Campbell v Blackshaw & Evans

Case [2017] ACAT 64


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 207

House 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

Warren v Coombes (1979) 142 CLR 531

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 appeal before the court involves Campbell, the appellant, who challenges a decision made by the Tribunal against Blackshaw & Evans, the respondents. The crux of the dispute pertains to an alleged nuisance caused by trees on the respondents' property. Specifically, the appellant contends that tree roots from the respondents' property obstructed a drain leading to Campbell's property, and that overhanging branches also constituted a nuisance. The Tribunal had ruled in favour of the respondents, asserting that the removal of the trees was the only practicable solution to resolve the nuisance. The appellant also questioned the adequacy of the written reasons provided by the Tribunal and sought an adjournment to the hearing of the appeal, which was denied.

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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