Anderson v Mabb - [2013] QCAT 85

CITATION:

Anderson v Mabb [2013] QCAT 85

PARTIES:	Mrs Michelle Anderson
v
Mr Jeff Mabb

APPLICATION NUMBER:

NDR068-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

19 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The registered owner of the lot at 8 Leo Street MOUNT ISA QLD 4825 (“the Tree-Keeper”) arrange to have the following works carried out on the trees the subject of the dispute (“the Initial Works”):

a. Canopy reduction to remove overhanging branches of the front Fiddlewood tree to give a two (2) metre clearance from the gutter line/roofline of the dwelling located on 6 Leo Street MOUNT ISA QLD 4825 (“the Neighbour”).

b. Canopy reduction to remove overhanging branches of the Kaffir Plum tree to give a two (2) metre clearance from the gutter line/roofline of the Neighbour’s dwelling.

2. The Tree-Keeper arrange to carry out on going maintenance on the trees the subject of the dispute by inspecting and pruning every two (2) years (“the Subsequent Works”).

3. The Initial Works and Subsequent Works be carried out by an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture.

4. The Initial Works to be completed within 60 days of the date of this decision.

CATCHWORDS:

TREES – where trees overhang roof – where leaf litter – where bat droppings – where fruit attracts bees – where reduced sunlight inhibits grass growth – where bare soil not recommended – whether substantial ongoing and unreasonable interference to land

Neighbourhood Dispute Resolution Act 2011 ss 66, 72

Graham & Ors v Welch [2012] QCA 282
Thomsen v White [2012] QCAT 381
Wallace v Keg [2012] QCAT466

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)

REASONS FOR DECISION

Two fiddlewood trees and one plum tree grow on Mr Mabb’s land in Mt Isa, close to the boundary of Mrs Anderson’s land. Mrs Anderson says that the trees overhang the boundary. She complains that the trees are messy, block sunlight to her yard and that plum tree roots are invading her yard.
Mr Mabb has not filed any material with the tribunal in this dispute. Because he has failed to engage in the process, I vacated the hearing listed for 7 March 2013 and ordered that the Mrs Anderson’s application be determined on the papers.
Mr Mabb’s failure to respond does not necessarily mean that Mrs Anderson is entitled to all that she wants. I can only make an order about a tree to remedy, restrain or prevent serious damage to Mrs Anderson’s land or any property on her land or to remedy, restrain or prevent substantial ongoing and unreasonable interference with Mrs Anderson’s use and enjoyment of his land[1]. If I decided that the trees are interfering with Mrs Anderson’s land in this way, I must decide what…

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.

Continue reading Anderson v Mabb

Details

AGLC: Anderson v Mabb [2013] QCAT 85
Case: [2013] QCAT 85
Decision Date

CaseChat Overview and Summary

In the case of Anderson v Mabb, Mrs Michelle Anderson sought relief from the Queensland Civil and Administrative Tribunal (QCAT) regarding the overhanging branches of three trees on her neighbour's property, owned by Mr Jeff Mabb. The trees, two fiddlewood trees and one Kaffir Plum tree, were causing various issues for Mrs Anderson, including leaf litter, blocked sunlight, and concerns about the trees' impact on her property and health. Mr Mabb did not participate in the proceedings, and the tribunal proceeded on the papers submitted by Mrs Anderson.

The primary legal issue before the tribunal was whether the trees constituted a substantial ongoing and unreasonable interference with Mrs Anderson's use and enjoyment of her land, warranting an order for their removal or modification. The tribunal considered the nature and extent of the interference, the potential harm caused by the trees, and the feasibility of alternative remedies, such as pruning or canopy reduction, to resolve the issues without removing the trees.

The tribunal found that while the trees caused some inconvenience to Mrs Anderson, such as leaf litter and blocked sunlight, they did not cause serious damage to her property or create an unreasonable interference that could not be addressed through less drastic measures. The tribunal accepted the arborist's recommendation to reduce the canopy of the front fiddlewood and Kaffir Plum trees, removing the branches overhanging the roofline and providing a two-metre clearance. The tribunal also ordered ongoing maintenance to be carried out every two years by a qualified arborist. These measures aimed to balance the interests of both parties by mitigating the interference caused by the trees while preserving their presence on Mr Mabb's property.

In conclusion, the tribunal did not order the removal of the trees but instead mandated specific works to be carried out on the trees to alleviate the interference experienced by Mrs Anderson. The tribunal emphasised the importance of considering less invasive remedies and the need for a balanced approach that takes into account the interests of both property owners. The tribunal's decision focused on addressing the specific issues raised by Mrs Anderson while maintaining a reasonable compromise for Mr Mabb.

Orders