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Page & Anor v Montessori Children's House Ltd. & Anor[2019] QCAT 9

Page & Anor v Montessori Children's House Ltd. & Anor[2019] QCAT 9

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Page & Anor v Montessori Children’s House Ltd & Anor

[2019] QCAT 9

PARTIES:

BRADLEY PAGE

(first applicant)

DERAL TANIL

(second applicant)

v

MONTESSORI CHILDREN’S HOUSE LTD

(first respondent)

BRISBANE CITY COUNCIL

(second respondent)

APPLICATION NO/S:

NDR027-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

17 January 2019

HEARING DATE:

4 December 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Montessori Children’s House Ltd as tree-keeper shall be responsible for and bear all costs of pruning the grey box tree near the dividing boundary with the applicants’ land and pool twice each calendar year.
  2. The pruning shall occur during school recess periods in or about April and October each year.
  3. The work shall be undertaken by a Level 3 suitably qualified arborist with appropriate insurance cover under the supervision of a Level 5 suitably qualified arborist at the cost of the tree-keeper.
  4. Should that work not be completed as ordered the applicants shall be entitled to have the work performed by a Level 3 suitably qualified arborist with appropriate insurance cover under the supervision of a Level 5 suitably qualified arborist.
  5. Should the applicants be required to carry out the work in default of it being done by the tree-keeper as ordered they shall be entitled to have their suitably qualified arborists enter the tree-keeper’s land to carry out the work subject to giving 14 dayswritten notice of that intention to the tree-keeper at the tree-keepers last known address.
  6. The costs incurred by the applicants engaging a Level 3 and Level 5 suitably qualified arborist to do the work in default of the tree-keeper shall be recoverable by the applicants from the tree-keeper as a debt without further notice being required to be given.
  7. The tree-keeper shall ensure the subject tree’s lateral canopy extends no further than 2 metres over the applicants land following pruning.
  8. The tree-keeper and any suitably qualified arborist engaged by the tree-keeper to perform the work shall be entitled to enter the applicants land at 2 Birdwood Terrace, Auchenflower subject to 48 hours written notice being given of the work to be done.
  9. A suitably qualified arborist shall be someone with a qualification under the Australian Qualifications Framework (AQF) in arboriculture.
  10. These orders shall remain in force and effect for a period of 10 years from the date hereof.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a large

tree intrudes with leaf canopy and roots into neighbour’s land – where claim made that damage being caused by roots to adjacent pool structure – where engineering evidence given – where engineer unable to say whether pool structure actually damaged by roots – where engineer unable to say whether damage will be caused to pool structure within 12 months – where severe pruning of tree undertaken prior to hearing where expert arborists agreed regular pruning would prevent shedding of leaves or twigs into the pool area and the tree thereafter be unlikely to cause ongoing and unreasonable interference with the applicants enjoyment of their land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66(2)

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented by B Page

First Respondent:

Self-represented by A Simpson

Second Respondent:

Represented by W Manners

REASONS FOR DECISION

  1. [1]
    Mr Page and Ms Tanil live in a home in Auchenflower. The suburb is described as one of ‘tin and timber’ with a lot of trees in a pleasing suburban environment.
  2. [2]
    They live next to a child care centre, Montessori Children’s House (“Montessori”). There is a large grey box tree planted on the Montessori side of the dividing boundary which the applicants say should be removed. The applicants purchased their property in 2009 and the tree was already there. On the applicants’ side of the boundary and adjacent to and beneath the canopy of the tree is a swimming pool.
  3. [3]
    From 2013 the applicants tried to persuade Montessori to cut the tree down. The applicants were concerned that branches were falling onto their pool and their children were in danger and that the tree’s invasive root system was causing damage to the pool structure and its water pipes. The applicants offered to pay for the cost of removing the tree and also to install a block wall dividing boundary fence at their cost. The fence could not be built unless the tree was removed because the footings of the fence would significantly damage the tree’s root system and therefore its subsequent stability. The tree roots had damaged the dividing fence that was already in place.
  4. [4]
    Montessori refused both offers.
  5. [5]
    The applicants engaged an arborist who said it was impossible to inspect the lower part of the tree root system without invasive excavation to find out if the pool was being damaged. Given the natural lean of the tree and that it was by itself without the advantage of wind buffering afforded by other trees in a stand, his recommendation was that the tree be removed and replaced with a more practical and suitable species.
  6. [6]
    Montessori’s response was that the tree and pool had been in coexistence for 27 years and the tree had not caused any unreasonable interference or damage to the pool or the fence during that time such that they had breached any responsibilities they had as tree-keeper.
  7. [7]
    Despite the claim by Montessori the tree roots had not damaged the dividing fence. Montessori put the applicants on notice that the applicants had obligations as pool owners to ensure an adequate pool safety fence existed to prevent access of the pool by any of the Montessori children.
  8. [8]
    Montessori also complained to Brisbane City Council about the fence being an adequate pool fence.
  9. [9]
    The applicants constructed an additional pool safety fence around the pool within their property in response.
  10. [10]
    Montessori also complained to the Brisbane City Council about the applicants’ proposal to cut down the tree. The Council proceeded to make a vegetation protection order under the Natural Assets Local Law 2003 (BCC) in respect of the tree on 28 September 2016, on the basis that the tree facilitated retention of the historical and cultural values of the city of Brisbane.
  1. [11]
    The applicants commenced the subject proceedings in the Tribunal seeking an order that the tree be removed, but now wanting it at the cost of Montessori. The applicants make no claim for compensation.

