Bunyard v McManus

Case [2013] QCAT 258


CITATION: Bunyard & Anor v McManus [2013] QCAT 258
PARTIES: Raymond Arthur Bunyard
Beverly Anne Bunyard
(Applicants)
v
Joan McManus
(Respondent)
APPLICATION NUMBER: NDR115-12
MATTER TYPE: Other civil dispute matters
HEARING DATE: 15 May 2013
HEARD AT: Brisbane
DECISION OF: Bevan Hughes, Member
DELIVERED ON: 15 May 2013
DELIVERED AT: Maroochydore

ORDERS MADE:     

1.    Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the pruning of the Blackbutt tree described as Tree 1 in the arborist report to:

a.    completely remove the lowest lateral limb on the northern side of the trunk that extends over the property of Raymond Arthur Bunyard and Beverley Anne Bunyard back to its main trunk junction;

b.    prune the remaining canopy to behind the alignment of the rear (northern) fence line of 80 Karawatha Drive, Mountain Creek; and

c.    remove all accessible deadwoods greater than 25 millimetres in diameter throughout the remaining canopy.

2.    Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the removal of the Blackbutt tree described as Tree 3 in the arborist report.

3.    The pruning works are to comply with the requirements of Australian Standard 4373-2007 Pruning of amenity trees.

4.    All works are to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

5.    All works are to be at the cost of Joan McManus.

6.    All works are to be completed within 90 days of this order.

CATCHWORDS:

TREE DISPUTE – likely to cause serious injury or damage – location – trunk and canopy - likely to cause substantial, ongoing and unreasonable interference – leaves and flowers

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Edmonds v Yeates & Anor [2013] QCAT 7
Graham & Ors v Welch [2012] QCA 282
McDonald v Henry [2013] QCAT 87
Thomsen v White [2012] QCAT 2012 381
Wallace v Keg [2012] QCAT 466

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Raymond Arthur Bunyard in person
Beverley Anne Bunyard in person
RESPONDENT:

Joan McManus in person
Kerry McManus in person

REASONS FOR DECISION

What is this Application about?

  1. Raymond and Beverley Bunyard want their neighbour’s trees removed or at least cut to fence height.

  2. Their concerns are that: the trees overhang their property by at least five metres; possible damage could be caused by severe weather conditions; deadfall has caused “considerable damage” to their shed roof, stained the pavers in their backyard, blocked their guttering and fallen in their pool; and pollen from flowers is restricting their use of the pool causing an allergic reaction.

  3. Mrs Joan McManus admits she is the registered proprietor of 80 Karawatha Drive, Mountain Creek and Mr and Mrs Bunyard’s neighbour. Mrs McManus is a “tree keeper” as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).

  4. Tree 1 of the application is a Eucalyptus pilularis (Blackbutt), Tree 2 is an Acacia (Wattle), Tree…

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Details
AGLC
Bunyard v McManus [2013] QCAT 258
Case
[2013] QCAT 258
Decision Date

CaseChat Overview and Summary

The case of Bunyard v McManus involved a dispute between neighbours regarding the maintenance and pruning of a Blackbutt tree. The Bunyards, residents at 78 Karawatha Drive, Mountain Creek, sought relief against Joan McManus, the owner of the neighbouring property at 80 Karawatha Drive. The crux of the matter was the encroachment of tree branches and foliage from McManus's property onto the Bunyards' land, which the Bunyards argued constituted a nuisance and a hazard, likely to cause serious injury or damage.

The court was tasked with determining whether the trees in question constituted a nuisance, and if so, what relief should be granted. Specifically, the court needed to consider whether the trees were likely to cause substantial, ongoing, and unreasonable interference with the Bunyards' use and enjoyment of their property. The court also had to decide on the appropriate measures to mitigate any interference, including the pruning or removal of the trees, and who should bear the costs of such works.

The court found that the trees did indeed constitute a nuisance as they were likely to cause substantial, ongoing, and unreasonable interference. The court held that the trees were causing issues not only by encroaching over the Bunyards' property but also by shedding leaves and flowers onto their property. As a remedy, the court ordered that the McManus should arrange for the pruning of one tree and the removal of another, in accordance with specific guidelines to ensure safety and minimal disruption. The court emphasised that these works should be carried out by a qualified and insured arborist and at McManus's expense. The court also stipulated that all works must be completed within 90 days of the order.

In summary, the court's orders required McManus to prune one tree and remove another, ensuring that these actions comply with relevant safety standards, are performed by a suitably qualified arborist, and are at McManus's cost, to be completed within 90 days.

Orders

Orders of the court

1. Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the pruning of the Blackbutt tree described as Tree 1 in the arborist report to:

a. completely remove the lowest lateral limb on the northern side of the trunk that extends over the property of Raymond Arthur Bunyard and Beverley Anne Bunyard back to its main trunk junction;

b. prune the remaining canopy to behind the alignment of the rear (northern) fence line of 80 Karawatha Drive, Mountain Creek; and

c. remove all accessible deadwoods greater than 25 millimetres in diameter throughout the remaining canopy.

2. Joan McManus, the registered proprietor of the lot at 80 Karawatha Drive, Mountain Creek, will arrange for the removal of the Blackbutt tree described as Tree 3 in the arborist report.

3. The pruning works are to comply with the requirements of Australian Standard 4373-2007 Pruning of amenity trees.

4. All works are to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

5. All works are to be at the cost of Joan McManus.

6. All works are to be completed within 90 days of this order.

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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