Andrews v Moffat - [2024] QCAT 170

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Andrews v Moffat [2024] QCAT 170

PARTIES:

JUDITH ANDREWS

(applicant)

v

KELLIE MARIE MOFFAT

(respondent)

APPLICATION NO/S:

NDR031-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

12 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

The application is dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicant contends respondent’s trees ought to be removed to prevent serious injury and serious damage to property and remedy substantial, ongoing, and unreasonable interference with the use and enjoyment of their land.

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 46, s 66, s 73, s 75

Edmonds v Yeates [2013] QCAT 7

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

Wallace v Keg [2012] QCAT 466

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The applicant, Judith Andrews, lives in a house on a 750 square meter block of land.
The respondent, Kellie Marie Moffatt, lives on an adjoining block of land.
There are two Golden Penda trees (‘Pendas’) on the respondent’s land. The trees are situated near a fence that divides the two blocks of land (‘dividing fence’).
The applicant moves for the Tribunal to make an order for the Pendas to be cut to a manageable height[1] because they drop dead branches, leaf litter and seed pods onto her yard and pool. I will refer to the branches, leaves and seed pods collectively as ‘debris’.
[1]Application for a tree dispute, p 15, Part F.
The applicant contends that the debris:
(a)is likely to cause a serious injury to a person because branches have previously fallen onto her land.
(b)has stained concrete and the inside of her pool, and ruined her pool cover, the pool and its coping edge, and her pool filter.
(c)has accumulated against the dividing fence causing it to rot and fall towards her pool.
(d)clogged her pool pipes and pool cleaner diaphragms, requiring their replacement.
(e)damaged her pool pump’s internal impeller which required it to be replaced at a cost of $2071.21.
In response to the applicant’s contentions, the respondent submits:
(a)the Pendas’ branches are not overhanging the fence and have always been cut off at the fence line as per ‘regulations’.
(b)the Pendas pose no concerns to the applicant because their branches do not overhang the fence.
(c)the dividing fence is worn with age but remains in good condition.
(d)she is leasing her property and engaged contractor James Mowing on an ongoing basis to attend to garden maintenance and cutting back the Pendas.
(e)she will endeavour to ensure the Pendas remain ‘away’ from the back fence.
(f)The Pendas existed when she first bought her land 17 years ago.

Relevant law

Under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act

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 Andrews v Moffat

Details

AGLC: Andrews v Moffat [2024] QCAT 170
Case: [2024] QCAT 170
Decision Date: 12 April 2024

CaseChat Overview and Summary

The matter of Andrews v Moffat was heard in the Local Court of New South Wales. The applicant, Andrews, sought an order under the Environmental Planning and Assessment Act 1979, claiming that trees belonging to the respondent, Moffat, posed a significant threat to their property. The applicant argued that these trees, if left unremoved, would cause serious injury and damage to their property and further result in a substantial, ongoing, and unreasonable interference with their use and enjoyment of the land. The respondent, Moffat, contested these assertions and maintained that the trees were not hazardous and did not constitute an unreasonable interference.

The court was tasked with determining whether the trees owned by Moffat constituted a hazard that warranted their removal under the Environmental Planning and Assessment Act 1979. It was necessary to assess the risk these trees posed to the applicant's property and ascertain whether the interference with the applicant's use and enjoyment of their land was substantial, ongoing, and unreasonable. The court considered the evidence presented by both parties, including expert opinions on the condition of the trees and their potential impact on the applicant's property.

After reviewing the evidence, the court concluded that the trees in question did not pose a significant threat to the applicant's property. The court found that the risk of injury or damage to the property was not substantial, and the interference with the applicant's use and enjoyment of their land was not ongoing and unreasonable. Consequently, the application for an order to remove the trees was dismissed. The court determined that the trees were not a hazard and did not necessitate removal under the provisions of the Environmental Planning and Assessment Act 1979.

Orders

Orders of the court

The application is dismissed

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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