Experts Conclave

  1. [12]
    A joint conclave of experts was held bringing together arborists engaged by the applicants and Montessori, as well as an engineer engaged by the applicants and an ecologist, Mr Manners, representing the Council. The experts produced a report in which they summarised the issues raised by the applicants as the existing or potential hazards and risks associated with tree safety (falling branches); the existing or potential damage to the applicants’ pool from the tree’s roots; and interference with the applicants enjoyment of their land.
  2. [13]
    The experts noted the Montessori arborist had conducted a ‘Class 2’ prune of the tree in April 2018 which involved removal of any dead, diseased or redundant growth down to 25mm in diameter at the branch collar. The tree stood 18 metres high and had a canopy spread of up to 11 metres, although it is unclear if that was before or after the prune in April 2018.
  3. [14]
    The experts agreed:
    1. (a)
      There was photographic evidence of past failures of primary and secondary branches of up to 5m in length;
    2. (b)
      Hazards associated with the canopy could be reduced by regular programed maintenance and/or hazard reduction pruning;
    3. (c)
      The risk of failure of the whole tree was low as the tree was otherwise structurally sound;
    4. (d)
      If regular pruning occurred, the shedding of leaves or twigs into the pool area was unlikely to cause ongoing and unreasonable interference with the applicants’ enjoyment of their land;
    5. (e)
      In relation to existing or potential damage to the pool from tree roots there was insufficient evidence available to confirm that the roots of the tree had caused or could cause within 12 months of the conclave damage to the pool’s pipe system or the pool structure itself and further investigation would be necessary to ascertain the location of structural and non-structural roots within the vicinity of the pool structure and assess whether the roots had impacted or were likely to impact in the future on the integrity of the pool.
    6. (f)
      Mr Clements the engineer said it was possible some damage had already been done to the pool pipes or shell and if that was the case it would be costly to rectify and possibly irreversible.

Additional Investigation

  1. [15]
    After the conclave on 13 September 2018 Mr Clements conducted a further and more invasive investigation of the roots near the pool. Soil to a depth of approximately 300mm over a 600mm section was excavated from the base of the tree to the pool.

The excavation could not be deeper because of the density and size of the root structure.

  1. [16]
    He observed a large number of roots pressing up against and running along the edge of the pool; the roots varied in diameter from 3mm to over 300mm; there were cracks in the outside face of the concrete shell and some of the smaller roots could be seen penetrating into the cracks; several roots extended under the coping edging on top of the pool and onto the pool shell. He exhibited photographs taken of the mass of roots.
  2. [17]
    In a subsequent report Mr Clement said the root system had ‘likely’ already caused damage to the swimming pool structure which would continue to increase over time (including within the next 12 months).
  3. [18]
    The further investigation revealed concrete cracks in the pool and that tree roots had invaded these cracks. In his opinion in this report the tree roots had already compromised the integrity of the pool structure and would continue to compromise the structure into the future.
  4. [19]
    However, he concluded neither the extent of the damage nor the rectification required could be assessed without the complete removal of the soil supporting the tree root system. He said his investigation had demonstrated that the tree roots had already started to infiltrate the pool shell and ‘have likely begun to cause structural damage’ which could be expected to worsen over time, particularly in dry spells when the tree searches for moisture.
  5. [20]
    Subsequently, however, in yet another report dated 8 November 2018, Mr Clements said he could not confirm whether significant and irreversible damage to the pool structure had already been done but in his opinion the tree should be removed.

