Blackshaw & Evans v Campbell (No.2)

Case [2016] ACAT 108

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BLACKSHAW & EVANS v CAMPBELL (No.2) (Civil Dispute) [2016] ACAT 108

XD 1362/2015

Catchwords:             CIVIL DISPUTE – claim in common law nuisance – trees overhanging neighbour’s property - root invasion of neighbour’s property including pipes – loss of amenity and sunlight – appropriate remedy – removal of trees

Legislation cited:      Common Boundaries Act 1981 s 22
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Tree Protection Act 2005

Subordinate

Legislation:Tree Protection (Approval Criteria) Determination 2006 (No 2) sch 2

Cases cited:Allied Pastoral Case [1983] 1 NSWLR 1

Blackshaw & Evans v Campbell [2016] ACAT 80

Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128

Richmond City Council v Scantelbury (1988) 68 LGRA 49

Robson v Leischke [2008] NSWLEC 152

Young v Wheeler and Anor (1987) Aust Torts Reports ¶ 80 -126

Tribunal:                  Presidential Member G C McCarthy

Date of Orders:  16 September 2016

Date of Reasons for Decision:         16 September 2016

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1362/2015

BETWEEN:

ADAM BLACKSHAW

ROBYN EVANS

Applicants

AND:

MARYANNE CAMPBELL

Respondent

TRIBUNAL:            Presidential Member G McCarthy

DATE:16 September 2016

ORDER

The Tribunal Orders that:

  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 the hours of 8am and 5pm for the purpose of removing the trees.

  4. All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.

  5. In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.

  6. If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.

  7. If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.

………………………………..

Presidential Member G C McCarthy

REASONS FOR DECISION

  1. This application concerns a dispute between…

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Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
Case
[2016] ACAT 108
Decision Date

CaseChat Overview and Summary

The case of Blackshaw & Evans v Campbell (No.2) involved a dispute between neighbours over the impact of trees on the respondent's property on the applicants' property. The applicants, Blackshaw and Evans, claimed that the trees were causing a nuisance by overhanging their property and their roots were invading their property, including affecting pipes, and causing a loss of amenity and sunlight. The matter was brought before the Civil Dispute Tribunal of Queensland, which was tasked with determining the appropriate remedy for the situation.

The central legal issue before the Tribunal was whether the trees on the respondent's property constituted a nuisance to the applicants' property and, if so, what the appropriate remedy would be. The Tribunal had to consider whether the trees were causing significant interference with the applicants' use and enjoyment of their property, and if so, whether the remedy of removing the trees was appropriate and proportionate to the nuisance caused.

The Tribunal found that the trees on the respondent's property did indeed constitute a nuisance to the applicants' property, as they were overhanging and their roots were invading the applicants' property, including affecting pipes, and causing a loss of amenity and sunlight. The Tribunal concluded that the appropriate remedy was the removal of the trees, as it was the most effective way to eliminate the nuisance. The Tribunal ordered the respondent to remove the trees within 28 days, and set out specific requirements for the removal process, including the provision of notice to the applicants and ensuring access to the properties for contractors. The Tribunal also set out provisions for the payment of the costs of removal and the consequences if the respondent failed to remove the trees within the specified timeframe.

In summary, the Tribunal ordered the respondent to remove the trees within 28 days, with specific requirements for the removal process and the payment of costs. If the respondent failed to remove the trees within the specified timeframe, the applicants were entitled to engage contractors to remove the trees at a cost not exceeding $10,000, with the respondent required to pay the applicants for the cost of removal.

Orders

Orders of the court

The Tribunal Orders that:

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 the hours of 8am and 5pm for the purpose of removing the trees.

4.

All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.

5.

In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.

6.

If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.

7.

If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.

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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