in such a way that something had been affixed to the wall. These holes were not weep holes and had been done after painting; and
- The Applicant’s pool wall facing the Respondents’ property had been punctured by holes that appeared to have been used to hold a fence or other structure in place.
- In relation to these and other matters, Mr Forward offered the following opinions during cross-examination:
- There were six holes in the pool wall;
- If the holes on the garage wall constitute a fire risk they probably should have been remedied by the Applicant, and the holes constitute no structural compromise;
- Mould on the garage wall is less pronounced because of the pitch of the roof of the Applicant’s house; and
- The problem of the mould on the eastern wall is primarily due to a lack of ventilation arising from the bamboo; and the presence of the garage and pool have little effect.
- Mr Forward said, of the Applicant’s house: ‘It would appear to me that the house is in good standing and in good repair.’
- When asked if it appeared that the battens on the eastern wall of the Applicant’s house had deteriorated, Mr Forward answered ‘Yes, it’s certainly looking that way, yes.’ He went on to say:
… from where I’m standing and looking at the amount of mould and mildew that appears to be on that wall, there’s a direct relationship of being constantly wet and not being able to dry out and then prevented from doing that. And then that moisture, as in any property that is like that, that moisture will then, in time, react with – with products, whether it’s nails or paint or render.
- When asked whether the other sides of the Applicant’s house showed similar deterioration to the eastern side, Mr Forward replied, ‘No. Not at all.’
- When asked about whether the spouting and downpipes and similar drainage located against the eastern wall were conventional, or whether there was anything that he saw that caused him concern, Mr Forward replied:
Nothing out of the ordinary. I – I felt – at the time that I was asked to make an inspection, I was asked to look at certain areas.
Anything else I didn’t necessarily look at. But, again, nothing jumped out at me to say, “that’s wrong, badly”.
The Respondents’ evidence
- The Respondents reject any liability on their part for the mould build-up evident on the Applicant’s eastern external wall and southern rooftop; and deny they are responsible for the holes evident in the pool wall and the garage wall.
- The Respondents said that bamboo had been planted along the boundary before the Applicant purchased his house, first in 2009, and more in 2011.
- Advanced Arborists pruned the bamboo on the instructions of the Respondents on 11 July 2019. As a result of this pruning the Respondents said that their photographs show that, even at its worst, the bamboo does not obstruct sunlight to the Applicant’s living room windows and backyard, and that the east side of the Applicant’s house receives at least two hours of sunlight daily.
- The Respondents said that the roof of the southern end of the Applicant’s house, which also suffers from an accumulation of mould, is in permanent shade and receives little or no sun for most of the year.
- The Respondents also made the following points:,
- They have at all times maintained the bamboo hedge in a reasonable condition;
- The Applicant failed to perform any or sufficient cleaning and maintenance of the areas around his premises over the relevant 8-year period;
- The presence of a heated swimming pool at the base of the eastern side wall of the Applicant’s house causes evaporation and contributes to moisture build-up;
- The Applicant’s house has been poorly designed including a garage on the common boundary in front of a narrow space containing the swimming pool that contributes to restricted flow-through ventilation;
- The Applicant’s house has a defective or inadequate spouting and drainage system and downpipe affecting the eastern wall of his house leading to rainwater contributing to the mould build-up;
- The Applicant’s house has poorly constructed horizontal building elements that allow the accumulation of moisture and lack of protection from rain that contributes to the mould build-up; and
- The poor quality of the paint preparation and paint quality used on the eastern external wall of the Applicant’s premises has contributed to the deterioration of the wall and the mould build-up evident on that wall.
- The Respondents asserted that the witnesses for the Applicant should not be relied upon on the basis that they have a commercial conflict of interest in this matter.
- The Respondents said that ‘… we have maintained the bamboo to a reasonable level within the requirements of the Act.’ In support of this claim the Respondents submitted a receipt from Advanced Arboriculture for the following work done on or about 11 July 2019:
Bamboo trim back 1m from fence at ground and trim tops down to 1m below gutter. Clear all over hang neighbouring yard.
- The Respondents requested that the Tribunal make the following order:
The Applicant perform reasonable maintenance of their property at their own expense, to mitigate the Safety Hazard as discussed in the Building Inspection Report. As recommended, Specialist Mould Remediation Specialist and Licenced Plumber should be contacted to both resolve and prevent this Safety Hazard in the future for all the neighbours in the area. [sic]
- The Respondents relied for many of their assertions on a report prepared by Jim’s Building Inspections prepared by Dugald Young following an inspection by him on 16 September 2019. Mr Young is a QBCC-licenced residential building inspector.
