ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CAMPBELL v BLACKSHAW & EVANS (Appeal) [2017] ACAT 64
AA 54/2016
Catchwords: APPEAL – civil dispute – nuisance – trees – whether the Tribunal erred in finding that the trees on the appellants property caused a nuisance from tree roots blocking the drain and from overhanging branches – whether the Tribunal erred in finding that the removal of the trees was the only practicable option to remedy nuisance – discretionary decision – no absolute proof that the trees caused the drain blockage – adequacy of written reasons – appeal procedure – refusal to adjourn hearing of appeal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 5, 28, 60, 82
Legislation Act 2001 s 179
Cases cited:Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Blackshaw & Evans v Campbell [2016] ACAT 80
Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108
B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Collins v Urban [2014] NSWCATAP17
Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207House v R (1936) 55 CLR 499
Mansour v Dangar [2017] ACAT 49
Mifsud v Campbell (1991) 21 NSWLR 725
NSW Police Force v Newby [2009] NSWWCCPD 75
Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
Robson v Leischke [2008] NSWLEC 152
Tribunal: Presidential Member M-T Daniel
Date of Orders: 30 August 2017
Date of Reasons for Decision: 30 August 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 54/2016
BETWEEN:
MARYANNE CAMPBELL
Appellant
AND:
ADAM BLACKSHAW
ROBYN EVANS
Respondents
TRIBUNAL:Presidential Member M-T Daniel
DATE:30 August 2017
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
………………………………..
Presidential Member M-T Daniel
REASONS FOR DECISION
Introduction
1.On 16 September 2016 the ACT Civil and Administrative Tribunal (Tribunal) after considering a nuisance application (the nuisance application) made orders requiring Ms Campbell (the appellant) to remove nine evergreen trees growing on her property (the nuisance orders).[1] The trees are located on or adjacent to the boundary between the appellant’s property and the property of Mr Blackshaw and Ms Evans (the respondents). The Tribunal ordered removal of the trees because it was satisfied that the trees were causing a nuisance to the respondents, and that removal of the trees was the only practicable option to remedy that nuisance.
[1] Matter XD 1362/2015 published as Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108
2.The parties had been in dispute over the need to repair their boundary fence, and the trees situated on the boundary, since around 2010. In separate proceedings under the Common Boundaries Act 1981 between the same parties[2], the Tribunal on 14 May 2014 and 31 July 2014 had made orders for the construction…
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- AGLC
- Campbell v Blackshaw & Evans [2017] ACAT 64
- Case
- [2017] ACAT 64
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining two primary legal issues: first, whether the Tribunal was correct in its finding that the trees on the respondents' property caused a nuisance, and second, whether the Tribunal erred in concluding that the removal of the trees was the only feasible option to remedy the nuisance. Additionally, the court examined the adequacy of the written reasons provided by the Tribunal and the procedural fairness of denying the appellant's request for an adjournment.
In its reasoning, the court found that while there was evidence suggesting a connection between the trees and the drain blockage, it did not rise to the level of absolute proof required to substantiate the Tribunal's findings. The court also considered the discretionary nature of the Tribunal's decision and noted that it was within the Tribunal's authority to determine the most practical solution to the nuisance. Regarding the adequacy of the written reasons, the court determined that the reasons provided were sufficient to enable a meaningful review of the Tribunal's decision. Lastly, the court assessed the Tribunal's decision to deny the adjournment request and found no procedural unfairness that would warrant overturning the Tribunal's decision.
The court dismissed the appeal, affirming the Tribunal's findings and decisions. The appeal was rejected on the grounds that the Tribunal had not erred in its conclusions and that the reasons provided were adequate for the purposes of judicial review. The court held that the removal of the trees was a reasonable and practicable solution to the nuisance, and that the denial of the adjournment request did not prejudice the appellant's case.
Orders
Orders of the court
ORDER
The Tribunal orders that:
1. The appeal is 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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