Blackshaw & Anor v Campbell

[2019] ACAT 41

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BLACKSHAW & ANOR v CAMPBELL (Civil Dispute) [2019] ACAT 41

XD 1362/2015

Catchwords:                CIVIL DISPUTE – claim in common law nuisance – trees overhanging neighbour’s property – root invasion of neighbour’s property including pipes – unreasonable encroachment of trees on neighbour’s property – respondent ordered on 16 September 2016 to remove trees – application to set aside orders by reason of new information – consideration of power to set aside an order under section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 – consideration of “extraordinary circumstances” – no new information provided – application an abuse of process – application dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 32, 48, 56, 82

Cases cited:Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108

Campbellv Blackshaw & Evans [2017] ACAT 64
Campbellv Blackshaw & Evans [2017] ACAT 95
CampbellvBlackshaw [2019] ACTCA 1
CampbellvBlackshaw [2018] ACTSC 39
Elliott v The Queen; Blessington v The Queen [2007] HCA 51
Commonwealth Bank of Australia v Quade [1991] HCA 61
Craig v The State of South Australia [1995] HCA 58
Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132
Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
Macleod v Australian Securities and Investments Commission [2002] HCA 37
Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57

Tribunal:                      Presidential Member G McCarthy

Date of Orders:  12 April 2019

Date of Reasons for Decision:         12 April 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 1362/2015

BETWEEN:

ADAM SCOTT BLACKSHAW

First Applicant

ROBYN JANE EVANS

Second Applicant

AND:

MARYANNE CAMPBELL

Respondent

TRIBUNAL:             Presidential Member G McCarthy

DATE:12 April 2019

ORDER

The Tribunal orders that:

1. The application for interim or other orders dated 13 March 2019 is dismissed.

………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

1. By application dated 3 December 2015, the applicants brought a claim in common law nuisance against the respondent. By way of remedy, they sought an order that the respondent remove nine cypress trees planted on the respondent’s land close to the common boundary between the applicants’ and the respondent’s respective properties.

2. On 16 September 2016, I made the following seven orders in this proceeding:

   1.Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicants’ property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.

   2.The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1.

   3.The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between…