Budgen v Collins - [2014] QCAT 172

CITATION:

Budgen v Collins [2014] QCAT 172

PARTIES:

Edward Budgen
(Applicant)

v
William Collins
(Respondent)

APPLICATION NUMBER:

NDR168-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

24 April 2014

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

DELIVERED ON:

24 April 2014

DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application by Mr Edward Budgen is dismissed.

CATCHWORDS :

NEIGHBOUR DISPUTE—REMOVAL OF A TREE — where the neighbour seeks the removal of trees - where safety of a person and property damage is alleged - where there is no evidence justifying the removal or the trees - where the Tree Keeper has already taken action to minimise the interference with the neighbour’s amenity

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 31, 57, 66, 71, & 72

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Joy Milgate (Applicant)
RESPONDENT:	Paul Wilson and Susan Wilson (Respondents)

REASONS FOR DECISION

Palms are endemic in Southeast Queensland and can be a source of great pleasure but also consternation for their owners and neighbours. Palms have brought neighbours of more than 20 years, Mr Budgen and Mr Collins, to the Tribunal to resolve a disagreement.

It appears that the relationship between the neighbours has not been amicable for quite some time and in July 2013 Mr Budgen lodged an application with the Tribunal stating that dead branches and heavy seed pods fall from the crown of the palms into his property creating a risk and causing damage to property. They overhang his land and, at the front of his property, obstruct his easterly view of Morton Bay.

Mr Budgen states that Mr Collins has largely ignored his requests to deal with the palms although he concedes that Mr Collins has removed some trees from the front yard opening up the view of the bay although vines remain, to which he continues to object.

Mr Budgen seeks the removal and/or pruning of trees, roots, and other tree work along with orders to enable that work to occur.

In his response to the application, Mr Collins writes that not long after Mr Budgen purchased the adjoining property several trees at the front of his property were poisoned and he was subject to a degree of harassment. He does not, however, assert that the culprit was Mr Budgen. Mr Collins does, however, dispute the allegation that complete branches and other significant debris fall into Mr Budgen’s property. As for Mr Budgen view of the bay, Mr Collins asserts that his neighbour never had a unobstructed bay view, providing as evidence a photograph of the front of his and Mr Budgen’s house taken in the early 1980s.

The Tribunal can make orders to remove or prune trees if it considers the trees constitute a risk of serious injury to any person, if there is a need to remedy, restrain, or prevent serious damage to the neighbours land or property, or if there is substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land[1]. Additionally, the…

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: [2014] QCAT 172
Decision Date

CaseChat Overview and Summary

Edward Budgen sought relief from the Queensland Civil and Administrative Tribunal (QCAT) regarding issues with trees owned by his neighbour, William Collins. The primary concerns of Budgen were that branches and seed pods from the trees on Collins' property were falling onto Budgen's property, creating a safety risk and causing damage, and that the trees were obstructing Budgen's view of Morton Bay. Budgen sought orders for the removal and/or pruning of trees, roots, and other tree work, along with orders to enable such work to occur.

The central legal issue before the Tribunal was whether the trees on Collins' property constituted a risk of serious injury to any person, if there was a need to remedy, restrain, or prevent serious damage to Budgen's land or property, or if there was substantial, ongoing and unreasonable interference with the use and enjoyment of Budgen’s land. Additionally, the Tribunal had to consider whether the trees seriously obstructed sunlight or caused severe obstruction to a view from Budgen’s dwelling. The Tribunal had the authority to make orders for the removal or pruning of trees if it found that the trees met any of the aforementioned criteria.

The Tribunal dismissed Budgen's application, noting that there was no evidence presented that the trees posed a serious risk to person or property, or that they constituted substantial, ongoing, and unreasonable interference with Budgen's view. The arborist's report indicated that the trees were in good health and unlikely to cause serious damage in the foreseeable future. The Tribunal also found that Collins had already taken action to address some of Budgen's concerns by removing some trees and overhanging fronds. The Tribunal concluded that the tree keeper had taken sufficient action in line with the arborist’s recommendations and therefore dismissed the application.

The final orders made by the Tribunal were that the application by Mr Edward Budgen was dismissed.

Orders