Borchi v Kettle - [2017] QCAT 200

CITATION:	Borchi v Kettle [2017] QCAT 200
PARTIES:	John Borchi and Tracey Borchi (Applicant)
v
Sharyn Kettle (Respondent)
APPLICATION NUMBER:	NDR145-15
MATTER TYPE:	Other civil dispute matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
DELIVERED ON:	5 June 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Sharon Kettle must install a root barrier along the boundary between 6 Possum Court, Capalaba and 46 Howlett Road, Capalaba (‘the root barrier’); 2. The root barrier must be: i) adequate to contain the roots from the trees identified as tree #1, tree #2 and tree #5 in the report of Andrew Stovell dated 26 June 2016 (‘the trees) within 46 Howlett Road, Capalaba and to prevent the spread of the roots of the trees to 6 Possum Court, Capalaba; ii) installed under the supervision of an appropriately qualified arborist of at least Australian Qualifications Framework Level 5. 3. Sharyn Kettle must pay for the costs of the installation of the root barrier; 4. John Borchi and Tracey Borchi must provide such reasonable access to their property as may be required by Sharyn Kettle, and any contractors engaged by her, to undertake the installation of the root barrier; 5. The root barrier must be installed within three (3) months of the date of this order. 6. If Sharyn Kettle fails to comply with orders 1, 2, 3 and 5: i) John Borchi and Tracey Borchi may install the root barrier; ii) John Borchi and Tracey Borchi and/or their servants and/or their agents are authorised to enter upon 46 Howlett Road, Capalaba in order to undertake the installation of the root barrier; iii) John Borchi and Tracey Borchi may recover from Sharyn Kettle the cost of the installation of the root barrier.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether evidence that land is affected by a tree – whether leaf litter and tree debris a substantial, ongoing and unreasonable interference with the use and enjoyment of land – whether trees are likely to cause serious damage to land or property on land – where tree roots likely to cause structural damage to property – considerations for making an order about a tree – where installation of root barrier ordered to prevent structural damage Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 41(1), s 42(1), s 42(3), s 42(3)(a), s 42(4), s 42(5), s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 52(2)(b), s 66(2)(a), s 66(2)(b)(i), s 66(3)(b)(ii), s 73(1), s 74(2) Dictionary Redland Shire (Protection of Vegetation) Local Law No. 6 s 4(1), s 26(1) Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Thomsen v White [2012] QCAT 381 Vecchio v…

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 Borchi v Kettle

Details

AGLC: Borchi v Kettle [2017] QCAT 200
Case: [2017] QCAT 200
Decision Date: 5 June 2017

CaseChat Overview and Summary

The case of Borchi v Kettle involved a dispute between neighbours regarding the impact of trees on adjacent properties. The applicants, John and Tracey Borchi, sought an order against Sharyn Kettle, their neighbour, to address the adverse effects caused by the roots of certain trees on their property. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), which had jurisdiction to hear disputes under the Vegetation Management Act 1999.

The central legal issue before the tribunal was whether the evidence demonstrated that the trees on Sharyn Kettle’s land were causing substantial, ongoing, and unreasonable interference with the Borchis’ use and enjoyment of their property, and whether the trees posed a risk of serious damage to the Borchis’ land or property. The tribunal needed to assess whether the installation of a root barrier was an appropriate remedy and consider the relevant criteria for making such an order under the Act.

The tribunal found that the evidence established that the trees on Sharyn Kettle’s property were causing significant issues for the Borchis. The leaf litter and tree debris amounted to a substantial, ongoing, and unreasonable interference with the Borchis’ use and enjoyment of their land. Furthermore, there was a risk that the tree roots could cause serious damage to the Borchis’ property, particularly structural damage. The tribunal concluded that an order for the installation of a root barrier was appropriate and considered the relevant factors in making this determination. The tribunal ordered that Sharyn Kettle must install a root barrier along the boundary between the properties, with specific requirements for its installation and oversight.

In summary, the tribunal made several orders to address the interference caused by the trees. Sharyn Kettle was required to install a root barrier to prevent the spread of the trees' roots onto the Borchis' property, under the supervision of a qualified arborist. The Borchis were to provide reasonable access for the installation, and if Kettle failed to comply with the orders, the Borchis were authorised to install the barrier themselves and recover the costs from Kettle.

Orders

Orders of the court

1. Sharon Kettle must install a root barrier along the boundary between 6 Possum Court, Capalaba and 46 Howlett Road, Capalaba (‘the root barrier’);

2. The root barrier must be:

i) adequate to contain the roots from the trees identified as tree #1, tree #2 and tree #5 in the report of Andrew Stovell dated 26 June 2016 (‘the trees) within 46 Howlett Road, Capalaba and to prevent the spread of the roots of the trees to 6 Possum Court, Capalaba;

ii) installed under the supervision of an appropriately qualified arborist of at least Australian Qualifications Framework Level 5.

3. Sharyn Kettle must pay for the costs of the installation of the root barrier;

4. John Borchi and Tracey Borchi must provide such reasonable access to their property as may be required by Sharyn Kettle, and any contractors engaged by her, to undertake the installation of the root barrier;

5. The root barrier must be installed within three (3) months of the date of this order.

6. If Sharyn Kettle fails to comply with orders 1, 2, 3 and 5:

i) John Borchi and Tracey Borchi may install the root barrier;

ii) John Borchi and Tracey Borchi and/or their servants and/or their agents are authorised to enter upon 46 Howlett Road, Capalaba in order to undertake the installation of the root barrier;

iii) John Borchi and Tracey Borchi may recover from Sharyn Kettle the cost of the installation of the root barrier.

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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