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Athanasopoulos v Bateman

Athanasopoulos v Bateman

Case [2023] QCAT 318 15 August 2023

Adverse Possession

Easements & Covenants

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Athanasopoulos v Bateman [2023] QCAT 318

PARTIES:

JIM ATHANASOPOULOS and KATERINA ATHANASOPOULOS
(applicants)

v

JOHN BATEMAN and CATHERINE BATEMAN (respondents)

APPLICATION NO:

NDR015-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

15 August 2023

HEARING DATES:

14 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

The application filed 3 February 2020 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for the pruning or removal of trees shrubs and other plants growing adjacent to the parties’ boundary line is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – SEVERE OBSTRUCTION OF A VIEW- whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ trees be trimmed or removed – orders of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73
Belcher v Sullivan [2013] QCATA 304
Body Corporate for Elron Court - CTS2566 v Doyle [2023] QCAT 279
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
Robertson v Darvas [2016] QCAT 136
Thomsen v White [2012] QCAT 381
Vecchio v Papavasiliou [2015] QCAT 70
Young v Salmon [2016] QCAT 508

APPEARANCES & REPRESENTATION:

The Applicants were self-represented
The Respondents were self-represented

REASONS FOR DECISION

The Applicants and the Respondents own adjoining suburban properties in Swayne Street carina Heights Brisbane. The respondents own their home at 24 Swayne Street. The Applicants own the home at 28 Swayne Street. Photographs show that 28 Swayne Street is a high set house. The Applicants were represented at the hearing by Mr Athanasopoulos. Mrs Athanasopoulos did not attend the hearing.
On 3 February 2020 the Applicants filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act) for the pruning or removal of trees shrubs and other plants growing adjacent to and in some instances such as a foxtail palm whose fronds went over the boundary line. One small shrub has grown through the timber fence onto the Applicant’s side. Some stalks have grown through the gaps in the fence. Both of the latter could be easily removed by the Applicants should they choose to take that…

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 Athanasopoulos v Bateman

Details

AGLC: Athanasopoulos v Bateman [2023] QCAT 318
Case: [2023] QCAT 318
Decision Date

CaseChat Overview and Summary

Jim and Katerina Athanasopoulos commenced proceedings against John and Catherine Bateman, seeking orders requiring the respondents’ trees be trimmed or removed. The applicants alleged that the respondents’ trees were causing substantial, ongoing and unreasonable interference with their use and enjoyment of their land and property. They also alleged that there was serious injury to Katerina from a branch falling on her, and that the roots of the trees had caused serious damage to the applicants’ land. The matter was heard in the Queensland Civil and Administrative Tribunal. The tribunal dismissed the application, finding that the applicants had not demonstrated that the trees were causing serious injury, serious damage, or substantial, ongoing and unreasonable interference with their use and enjoyment of their land. The tribunal found that the trees were well maintained, and that the respondents had taken reasonable steps to ensure that the trees did not overhang into the applicants’ property. The tribunal also found that the applicants had not provided sufficient evidence to support their claims of serious injury or damage, or of substantial, ongoing and unreasonable interference with their use and enjoyment of their land. The tribunal concluded that the applicants had not met the requisite threshold to seek orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The tribunal also found that the applicants had not demonstrated that the removal of the trees was necessary to remedy, restrain or prevent serious damage to the applicants’ land or any property, or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land. The tribunal concluded that there were other remedies available to deal with any potential interference or damage in the future, including the applicants trimming any overhanging or protruding foliage. The tribunal dismissed the application, and made no orders.

Orders