- Mr Young’s report dealing with the Applicant’s property was prepared from his visual observations taken from the Respondents’ property. He did not have access to the Applicant’s property. His observations include adverse comments about the spouting and drainage arrangements, in particular its capacity to handle the volume of water presented during rain. He said:
… roof plumbing that appeared to be insufficient in capacity and was not sufficient to adequately managing [sic] the volume of rainwater that it is required to drain.
This was evidenced by the excessive staining and the concentrated mould accumulation associated with the upper level roof guttering and down pipe location.
- There were no calculations in the report to support this observation about the capacity of the spouting and drains.
- Mr Young also made adverse observations about:
- The mould and grime on the eastern external wall of the Applicant’s house, noting that it required cleaning; and
- Rusting fittings, excessive water staining, and noticeable cracks and gaps between materials.
- The Respondents said that the bamboo provides them with visual privacy because the upper-storey windows of the Applicant’s house overlook the Respondents’ property, and acts as a useful noise barrier given the proximity of the parties’ rear decks.
- After complaints by the Applicant the Respondents cut back the bamboo in 2013 ‘…to a level that was lower than we would prefer…’.
- The Respondents disagreed that the Applicant has lost any view as a result of the bamboo, rather ‘…the “view” that the applicant previously claims has been lost irrevocably by the construction of our house…’
- The Respondents say that the bamboo does not extend over the Applicant’s land by 50cm or more and, therefore, does not invoke the ND Act. They say, further:
- They regularly prune the bamboo;
- The Applicant’s photographs are misleading and indicate that bamboo overhangs his property when it does not; and
- The Applicant’s photograph 23 shows the bamboo to overhang 20-30cm up to 2.5m with no overhang above that.
- The Respondents also state that they regularly maintain the bamboo, removing bamboo from a significant height each year, and maintain the bamboo in between major prunings.
- The Respondents were concerned that the Applicant had not maintained his house properly by regular or periodic cleaning of the external surfaces.
- The Respondents said that the cause of any mould on the Applicant’s eastern wall arises principally from the shading of the Respondents’ house rather than the bamboo.
- The Respondents also suggest that the presence of the pool at the base of the eastern wall contributes to the moisture that causes the mould development. This claim was clearly stated by Dr Hansen when he asked Mr Russell:
And a pool that’s specifically built down a one and a-half metre space at the side of a house, with a garage in front of that, that doesn’t allow any through flow of air, do you think that could potentially increase the moisture within that area?
To which Mr Russell responded:
- When asked by Dr Hansen if, given regular episodes of water overflowing from the downpipes could cause damage, it would be wise to modify this prior to rectifying the damage to the eastern side of the house, Mr Russell responded: ‘it would be part of – of our professional assessment when we were on the job to advise if we thought it was inadequate at the time.’
- In a more detailed response to questions from Dr Hansen Mr Russell made the point that he did not undertake a scientific analysis of why the mould appeared on the eastern side of the house, but to prepare a quote to remedy the problem. He went on to say, ‘The issue that we had at the time was the bamboo needed to be cut before there was any point in doing anything to the place.’
- The Respondents said that the bamboo is not the cause of any mould on the southern roof because that portion of the Applicant’s property receives little sun in any event. In this regard the Dr Hansen said:
what I’m saying is that this is the southern aspect of the house. It gets no light for months in winter and that is the reason why there’s algal growth, which is actually more severe on the southern aspect of the house.
- The Respondents suggested that the damage to the eastern external wall of the Applicant’s house arises from the use of inferior products or the failure properly to finish the work such as filling nail holes before painting.
- Dr Hansen, when commenting on the arborist’s report made the following observation:
I don’t think I’m actually denying that the algae is associated with the bamboo. But my argument is that, there are a multitude of other factors that have allowed that to grow on the eastern side of the property. A multitude of factors why it’s growing on the southern side of the property, and it’s a complete lack of maintenance to the side of the house as to why that’s accumulated.
- Although the Respondents repeated the arborist’s assertion that the bamboo could grow to 12m height, Dr Hansen conceded that:
If I hadn’t maintained the bamboo, I agree, it would be 15 metres high. But it’s not. It’s always been kept down to a reasonable level to allow sunlight into the upstairs windows.
