Buckley v Brown - [2023] QCAT 468

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
PARTIES:

BUCKLEY V BROWN & ANOR [2023] QCAT 468

DEANAH ELISE BUCKLEY

(applicant)

v

ROBERT JOHN PATRICK BROWN

CLARISSA MARIE BROWN

(respondents)

APPLICATION NO:

NDR030-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

20 November 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.       The respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land.

2.       The work required by order 1 be carried out:

(a)     initially within 60 days of this order and thereafter not less than annually;

(b)     by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and

(c)     at the respondents’ cost.

3.       The applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant.

CATCHWORDS:

APPEARANCES & REPRESENTATION:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where land affected by trees – where branches from trees overhanging land – where interference to pool and staining of sandstone paving around pool by leaf litter – where obstruction of sunlight to the outdoor patio area – where damage to tiles in outdoor patio area

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 12, s 13, s 20, s 45, s 48, s 48, s 49, s 52, s 57, s 61, s 63, s 66, s 73, s 74, s 75

Barber v Kyriakides [2007] NSWLEC 292

Belcher v Sullivan [2013] QCATA 304

Finch v Grahle [2017] QCAT 80

Graham & Ors v Welch [2012] QCA 282

Thomson v White [2012] QCAT 381

Vecchio v Papavasiliou [2015] QCAT 70

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Introduction

The applicant has made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) (application). The Tribunal has directed that the proceeding be decided on the papers.
Application and accompanying documents
The trees the subject of the application are located on the respondents’ land at 127 Arnold Street, Holland Park (respondents’ land) on or near the common boundary between the respondents’ land and the applicant’s land at 131 Arnold Street, Holland Park (applicant’s land). A pool is located on the applicant’s land towards the rear on or near the boundary, adjacent to an outdoor patio area.
The applicant, in the application, asserts the dispute is about overhanging branches of the trees, more than 2.5m above the ground. The trees have caused serious damage to the applicant’s land, or property on the land, the applicant further…

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 Buckley v Brown

Details

AGLC: Buckley v Brown [2023] QCAT 468
Case: [2023] QCAT 468
Decision Date: 20 November 2023

CaseChat Overview and Summary

Buckley brought proceedings against Brown in the NSW Civil and Administrative Tribunal, concerning a dispute between neighbours about the overhanging branches of trees on the Brown's property that affected Buckley's land. Buckley alleged that the branches were causing interference to a pool, staining of sandstone paving around the pool, obstruction of sunlight to the outdoor patio area, and damage to tiles in the outdoor patio area. Buckley sought orders for Brown to cut and remove the branches, and for Brown to cover the costs of the work.

The Tribunal needed to determine whether the branches were causing the alleged damage and interference, and whether the alleged interference was substantial, ongoing, and unreasonable. The Tribunal also needed to determine whether the obstruction of sunlight was severe.

The Tribunal found that there was no evidence of the cause of the damage, whether by the roots of the trees or otherwise. The Tribunal was satisfied that Brown were not cutting and removing branches of the trees that overhang Buckley's land. The Tribunal was not satisfied that the leaf litter was causing serious damage to Buckley's land or any property on Buckley's land, or substantial, ongoing, and unreasonable interference with Buckley's use and enjoyment of Buckley's land. The Tribunal found that the obstruction of sunlight alleged was to the outdoor patio area, not to a window or roof of a dwelling on Buckley's land. The Tribunal found that there was no satisfactory evidence the obstruction was severe. The Tribunal found that there was no evidence of the cause of the damage to the tiles in the outdoor patio area, whether by the roots of the trees or otherwise.

The Tribunal ordered that Brown cut and remove any branches of the trees on Brown's land on or near the common boundary between Buckley's land and Brown's land that overhang Buckley's land. The Tribunal ordered that the work be carried out initially within 60 days of the order and thereafter not less than annually, by an Australian Qualified Framework level 4 arborist with relevant insurance cover, and at Brown's cost. The Tribunal ordered that Buckley provide the arborist with access to Buckley's land to carry out the work on not less than seven days' notice by email from Brown to Buckley.

Orders

Orders of the court

1. The respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land.

2. The work required by order 1 be carried out:

(a) initially within 60 days of this order and thereafter not less than annually;

(b) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and

3. The applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The scant material filed by the parties does not enable the Tribunal to reach a concluded view on the cause of any damage. There is evidence of tiles having lifted and cracked. However, there is no evidence of the cause of the damage, whether by the roots of the trees or otherwise.Decision I am satisfied, to the requisite standard, the respondents are not cutting and removing branches of the trees that overhang the applicant’s land. I am not satisfied the leaf litter is causing serious damage to the applicant’s land or any property on the applicant’s land, or substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of the applicant’s land. The obstruction of sunlight alleged is to the outdoor patio area, not to a window or roof of a dwelling on the applicant’s land. Further, and in any case, there is no satisfactory evidence the obstruction is severe. There is no evidence of the cause of the damage to the tiles in the outdoor patio area, whether by the roots of the trees or otherwise. The decision of the Tribunal is as follows:(a)the respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land;(b)the work required by order (a) be carried out:(i) initially within 60 days of this order and thereafter not less than annually;(ii) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and(iii) at the respondents’ cost; and(c)the applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders (a) and (b) with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant.

Ratio Decidendi

Legal Principle Established

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CITATION: PARTIES:	*BUCKLEY V BROWN & ANOR* [2023] QCAT 468 DEANAH ELISE BUCKLEY
(applicant)
v
ROBERT JOHN PATRICK BROWN CLARISSA MARIE BROWN
(respondents)
APPLICATION NO:	NDR030-21
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	20 November 2023
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Scott-Mackenzie
ORDERS:	1. The respondents cut and remove any branches of the trees on the respondents’ land on or near the common boundary between the applicant’s land and the respondents’ land that overhang the applicant’s land. 2. The work required by order 1 be carried out: (a) initially within 60 days of this order and thereafter not less than annually; (b) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and (c) at the respondents’ cost. 3. The applicant provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicant’s land to carry out the work on not less than seven days’ notice by email from the respondents to the applicant.
CATCHWORDS: APPEARANCES & REPRESENTATION:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where land affected by trees – where branches from trees overhanging land – where interference to pool and staining of sandstone paving around pool by leaf litter – where obstruction of sunlight to the outdoor patio area – where damage to tiles in outdoor patio area Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 12, s 13, s 20, s 45, s 48, s 48, s 49, s 52, s 57, s 61, s 63, s 66, s 73, s 74, s 75 Barber v Kyriakides [2007] NSWLEC 292 Belcher v Sullivan [2013] QCATA 304 Finch v Grahle [2017] QCAT 80 Graham & Ors v Welch [2012] QCA 282 Thomson v White [2012] QCAT 381 Vecchio v Papavasiliou [2015] QCAT 70 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)