BOATER & ANOR V KWOK & ANOR - [2023] QCAT 144

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BOATER & ANOR V KWOK & ANOR [2023] QCAT 144

PARTIES:

IAN BOATER & BRIONHY MELISSA BOATER

(applicants)

V

ROBERT CHING HANG KWOK AND JENNY KWOK

(respondents)

APPLICATION NO/S:

NDR216-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

17 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for strike out/dismissal filed 27 January 2022 is refused.

2. The application for a tree dispute is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether leaf litter amounts to substantial, ongoing and unreasonable interference – where strike out refused

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where interference to pool by leaf and flower litter

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 18, s 42, s 45, s 46, s 48, s 49, s 52, s 63, s 65, s 66, s 75, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, 4, s 23, s 32, s 47, s 62

Agar v Hyde (2000) 201 CLR 552
Briginshaw v Briginshaw (1938) 60 CLR 336
Dey v Victorian Railways Commissioners [1949] 78 CLR 62
Finch v Grahle [2017] QCAT 80
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Graham & Ors v Welsh [2012] QCA 282
Markan v Bar Association of Queensland [2013] QSC 146
Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
Spencer v Commonwealth (2010) 241 CLR 118
Thomsen v White [2012] QCAT 381
Vecchio v Papavasiliou [2015] QCAT 70
Yeo v Brisbane Polo Club Inc [2013] QCAT 26

APPEARANCES & REPRESENTATION:

At the parties’ request, 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

What is the application about?

The Boaters say that use and enjoyment of their urban property is impacted by substantial, ongoing, and unreasonable interference by leaf and flower litter from a Tipuana tree[1] (the Tree) situated on the adjoining land owned by their neighbours, the Kwoks.
[1]Also known as the rosewood, tipu tree or ‘yellow jacaranda’.
On 18 December 2020, the Boaters applied for orders requiring that branches of the tree be removed or pruned at the Kwoks’ cost.[2]
[2]Application for a tree dispute filed 19 December 2020, Part F, Question 39.
In a response filed 12 January 2021, and in an application for miscellaneous matters seeking strike out filed 27 January 2022, the Kwoks say the Tree is safe, contained wholly within their land, that no works or orders are necessary, and that the Boaters’ application should be dismissed.
The parties consented to a decision ‘on the papers’ on the application for strike out, and, if strike out is refused, on the application for a tree dispute. I have dismissed both the strike out application…

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.

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Details

Case: [2023] QCAT 144
Decision Date

CaseChat Overview and Summary

Ian and Brionhy Melissa Boater sought orders to require Robert Ching Hang Kwok and Jenny Kwok to prune branches of a Tipuana tree, situated on the Kwoks' land, that were interfering with the Boats' use and enjoyment of their property. The Boats alleged that the tree was causing substantial, ongoing, and unreasonable interference by dropping leaves and flowers into their pool for four months of the year. The Kwoks denied that the tree was causing unreasonable interference. The Kwoks applied to have the Boaters' application dismissed as lacking in substance. The Tribunal refused the application to strike out and dismissed the application for a tree dispute. In coming to this decision, the Tribunal considered whether the interference was substantial, ongoing, and unreasonable and whether the evidence before the Tribunal was sufficient to justify the making of tree orders. The Tribunal found that the interference was not substantial, ongoing, and unreasonable and that the evidence was not sufficient to justify the making of tree orders. The Tribunal was not satisfied that the interference was continuous or for most of the year. The evidence showed that the interference was for four months of the year and amounted to the Boats having to clean their pool and deck more frequently than they otherwise would have to. The Tribunal found that this did not amount to substantial, ongoing, and unreasonable interference. In addition, the Tribunal found that the evidence before it was not sufficient to justify the making of tree orders. The Kwoks had provided photographs of the impact that pruning the tree would have, but there was no evidence from an arborist as to the impact of pruning on the tree or whether pruning would reduce the leaf litter issue.

Orders