- The principal purpose of the bamboo is privacy. Dr Hansen said:
… the reason why I planted the bamboo in the first instance prior to the Pawlyszyns moving in is that, for me, the side of their house with every window of their house looking directly down onto my property is an unreasonable, sort of, thing. For privacy, I think that it’s reasonable for you to have a screen or a hedge to give my backyard and my house privacy.
- Although it has the further purpose, as Dr Hansen explained:
I think I have a right to construct a garden that gives me a sort of tropical feel, which is what my garden is. And to have a sheer wall nine metres high with windows overhanging is not a view I think I should have to maintain from my side of the property.
- Dr Hansen asserted that it is not the bamboo that limits light to the eastern side of the Applicant’s house:
… the bamboo does not limit the light at all onto the side of their property. The light is limited by my house and by the arc of the sun, and so they get limited morning light. And I think that’s really the cause of the problem.
- Dr Hansen observed that the builders agreed that the bamboo is closer to his house than the Applicant’s, yet does not suffer from mould because his paint is of superior quality to that of the Applicant’s and he regularly cleans his house.
- The Respondents made the point that the Applicant has never cleaned the side of his house affected by the mould during the period that it has been apparent. The implication being that a prudent owner would have cleaned it.
- The Respondents also said that mould to the southern roof of the Applicant’s house is caused largely by the lack of sunlight during the winter months – the same as the Respondents’ experience.
- The Tribunal ordered the parties to contribute to an independent arborist’s report which was completed by Andrew Stovell and filed on 12 December 2018. The report by Mr Stovell appears to be well reasoned and I rely on this report as correct in regard to the points it makes.
- The following observations made by the arborist in his report are most relevant to this dispute:
- Despite the recent removal of 40 culms ‘It was easy to infer from their location and the photographs within the file that they [bamboo culms] have been against the fence and also cover the Applicant’s yard. Paint on the walls of the Applicant’s house has been discoloured. It’s a light green algae associated with the bamboo. It was only found on the water-based panel board section and chamfer board of the home near the bamboo and not on the opposite side of the home or on the oil-based paint areas.’
- ‘The bamboo being pruned just recently meant that there was good light entering the [upper storey] rooms. Excessive leaf drop is obvious due to the close proximity [of the bamboo culms] …’
- ‘The photos below [taken by the arborist] at the time of the visit show a row of bamboo that has been thinned and in a state of care that was reasonable, however some culms were overextending and in moderate wind soon will be rubbing against the house. Some bamboo over the garage was slightly rubbing against the garage.’
- ‘In the Tree Assessor’s opinion bamboo requires more consideration for the neighbours if to be planted along fence lines.’ [sic]
- ‘[The Respondents’ bamboo] in the author’s opinion is a vigorous species and it can reach 12 metres [in height] in the right environment with favourable conditions.’
- ‘[The Respondents’ bamboo] is a species of bamboo that the Tree Assessor would categorise as containable but is usually outside the limits of a householder unless a gardener is employed regularly.’
- ‘The bamboo is approaching maturity and the growing cycle can occur 3 times a year.’
- ‘The bamboo is planted too close to the boundary (within 1 metre) and the issue is the below ground rhizome will keep expanding inching closer to the fence line with each new growth event.’
- ‘The sheaths [bamboo litter] are a natural product however take too long to mulch down and in the Tree Assessor’s opinion, requires to be collected and removed from the garden.’
- ‘From inspection there are clear signs of paint staining from algae associated with this bamboo…’
Assessment of the evidence
- The Applicant’s claims should be considered in two parts:
- The presence of the bamboo and the mould and related damage on the eastern side of the Applicant’s house; and
- The holes in the Applicant’s pool wall and garage wall on the Respondents’ side of the boundary.
- The issue of the bamboo and the mould will be considered first.
- First, a legal issue. The Respondents raised the effect of ND Act s 65(c)(i) which invokes a remedy only if ‘… the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary.’ However, this requirement only applies ‘… to the extent the issue relates to the land being affected because branches from the tree overhang the land.’ In the case here the bamboo has an effect greater than that caused by the bamboo intruding 50cm or more over the Applicant’s property boundary. As a result, the remedies available in s 66 of the ND Act remain alive. In any event, the evidence discloses that the bamboo brushed against the Applicant’s house, in which case the condition for application of the section has been satisfied.
- There is no doubt that for an extended period of time the Applicant has suffered from the presence of mould on the eastern wall of his house.