The Engineering Evidence at Hearing

  1. [21]
    Mr Clement’s evidence was of great significance. He was the only engineer engaged by the parties. He seemed to be a knowledgeable person and gave his evidence in a forthright and independent manner, as required.
  2. [22]
    At the hearing he agreed the excavation had yielded only limited information. He found no actual root penetration of the concrete shell in the excavated area. There was nothing to suggest there was any crack through the thickness of the concrete shell of the pool though he said there did not need to be a crack right through the shell to cause stress to the concrete structure. Where he excavated he saw a shrinkage crack on the outside of the pool shell which had most probably occurred in the initial concrete pour, but he saw no evidence that there were any roots entering it. He saw a large number of roots including a large 300mm root running directly towards the pool shell from the tree and then running along parallel to the pool shell just under the coping tiles.
  3. [23]
    He said if there had been any through and through cracks to the pool shell, he would have expected to see some evidence of that, either a disturbance of the tiles inside the pool or a leak outside the pool and he observed neither of those indicators.
  4. [24]
    Mr Clements thought the pool was in fair condition considering its age of approximately 38 years. He said his principal concern was that very small roots could enter very small cracks and then, as the roots grew, the small cracks would enlarge.
  1. [25]
    He was asked why he thought the pool has already been damaged. He said that given there would be a number of shrinkage cracks around the shell and he anticipated there were a lot of roots in contact with the shell and had been for many years, it would only take one root to enter one crack to start structural damage. His evidence was:[1]

Severe structural damage in my opinion is only a matter of time. Whether it has occurred already I’d say, potentially it has started, potentially it has got to an irreversible point, but we can’t adequately inspect ….

  1. [26]
    In his supplementary report Mr Clements states that the pool shell and drainage would not have been designed to withstand increased pressure caused by the tree and root system. The pressure may be expected to increase as the tree grows or during dry periods as the root system extends. Then there was the increased risk of pool wall failure when the pool was emptied for maintenance or cleaning.[2]
  2. [27]
    It was put to Mr Clements that there was no evidence of any damage having occurred in the 38 years the pool has been there nor was there any evidence that damage would occur within the next 12 months. In response Mr Clements said he believed it was likely that severe damage would occur ‘at a point in the future’. Mr Clements said it was unlikely that we would see evidence of structural damage until it was too late.
  3. [28]
    Mr Clements evidence amounted to this. He could not say that structural damage had not already occurred. Equally however he could not say that structural damage had occurred. He was certain that it would occur but not necessarily within the next 12 months.[3]The only way to be certain was to investigate further but that would mean damaging the root structure of the tree.
  4. [29]
    Also, Mr Clements admitted he had never seen the failure of a pool wall caused by tree roots.

The Legislation

  1. [30]
    By s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’):

Land is affected by a tree at a particular time if—

  1. (a)
    any of the following applies—
  1. (i)
    branches from the tree overhang the land;
  2. (ii)
    the tree has caused, is causing, or is likely within the next 12 months to cause—
  1. (A)
    serious injury to a person on the land; or
  1. (B)
    serious damage to the land or any property on the land; or
  1. (C)
    substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
  1. (b)
    the land—
  1. (i)
    adjoins the land on which the tree is situated
  1. [31]
    Section 66(2) provides:

Orders QCAT may make

  1. (2)
    QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
  1. (a)
    to prevent serious injury to any person; or
  2. (b)
    to remedy, restrain or prevent—
  1. (i)
    serious damage to the neighbour’s land or any property on the neighbour’s land; or
  2. (ii)
    substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

