Absolon v Hetherton - [2024] QCAT 596

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Absolon v Hetherton [2024] QCAT 596

PARTIES:

CATHRYN ELIZABETH ABSOLON

(applicant)

THOMAS JOHN ABSOLON

(applicant)

v

BRADLEY JOHN HETHERTON

(respondent)

TRACY LORRAINE HETHERTON

(respondent)

APPLICATION NO/S:

NDR114-22

MCDQ49-22 Caboolture

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

25 November 2024

HEARING DATE:

19 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     Mr and Mrs Hetherton shall be entitled to enter Mr and Mrs Absolon’s property at 40 Bellay Road, Beachmere to perform the suggested arboriculture management work noted in the tree assessor’s report dated 8 May 2023, a copy of which is attached to these orders.

2.     The work is to be undertaken by a suitably qualified arborist at the cost of Mr and Mrs Hetherton.

3.     The arborist so engaged may also perform such additional branch cutting and pruning work as the arborist recommends as necessary to ensure Mr and Mrs Hetherton comply with their obligations as tree-keepers under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

4.     The work shall be done on or before 31 December 2024 after giving Mr and Mrs Absolon 7 days written notice of the intention to enter to perform the work.

5.     Should the work not be completed by 31 December 2024, subject to Mr and Mrs Absolon having acted in good faith and not prevented or hindered Mr and Mrs Hetherton performing the work, Mr and Mrs Absolon shall be entitled to have the aforesaid work performed by a suitably qualified arborist engaged by them on their giving 14 days written notice of that intention to Mr and Mrs Hetherton.

6.     Should Mr and Mrs Absolon be required to carry out the work mentioned above or the further biennial work provided for by Order 8 below in default of it being done by Mr and Mrs Hetherton, their suitably qualified arborist shall be entitled to enter Mr and Mrs Hetherton’s property at 30 Bellay Road, Beachmere to carry out the work.

7.     The costs incurred by Mr and Mrs Absolon engaging a suitably qualified arborist to do the work in default of Mr and Mrs Hetherton shall be recoverable from Mr and Mrs Hetherton as a debt without further notice being required to be given.

8.     Mr and Mrs Hetherton shall also ensure a suitably qualified arborist attends and prunes the trees along the common boundary every 24 months after the trees are first pruned pursuant to Orders 1, 2 and 3 above.

9.     Mr and Mrs Hetherton and any suitably qualified arborist engaged by them to perform the initial work or biennial pruning shall be entitled to enter Mr and Mrs Absolon’s land to do that, subject to 7 days written notice being given of the work to be done.

10.     A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework level 5 in arboriculture with appropriate insurance cover.

11.     These orders shall remain in force and effect for a period of 10 years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 596
Decision Date: 25 November 2024

CaseChat Overview and Summary

In the case of Absolon v Hetherton, the parties were neighbours on rural-residential land who disputed the maintenance of trees on the common boundary between their properties. The Hethertons, who were the tree-keepers, were accused of not maintaining the trees properly. The dispute arose after a tree on the boundary line fell during a storm, damaging the Absolons' property. The Absolons subsequently lodged an application for a tree dispute with the Tribunal, claiming additional compensation from the Hethertons.

The legal issues before the court involved whether the Hethertons were in breach of their obligations under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and whether the Absolons were entitled to additional compensation. The court also had to determine if the Hethertons could be compelled to allow the Absolons or an arborist appointed by them to enter their property to perform tree maintenance work as recommended by the tree assessor appointed by the Tribunal.

The court found that while the Hethertons were indeed in breach of their obligations as tree-keepers, it was not appropriate to grant the Absolons additional compensation. The court reasoned that the purpose of the Act was to provide a means of resolving disputes between neighbours concerning trees and to avoid litigation, and that the intention was to facilitate compliance with the Act rather than to provide a remedy for damages caused by trees. Consequently, the court ordered that the Hethertons must allow the Absolons or an arborist engaged by them to enter their property to perform the necessary tree maintenance work. The court also stipulated that any costs incurred by the Absolons in performing the work would be recoverable from the Hethertons. The Absolons' claims for additional compensation and legal costs were dismissed.

Orders

Orders of the court

1. Mr and Mrs Hetherton shall be entitled to enter Mr and Mrs Absolon’s property at 40 Bellay Road, Beachmere to perform the suggested arboriculture management work noted in the tree assessor’s report dated 8 May 2023, a copy of which is attached to these orders.

2. The work is to be undertaken by a suitably qualified arborist at the cost of Mr and Mrs Hetherton.

3. The arborist so engaged may also perform such additional branch cutting and pruning work as the arborist recommends as necessary to ensure Mr and Mrs Hetherton comply with their obligations as tree-keepers under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

4. The work shall be done on or before 31 December 2024 after giving Mr and Mrs Absolon 7 days written notice of the intention to enter to perform the work.

5. Should the work not be completed by 31 December 2024, subject to Mr and Mrs Absolon having acted in good faith and not prevented or hindered Mr and Mrs Hetherton performing the work, Mr and Mrs Absolon shall be entitled to have the aforesaid work performed by a suitably qualified arborist engaged by them on their giving 14 days written notice of that intention to Mr and Mrs Hetherton.

6. Should Mr and Mrs Absolon be required to carry out the work mentioned above or the further biennial work provided for by Order 8 below in default of it being done by Mr and Mrs Hetherton, their suitably qualified arborist shall be entitled to enter Mr and Mrs Hetherton’s property at 30 Bellay Road, Beachmere to carry out the work.

7. The costs incurred by Mr and Mrs Absolon engaging a suitably qualified arborist to do the work in default of Mr and Mrs Hetherton shall be recoverable from Mr and Mrs Hetherton as a debt without further notice being required to be given.

8. Mr and Mrs Hetherton shall also ensure a suitably qualified arborist attends and prunes the trees along the common boundary every 24 months after the trees are first pruned pursuant to Orders 1, 2 and 3 above.

9. Mr and Mrs Hetherton and any suitably qualified arborist engaged by them to perform the initial work or biennial pruning shall be entitled to enter Mr and Mrs Absolon’s land to do that, subject to 7 days written notice being given of the work to be done.

10. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework level 5 in arboriculture with appropriate insurance cover.

11. These orders shall remain in force and effect for a period of 10 years from the date hereof.

12. The claim for compensation by Mr and Mrs Absolon is refused.

13. The claim for legal costs by Mr and Mrs Absolon is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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