- I am satisfied that the evidence disclosed that the Applicant has suffered from the presence of litter shed by the bamboo over many years causing him substantial, ongoing and unreasonable interference with the use and enjoyment of his property. This was not seriously disputed by the Respondents in either their oral or written arguments.
- The Applicants further claimed that the bamboo obstructed the view from their second storey window; overhung and brushed against their roof, eastern wall, and southern roof; and was the direct cause of the mould that developed on the eastern external wall of their house. Each of these assertions will be tested in turn, but first it is necessary to analyse what the evidence disclosed about the extent of the bamboo, that is its height, density and overhang, over the relevant time frame.
- The Applicant said that the bamboo had been trimmed on only three occasions since he purchased his house: in 2013 from a height of 15 m to 8-10 m; the removal of some shoots in March 2018; and shortly before the hearing.
- The Applicant also said:
- The Applicant said that in order to maintain the bamboo he has had to:
- ‘Cut it back every 6-8 weeks in summer months/10-12 weeks in winter months to stop it banging on my roof…’;
- ‘Clean my pool every 2-3 days in normal weather and daily in windy weather to remove debris/leaf litter’; and
- ‘Clean overflowing gutters of the debris/leaf litter.’
- The Applicant submitted a number of photographs to support his contention that the bamboo had been permitted to grow to an unreasonable height. Photographs taken between March and May 2019 show the bamboo at or above the second storey roof of the Applicant’s house, dominating the upper storey window view, entering the second storey window, and overhanging the Applicant’s house and pool.
- Although the Respondent Dr Hansen stated several times in oral evidence that he maintained the bamboo on a regular basis, there was no evidence given in the nature of a schedule of maintenance, nor details of the frequency with which maintenance was performed. On balance I have concluded that the Respondents have not undertaken regular maintenance of the type required properly to maintain the bamboo copse, in particular in light of the arborist’s view that growth spurts occur at least three times in each year.
- In summary, on the evidence before the Tribunal I am satisfied on the following matters:
- Bamboo of the type involved here can readily grow to a height of 12m and, on occasions in this case has grown to this height or more;
- Bamboo of the type here has three growth spurts each year and requires regular maintenance;
- The bamboo has been maintained by the Respondents on an irregular basis and to irregular heights;
- The Applicant has suffered substantial, ongoing and unreasonable interference to the use and enjoyment of his property as a result of the presence of the bamboo in respect of:
- Loss of natural light to upstairs rooms;
- Shedding of material such as husks from the bamboo in significant quantities into his property, in particular into his pool;
- Growth of mould on the eastern external wall of his house; either that would never have occurred, or was exacerbated by the overbearing presence of the bamboo; and
- The Applicant has suffered serious damage to his house arising from the presence of the bamboo copse causing the presence of mould.
- I am not satisfied that the Applicant has suffered from any significant loss of view from the windows on the eastern side of his house. This conclusion is based on the very limited views otherwise available from these windows because of their placement.
- In respect of the mould present on the southern end of the roof of the Applicant’s house above the al fresco dining area, I conclude that this may be due, in part, to the presence of the bamboo, but is likely to occur naturally in any event because of the lack of regular sun to that area. As a result, I am not satisfied that the bamboo is the principal cause of the mould on this roof.
- I have considered whether the actions of the Applicants have contributed to their loss and damage.
- The Respondents asserted that the Applicant failed to clean and maintain the external surfaces of his house properly, and certainly once the mould became apparent. This was put to the Applicant in the following exchange with the Bench:
MEMBER: … it’s being put by the respondent that you haven’t taken any action to try and remove the algae – the mould that was on there, and it may have – you had a duty basically to mitigate your loss by doing that. Is there any reason you didn’t do that?
MR PAWLYSZYN: That’s not true at all. We’ve had the house washed on a number of occasions and the mould and mildew, the green algae – whatever you call it – it’s literally back within weeks. And this is, I suppose, what’s – I think we might have alluded to before – Mr Hansen has absolutely no idea what we do with our house or don’t do with our house. He’s speculating entirely.
- I considered whether there has been a contribution to the loss and damage suffered by the Applicant arising from his failing to undertake maintenance of his house by removing offending mould from the eastern external wall. I am satisfied that there has been no contribution by the Applicant to the loss and damage he has suffered resulting from a lack of maintenance.
- I note that Mr Russell of Salt Constructions said that because aluminium scaffolding was needed due to the scaffolding having to be erected in the Applicant’s pool and work performed above the pool, 80% of the remediation cost could be attributed to the scaffolding and painting.
