Belcher v Sullivan

[2013] QCATA 304

CITATION: Belcher v Sullivan [2013] QCATA 304

PARTIES:	James Belcher Sandra Belcher (Applicants)
v
Brian Sullivan Barbara Sullivan (Respondents)

APPLICATION NUMBER: APL116-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K S Dodds, Judicial Member

DELIVERED ON: 23 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREE DISPUTE – where roots from trees on respondents’ property causing or contributing to cracking and uplifting of concrete on applicants’ driveway – 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 pruned as well as the cost of rectifying the damage caused by the roots to the driveway – where Tribunal dismissed applicants’ claim – where applicants seek to appeal that decision – whether applicants’ land affected by respondents’ tree – whether roots of trees on respondents’ property causing serious damage or substantial interference – whether Tribunal erred in dismissing applicants’ claim – whether leave to appeal should be granted

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46, 59, 60, 61, 66, 68, 69

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.

REASONS FOR DECISION

1. In mid-May 2012 Mr and Mrs Belcher (the applicants) brought an application in the Queensland Civil and Administrative Tribunal (QCAT) for a tree dispute under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. On 13 February 2013 the application was dismissed by the Tribunal.

2. The matter before me is an application for leave to appeal or appeal that decision.

The Dispute

1. The applicants and respondents reside on adjoining blocks of land.  The offending tree was a Poinciana growing in the respondents’ block adjacent to a common fence between the properties. 

2. The applicants’ complaint to the Tribunal was twofold:

   ·        the tree’s branches overhung the common fence leading to the elderly applicants having to purchase a ladder and extendable chainsaw to trim them.  Untrimmed, the branches would hit their motor home as it was driven up their driveway;

   ·        roots from the tree caused cracking to their cement driveway.  A portion of the driveway had lifted creating a raised edge.  This caused damage to their motor vehicle tyres and was a tripping hazard.

3. The applicants sought orders requiring pruning of the tree on their side of the fence as well as the cost of repair/replacement of the damaged driveway, the removal of the tree’s roots from their land and for the construction of a cement wall on the respondents’ land to prevent tree…