Discussion

  1. [32]
    QCAT can only make an order in respect of the tree if the tree affects land in the terms provided for in s 46. In so far as the applicants claim that the tree is causing serious damage to their land, the damage must have been caused, or is being caused or would likely occur within 12 months. I am unable to conclude on the evidence led that any of those scenarios applies in the case at hand.
  2. [33]
    The actual damage identified as occurring was an incident that occurred in 2013 when minor damage was done to the pool piping. That was rectified and there is no indication that similar damage has occurred since.
  3. [34]
    Though Mr Clements said that in his opinion the tree roots were causing damage and would continue to cause damage until the pool structure failed, he also said, very clearly, when asked whether damage had occurred or would occur within the next 12 months, that whilst he believed it was likely severe damage would occur ‘at a point in the future’ he was unable to say that it either had occurred as at the date of hearing or that it would likely occur within the next 12 months.
  4. [35]
    The provisions of the Act are clear. By s 66(2) the Tribunal may make orders it considers appropriate in relation to a tree affecting the neighbour’s land. Section 46 states when a tree is deemed to affect a neighbour’s land. Where the claim is to remedy serious damage to adjoining land or property on the land then the neighbour must be able to show that the damage has already occurred, or is being caused to or will likely cause damage to adjoining land or property within the next 12 months. These are threshold issues that must be satisfied.
  5. [36]
    I accept Mr Clements is a knowledgeable engineer and he believes the tree should go. However, the jurisdiction of the Tribunal is limited as explained above and I must conclude that there is no evidence that the pool has been damaged by the tree roots to date, nor am I able to conclude that such damage is likely to occur within the coming 12 months.
  1. [37]
    I am reinforced in that conclusion with Mr Clements’ admission that he has never seen a pool wall fail because of tree roots and the fact that for some 37 years the tree and pool have coexisted together without discernible damage, save for very minor damage caused to a pipe.
  2. [38]
    I note what Mr Clements expects will be the eventual outcome, that eventually the tree roots will damage the pool. If and when that happens, it is also Mr Clements’ view that the cost of rectification will be substantial. At that stage, if reached, the applicants may be prompted to again seek orders to remove the tree and perhaps seek compensation for damage to the pool from Montessori. But at the moment the relief that is sought, removal of the tree, cannot be granted by the Tribunal.

Ongoing Maintenance

  1. [39]
    That is not to say it is not appropriate to make orders to ensure the tree is appropriately maintained in future so as to ensure it interferes as little as possible with the applicants’ use and enjoyment of their land.
  2. [40]
    Construction of a root barrier is problematic. I conclude that it would not be so much a problem of resulting tree instability that makes that a problem, but maintaining the tree’s health given the significant excavation amongst the tree roots that would be required.
  3. [41]
    I accept, however, what the tree experts have agreed between themselves that hazards associated with the canopy can be significantly reduced by regular programed maintenance and hazard reduction pruning; that the tree is generally structurally sound; and if regular pruning occurs, then the shedding of leaves and twigs into the pool area could be controlled so as not to cause ongoing and unreasonable interference with the applicants’ enjoyment of their land.
  4. [42]
    I conclude that with continued vigorous regular pruning, branches of any significant size should not fall into the applicants’ pool area, though the applicants did find a one metre branch fallen into the pool in August 2018 after the first pruning done in April 2018. The second pruning occurred after that, however, and Mr Smith, the arborist who did the pruning, stated that the pruning was staged so as to systematically reduce the lateral canopy. Following the second pruning, he estimated the lateral canopy only extended over the fence-line of the applicants land by at most one to two metres.
  5. [43]
    Montessori has agreed to a rigorous six-monthly pruning schedule at its cost. Even if it had not agreed that would have been the appropriate order to make. A rigorous pruning occurred in April 2018 and then again in October 2018. Based on that schedule the next is therefore due in April 2019. It is appropriate that orders are made to ensure that the six-monthly pruning schedule is maintained into the future at the cost of Montessori as tree-keeper, and the Tribunal orders accordingly. The orders are based on the evidence given by the arborist responsible for the current pruning regime, Mr Smith, who says that a Level 3 arborist currently does the actual pruning and there is also, on site, a Level 5 qualified arborist observing.

Footnotes

[1]Audio 11:51:20am.

[2]Exhibit 5, [6].

[3]Ibid 11:55:00am.

Close

Editorial Notes

  • Published Case Name:

    Page & Anor v Montessori Children's House Ltd. & Anor

  • Shortened Case Name:

    Page & Anor v Montessori Children's House Ltd. & Anor

  • MNC:

    [2019] QCAT 9

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    17 Jan 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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