Booker v Ashman - [2024] QCAT 214

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Booker v Ashman [2024] QCAT 214

PARTIES:

JOHN WILLIAM BOOKER

(applicant)

WENDY PATRICIA BOOKER

(applicant)

v

ROWAN ANTONY ASHMAN

(respondent)

BOBBY LEE ASHMAN

(respondent)

APPLICATION NO/S:

NDR068-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

16 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member Lumb

ORDERS:

1.       The Respondents must carry out work to reduce the height of each of the four (4) Dypsis lutescens (Golden Cane Palms) identified as ‘G1’ in the report of Mr David Gunter, Tree Assessor, dated 28 February 2023, to a height of 2.5 metres above ground level measured from the base of each Golden Cane Palm (‘the Work’).

2.       The Work must be carried out:

(a)     initially, within six (6) weeks of the date of these Orders;

(b)     then annually, no later than 12 months after the date on which the Work was previously carried out;

(c)     by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the Work; and

(d)     at the Respondents’ cost.

3.       The Applicants must provide access to the Applicants’ property to an arborist to carry out the Work, if access is requested by notice given by the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out.

4.       Any culms, stems, or other vegetative matter must be removed from the Applicants’ property as part of the Work.

5.       Should the Work not be completed within any of the respective times set out in Directions 2(a) and (b):

(a)      the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Direction 2(c);

(b)      for the purpose of performing the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondents’ land to carry out the Work, subject to the Applicants giving notice to the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out;

(c)      the cost incurred by the Applicants engaging an arborist to carry out the Work shall be recoverable from the Respondents as a debt, without further notice being required to be given to the Respondents.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees caused substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ property – where question of impact of trees situated on adjoining property comprising obstruction of views and shading from trees – whether appropriate to make orders under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 47, s 49, s 59, s 61, s 65, s 66, s 72

Belcher v Sullivan [2013] QCATA 304
Laing v Kokkinos (No 2) [2013]…

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 Booker v Ashman

Details

AGLC: Booker v Ashman [2024] QCAT 214
Case: [2024] QCAT 214
Decision Date: 16 May 2024

CaseChat Overview and Summary

The case of Booker v Ashman involved the applicants, Mr and Mrs Booker, seeking relief from the respondents, Mr and Mrs Ashman, regarding the impact of trees on their property. The Bookers alleged that trees on the Ashmans’ property caused substantial, ongoing, and unreasonable interference with their use and enjoyment of their land, specifically due to obstruction of views and shading. The dispute was heard in the Queensland Civil and Administrative Tribunal, which has jurisdiction over disputes under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

The legal issues before the tribunal were whether the trees in question caused the interference alleged by the Bookers and, if so, whether orders under section 66 of the Act were appropriate. The Bookers argued that the trees, namely four Dypsis lutescens, or Golden Cane Palms, had a significant negative impact on their property, both aesthetically and in terms of their ability to enjoy their land. The Ashmans contested these claims, asserting that the trees did not cause the interference described and that any orders sought by the Bookers would be excessive.

The tribunal found that the evidence presented by the Bookers established that the Golden Cane Palms on the Ashmans’ property did indeed cause substantial, ongoing, and unreasonable interference with the Bookers’ use and enjoyment of their property. The tribunal accepted the assessment of the tree expert, Mr David Gunter, which concluded that the trees obstructed views and caused significant shading. As such, the tribunal determined that orders under section 66 of the Act were appropriate to address the interference. The tribunal ordered that the Ashmans must reduce the height of the trees to 2.5 metres above ground level and carry out this work annually. Additionally, the tribunal mandated that the Bookers must provide access to their property for the Ashmans to perform the necessary work, and if the Ashmans failed to do so, the Bookers could engage an arborist to do so at the Ashmans’ expense.

The tribunal's orders included specific timelines and requirements for the reduction of the trees' height, the qualifications of the arborists involved, and the removal of any vegetative matter from the Bookers’ property. These orders were designed to mitigate the interference caused by the trees while also ensuring that the Ashmans had reasonable opportunities to carry out the required work themselves. The tribunal's decision was based on a careful consideration of the evidence and the provisions of the Act, reflecting a balanced approach to resolving the dispute between the neighbours.

Orders

Orders of the court

1. The Respondents must carry out work to reduce the height of each of the four (4) Dypsis lutescens (Golden Cane Palms) identified as ‘G1’ in the report of Mr David Gunter, Tree Assessor, dated 28 February 2023, to a height of 2.5 metres above ground level measured from the base of each Golden Cane Palm (‘the Work’).

2. The Work must be carried out:

(a) initially, within six (6) weeks of the date of these Orders;

(b) then annually, no later than 12 months after the date on which the Work was previously carried out;

(c) by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the Work; and

(d) at the Respondents’ cost.

3. The Applicants must provide access to the Applicants’ property to an arborist to carry out the Work, if access is requested by notice given by the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out.

4. Any culms, stems, or other vegetative matter must be removed from the Applicants’ property as part of the Work.

5. Should the Work not be completed within any of the respective times set out in Directions 2(a) and (b):

(a) the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Direction 2(c);

(b) for the purpose of performing the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondents’ land to carry out the Work, subject to the Applicants giving notice to the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out;

(c) the cost incurred by the Applicants engaging an arborist to carry out the Work shall be recoverable from the Respondents as a debt, without further notice being required to be given to the Respondents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Booker v Ashman [2024] QCAT 214
PARTIES:	JOHN WILLIAM BOOKER (applicant) WENDY PATRICIA BOOKER (applicant)
v
ROWAN ANTONY ASHMAN (respondent) BOBBY LEE ASHMAN (respondent)
APPLICATION NO/S:	NDR068-22
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	16 May 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	A/Member Lumb
ORDERS:	1. The Respondents must carry out work to reduce the height of each of the four (4) Dypsis lutescens (Golden Cane Palms) identified as ‘G1’ in the report of Mr David Gunter, Tree Assessor, dated 28 February 2023, to a height of 2.5 metres above ground level measured from the base of each Golden Cane Palm (‘the Work’). 2. The Work must be carried out: (a) initially, within six (6) weeks of the date of these Orders; (b) then annually, no later than 12 months after the date on which the Work was previously carried out; (c) by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the Work; and (d) at the Respondents’ cost. 3. The Applicants must provide access to the Applicants’ property to an arborist to carry out the Work, if access is requested by notice given by the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out. 4. Any culms, stems, or other vegetative matter must be removed from the Applicants’ property as part of the Work. 5. Should the Work not be completed within any of the respective times set out in Directions 2(a) and (b): (a) the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Direction 2(c); (b) for the purpose of performing the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondents’ land to carry out the Work, subject to the Applicants giving notice to the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out; (c) the cost incurred by the Applicants engaging an arborist to carry out the Work shall be recoverable from the Respondents as a debt, without further notice being required to be given to the Respondents.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees caused substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ property – where question of impact of trees situated on adjoining property comprising obstruction of views and shading from trees – whether appropriate to make orders under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 47, s 49, s 59, s 61, s 65, s 66, s 72 Belcher v Sullivan [2013] QCATA 304 Laing v Kokkinos (No 2) [2013]…