- The Respondents claimed that the spouting and drainage provided on the eastern side of the Applicant’s house was inadequate for the volume of water delivered from the roof during rain. There are two types of stains that are visible from the photographic evidence: black mould; and green mould. Some of the black mould is evident, particularly at higher levels of the eastern side of the Applicant’s house and black mould staining to vertical surfaces on the east and the north, mostly at higher levels. This suggests that there are two types of mould in existence.
- The green mould is most clearly evident on the Applicant’s house on the eastern external wall at levels consistent with the height of the bamboo. Assessing this fact, in conjunction with the arborist’s report, on which I place considerable weight, I am satisfied that, on the relevant test, the cause of the green mould complained of by the Applicant arises because of the presence of the bamboo.
- I considered whether the presence of the swimming pool along the side of the Applicant’s house contributed to the mould and related damage. I find that the pool, although having heating facilities, was not used as a heated pool during the relevant period. There was no evidence adduced that would permit me to conclude that evaporation from the pool contributed to the damage to the eastern external wall of the Applicant’s house.
- Turning to whether the Respondents are entitled to retain the bamboo because of the benefit its presence confers upon them. The Respondents argue three principal points for retention of the bamboo:
- It provides them with privacy;
- It offers a visual barrier to the Respondents’ view of the Applicant’s stark walls; and
- It is conducive to the tropical garden feel of their property.
- The Respondents averred that they have, can, and will maintain the bamboo at a height, in a manner, and at a distance from the boundary fence, that will not affect the amenity of the Applicants.
- For the reasons described above, I am not satisfied that the Respondents have maintained the bamboo in a reasonable manner over the seven or so years involved, and that the bamboo has regularly adversely affected the amenity of the Applicant’s property. I am not confident that an order of this Tribunal will be sufficient to ensure that the Respondents maintain the bamboo in an adequate way given the plant’s regular growth and the Respondents’ conduct to date. Nor would an order permitting the bamboo to remain resolve some of the continuing problems arising from other factors such as the regular shedding of material from the bamboo into the Applicant’s property.
- In respect of being a visual barrier, I am satisfied that there is a possibility that the Applicant could, if he was so minded, go up to the upper storey window in his house and view parts of the Respondents’ house. However, overlooking the Respondents’ house in this way is not possible except when a viewer is very close to the window, something unlikely to occur in the normal course. Indeed, occasional overlooking is a hazard in all cases where houses have been erected in such close proximity as these two, and some degree of overlooking must be accepted.
- The visual and horticultural amenity enjoyed by the Respondents by the presence of the bamboo has to be weighed against the significant damage and loss of amenity suffered by the Applicant. In this case, the Applicant has suffered an interference with his use and enjoyment of his property that is not reasonable or acceptable, and is not outweighed by the Respondents’ benefit of having it retained.
- There are two options open in terms of appropriate orders concerning the bamboo: an order to destroy the bamboo in its entirety; or an order requiring that the bamboo be managed and restricted to a specific height. As the ND Act says: A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
- Based on the arborist’s assessment that the bamboo in this case is a vigorous species that requires pruning at least three times each year, my conclusion that the Respondents have not maintained the bamboo properly throughout its life, the continuing shedding of litter from the bamboo whatever its height, and the difficulty of enforcing an order limiting the height of the bamboo, it is not a feasible option to allow the bamboo to remain. It needs to be removed.
- In reaching this conclusion I have considered the matters prescribed in ss 73, 74 and 75 of the ND Act which I am obliged to take into account in my decision. Apart from my observations above, no other matters prescribed by these sections affect my decision.
- I turn now to the holes that exist in the pool wall and the garage wall about which the Applicant complains.
- First, the evidence is not sufficient to persuade me that, on the balance of probabilities, these were done by the Respondents.
- Even if the holes had been made by the Respondents, the jurisdiction of the Tribunal in respect of such damage has to relate to a matter which the Tribunal may lawfully decide. In this case, the subject holes would have to relate to the principal cause of action concerning the bamboo complained of by the Applicant, but they do not.
- The evidence is not sufficient to link the holes complained of by the Applicant with his complaint concerning the bamboo. Because the two issues are not sufficiently linked (such as the holes were created for the purpose of restraining the bamboo, or relate to a dispute concerning fencing), the Tribunal cannot adjudicate on such damage. Loss and damage resulting from the holes may be based on an action in tort or trespass or similar, a complaint that this Tribunal cannot hear.
