(11.08.2015) Man vs. Wild: The Act, Albizia, and Neighbour with Allergies

Mr Watson & Ms Harloe were neighbours with Mr & Mrs Leonardi. On 24 June 2015 the Queensland Civil & Administrative Tribunal (“QCAT”) made an Order that Mr & Mrs Leonardi remove a tree from their land as it was causing Ms Harloe serious harm. The Order was, in effect, a “destruction Order”.

The full decision is available here: Watson & Harloe v Leonardi [2015] QCAT 238

Neighbourhood Disputes Act

Under neighbourhood disputes legislation in force in Queensland, a person is responsible for the proper care and maintainence of a tree which is situated on their land. A person with the responsibility for a tree is known as a “tree keeper”, and they must ensure that the tree does not cause “serious injury to any person”.

A neighbour of a tree keeper can apply to QCAT, and QCAT can make an Order if it considers that the Order will prevent a tree affecting the neighbour’s land from causing serious injury to any person.

The Order can require the destruction of a tree.

Background Facts

Albizia_lebbeckMr & Mrs Leonardi were the keepers of a tree of the “Albizia Lebbek” species (or Indian Siris or Raintree) which was situated in their yard (species pictured). Ms Harloe alleged that pollen from the flowers of the tree caused her persistent health issues, including a severe allergic reaction.

Ms Harloe gave evidence before QCAT that the pollen:

  1. Affected her breathing;
  2. Caused a burning sensation down her throat;
  3. Caused her eyes to swell and become infected;
  4. Caused her to suffer blotches on her skin similar to measles;
  5. Affected the skin between her fingers and her toes and the soles of her feet.

She alleged that the tree would flower for a period of 10 weeks per year and, during the flowering season, she would try and leave her residence to escape the tree as much as possible.

She also talked about lying in a bathtub full of cold water at night to attempt to gain relief from her symptoms, and that she was suffering from depression because of the impact of her symptoms on her quality of life.

The symptoms were so severe that Ms Harloe’s general practitioner prescribed her medication and referred her to an allergy specialist who concluded that Ms Harloe was suffering from “urticaria”. A pollen test subsequently confirmed that Mr Harloe tested positive to the pollen of the Acacia Mimosa, which was the closest available pollen test to the Albizia Lebbek.

Decision of QCAT

QCAT accepted that the relevant legislation provided that a living tree should not be removed or destroyed unless the issue relating to it could not be satisfactorily resolved. It also accepted the evidence of an arborist that, whilst Mr & Mrs Leonardi loved the tree, it had no historic, cultural, or scientific value.

Whilst Mr Leonardi was prepared to trim back the tree to reduce the amount of flowers and leaf litter, QCAT was not satisfied that this would be sufficient to cease the effect of the tree.

Ultimately, the Tribunal accepted that the tree was causing Ms Harloe serious harm and the only appropriate remedy was to Order the tree’s destruction.

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