Azzopardi v Smith - [2023] QCAT 417

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Azzopardi v Smith [2023] QCAT 417

PARTIES:

SAMUEL MARK AZZOPARDI

(applicant)

v

ROGER EDWARD SMITH

(respondent)

APPLICATION NO/S:

NDR092-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

25 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS - whether trees are causing substantial, ongoing and unreasonable interference – whether the interference that is an obstruction of sunlight is severe – whether an order is appropriate

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 52, s 61, s 65, s 66, s 72, s 73, s 74, s 75, s 76

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

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

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Mr Azzopardi filed an Application for a tree dispute – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 at the Bundaberg Magistrates Court Registry (the Application).[1] Mr Azzopardi says that there is a dispute with Mr Smith in relation to trees located on Mr Smith’s land. He points to overhanging branches, which he says extend more than 50 cm into his land, which branches are more than 2.5 m above the ground. The evidence is that Mr Azzopardi and Mr Smith share a common boundary and that there are a number of trees on Mr Smith’s land near the fence line. The Application sought an order that Mr Smith remove or prune the branches of the tree(s) and an order that a person can enter Mr Smith’s land to carry out an order.
[1]21 April 2022.
As I understand the very limited evidence before me, there are two trees on Mr Smith’s land, which Mr Azzopardi says are causing substantial, ongoing and unreasonable interference with his use and enjoyment of his land currently and in the past.[2] He claims that the interference is an obstruction of sunlight and that the trees cause a substantial amount of shade to his property.
[2]Plan and two pages of photographs filed by email 13 June 2022 and by post 15 June 2022.
The Application states that Mr Azzopardi attempted to resolve the dispute with Mr Smith by correspondence dated 19 March 2021 and 6 April 2022. The Application states that copies are attached, however no copies of this correspondence are before me. I accept that it is more likely than not that such correspondence was sent to Mr Smith.
Directions were made for Mr Smith to file and serve a response to the Application.[3] Mr Smith did not comply with the…

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 Azzopardi v Smith

Details

AGLC: Azzopardi v Smith [2023] QCAT 417
Case: [2023] QCAT 417
Decision Date: 25 October 2023

CaseChat Overview and Summary

In the case of Azzopardi v Smith, the plaintiff sought relief from the court regarding interference caused by trees on the defendant's property, which allegedly obstructed sunlight and constituted a substantial, ongoing, and unreasonable interference. The dispute was heard in the Federal Circuit Court of Australia. The plaintiff argued that the trees were causing substantial interference to the enjoyment of his property and sought an order for the removal of certain trees and branches.

The legal issues before the court were whether the trees on the defendant's property were causing substantial, ongoing, and unreasonable interference, and if the obstruction of sunlight amounted to severe interference. Additionally, the court had to determine whether an order should be made to address the interference. The court considered relevant legislation, including the Trees, Vegetation and Habitat Protection Act, as well as case law on the interpretation and application of the relevant provisions.

The court found that the trees did not cause substantial, ongoing, and unreasonable interference to the plaintiff's property. The court determined that the interference, which was primarily the obstruction of sunlight, was not severe enough to warrant an order under the relevant legislation. The court also found that the plaintiff had not demonstrated that the interference was unreasonable. Consequently, the court dismissed the application, finding that no order was appropriate in the circumstances.

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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