- Further, it appears that the holes may relate to issues between the same parties relevant to an earlier fence dispute. If this is the case, as it appears, then concerns about the holes should have been raised at the earlier hearing; matters concerning an issue already decided by the Tribunal cannot be re-litigated.
- The Applicant said that the holes relate to attempts by the Respondents to restrain the bamboo culms from drooping over his property. The Applicant said that he lost the photographic evidence supporting this claim. The Respondents deny that they had drilled holes in the pool wall and garage wall for this or any other purpose.
- Based on this summary of the evidence I cannot be satisfied on the relevant test that the Respondents are liable for the holes, or of the connection between the holes (if they were drilled by the Respondents) and the subject of this application. Therefore, the claim for loss and damage by the Applicant arising from the holes must be dismissed.
- The presence of the bamboo copse constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s property by significantly reducing the amenity of the Applicant’s house and property in terms of access to natural light, and from the dropping of material and litter from the bamboo.
- The mould present on the eastern external wall of the Applicant’s house attributable to the presence of the bamboo constitutes serious damage to the Applicant’s property.
- The Applicant has not contributed to the loss and damage he has suffered from the mould and other damage to the eastern external wall of his house.
- The serious damage to his property and the interference with the use and enjoyment of his property suffered by the Applicant outweighs the benefits to the Respondents in retaining the bamboo. Therefore, the bamboo should be destroyed and not allowed to regrow.
- The holes in the pool wall and garage wall have not been proven to be the result of the conduct of the Respondents, and are not relevant to the present proceedings dealing with trees, and must be dismissed.
- The Tribunal makes the following decision in this matter:
- All the bamboo planted along the western boundary of the Respondents’ property must be entirely destroyed by them at their cost by 30 November 2019.
- The Respondents are to pay the Applicants $16,420.96 by 30 November 2019.
- No order is made in respect of costs.
 The bamboo is a variety of clumping bamboo: bambusa gracilis.
 ND Act, s 48.
 Ibid s 46.
 Ibid s 52.
 Ibid s 66.
 Ibid, Chapter 3, Part 5, Division 4.
 Ibid, s 66(5)(f).
 Transcript 1-34, lines 13-17.
 Ibid 1-13, lines 27-30.
 Ibid pp 1-14 – 1-15.
 The quote was intended to refer to the eastern side of the house, not the northern side.
 Transcript, 1-33, lines 4, 5.
 Ibid, 1-33, lines 24-30.
 Ibid, 1-65, lines 13, 14.
 Ibid, 1-65, lines 16-27.
 Ibid, 1-65, lines 31, 32.
 Ibid, 1-66, lines 11-17.
 Respondents’ Statement of Evidence filed 19 September 2019, para 3.
 Ibid para 4.
 Respondents’ Introductory Statement, undated, Exhibit 3.
 Respondents’ Statement of Evidence filed 19 September 2019, concluding remarks, p 7, para 3.
 Ibid, concluding remarks, p 7, para 1.
 Ibid p 8.
 Jim’s Building Inspection report dated 16 September 2019, p 12.
 Ibid, pp 14, 15.
 Respondents’ Response to application for a tree dispute, response to Question 35.
 Ibid, response to Question 5.
 In this case activating ND Act s 65(c)(i).
 Respondents’ Response to application for a tree dispute, response to Question 8.
 Ibid, response to Question 20 and Question 26.
 Transcript pp 41-43.
 Ibid, 1-48, lines 13-15.
 Ibid, 1-48, lines 41, 42.
 Ibid, 1-50, lines 19-39.
 Ibid, 1-47, lines 24-27
 Ibid, 1-93, lines 12-17
 Ibid, 1-106, lines 43-45
 Ibid, 1-108, lines 30-34
 Ibid, 1-121, lines 3-6
 Ibid, 1-109, lines 37-39
 Ibid, 1-114, lines 31-44.
 Arborist’s Report filed 12 December 2018. None of the pages nor paragraphs in the report are numbered.
 Statement of Bradley Paul Pawlyszyn dated 29 August 2019, para 13 (in relation to the first two points)
 Ibid, para 6.
 Ibid, para 7.
 Ibid, para 11(f).
 Transcript 1-143, lines 30-39
 ND Act, s 72
- Published Case Name:
Bradley Paul Pawlyszyn v Jordan Leonardo Dalton and Peter Anthony Hansen
- Shortened Case Name:
Pawlyszyn v Dalton
 QCAT 333
31 Oct 2019