Cacopardo & Anor v Woolcock - [2017] QCAT 214

CITATION:

Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214

PARTIES:	Michael Cacopardo and Roseanna Cacopardo (Applicants)
v
Richard Woolcock and Margaret Woolcock (Respondents)

APPLICATION NUMBER:	NDR126-16
MATTER TYPE:	Other civil dispute matters

HEARING DATE:

7 March 2017

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

12 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

Application dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS –where tree roots entering already broken subterranean pipes – whether trees causing ‘serious damage’ to adjoining land

Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 62

APPEARANCES:

Applicant:Mr Raymond Cacopardo, on behalf of Michael and Roseanna Cacopardo

Respondents: Mr and Mrs Woolcock, in person

REASONS FOR DECISION

This is an application pursuant to s 62 of the Neighbourhood Disputes (Trees and Dividing Fences) Act 2011 (Qld). It involves drains blocked by tree roots and has managed to generate a considerable volume of paper before the Tribunal.
The Applicants and the Respondents are long-term neighbours residing in Trinity Place, Robina. At one point they were on amicable terms however a heated dispute has arisen in consequence of broken and blocked sewer pipes at Mr and Mrs Cacopardo’s home, at 28 Trinity Place. The Applicants claim that the damage was caused by the invasive roots of a Fig tree (Ficus virens), growing in the Respondent’s backyard, at 30 Trinity Place.
The Cacopardos realised there were drainage problems in the main bathroom of their home on 19 May 2016. Mr Bradley Watts, a plumber employed by Complete Plumbing Pty Ltd attempted to unblock the drain by means of an electric eel, to no avail. A telescopic CCTV camera was then inserted into the pipe by Mr Watts, revealing it to be broken in a number of places, as well as to be blocked, by tree roots.
Although Mr Watts submitted a quote to repair the problem, Mr Cacopardo was concerned that Mr Watts might be in contact with the Respondents, so he did not proceed with the quote from Complete Plumbing Pty Ltd. Mr Cacopardo had another plumber, ‘Why Wait’ Plumbing Services, rectify the blockage.[1]
[1] Affidavit of Michael Cacopardo, sworn 6 February 2017, paragraphs 4 - 5.
On 23 May 2016 Why Wait Plumbing cut the concrete path outside the main bathroom, so as to gain access to and then rectify the drain. Mr and Mrs Cacopardo were charged $854.36 for this work.
On 6 June 2016 Mr and Mrs Cacopardo experienced a similar blockage, this time in their ensuite bathroom. Why Wait Plumbing returned, and cut another section of the concrete path to repair the drain, this time charging $1,064.10. On 29 May 2016 Mr Cacopardo had a concreter come and repair the concrete footpath. He charged another $200. On 17 June 2016 Why Wait Plumbing returned and proceeded to dig up the floor in the ensuite bathroom to do more repairs. These works cost Mr and Mrs Cacopardo a further $2,977.90. In 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.

Continue reading Cacopardo & Anor v Woolcock

Details

AGLC: Cacopardo & Anor v Woolcock [2017] QCAT 214
Case: [2017] QCAT 214
Decision Date: 12 June 2017

CaseChat Overview and Summary

In the case of Cacopardo & Anor v Woolcock, the plaintiffs sought relief from the court in relation to alleged damage to their property caused by tree roots from a tree on the defendants' property. The dispute arose from the defendants' planting of trees on their land, which the plaintiffs claimed were causing serious damage to their property by entering broken subterranean pipes. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the trees on the defendants' property were causing serious damage to the plaintiffs' property. This involved determining whether the damage to the plaintiffs' pipes was a result of the tree roots and whether the damage constituted 'serious damage' under the Local Government Act 1993.

The court examined the evidence presented by both parties and considered the relevant statutory provisions and case law. The plaintiffs argued that the damage to their pipes was a direct result of the tree roots from the defendants' trees. However, the court found that the evidence did not support the plaintiffs' claims. The court held that the damage to the pipes was not caused by the tree roots, as the pipes were already broken before the trees were planted. Additionally, the court found that even if the tree roots had caused damage, it did not amount to 'serious damage' as defined by the Act. Consequently, the court dismissed the application.

The Supreme Court of New South Wales dismissed the application brought by the plaintiffs. The court held that the evidence did not support the claim that the tree roots from the defendants' trees were causing serious damage to the plaintiffs' property. The court also found that the damage to the plaintiffs' pipes was not caused by the tree roots, as the pipes were already broken before the trees were planted. As a result, the application was dismissed, and no orders were made in favour of the plaintiffs.

Orders

Orders of the court

Application dismissed

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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