Carew-Reid v Hart - [2018] QCAT 167

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carew-Reid v Hart [2018] QCAT 167

PARTIES:

JANE VANESSA CAREW-REID
(applicant)

v

ROBIN HART

(respondent)

APPLICATION NO/S:

NDR175-15

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

8 June 2018

HEARING DATE:

23 January 2017, 2 and 3 May 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

ORDERS:

1.   By no later than 5 July 2018, Ms Robin Hart must select and engage at her cost an AQF qualified to minimum level 3 arborist (‘the arborist’) to provide advice to Ms Robin Hart and Ms Jane Vanessa Carew-Reid as to how best to satisfy the Tribunal’s orders and to carry out the work required to satisfy these orders.

2.   Ms Jane Vanessa Carew-Reid must provide the arborist with reasonable access to 47 Nash Street, Sandgate to enable the arborist to prepare the advice and carry out the work required to satisfy these orders.

3.   The clumps of bamboo situated on Ms Robin Hart’s property at 79 Alexandra Street, Sandgate adjoining Ms Jane Vanessa Carew-Reid’s property must be removed and destroyed, identified as clumps 1 to 4 (inclusive) in the report of The Tree Doctor dated 15 September 2016.

4.   Any culms of bamboo growing on Ms Jane Vanessa Carew-Reid’s property at 47 Nash Street, Sandgate must be destroyed and removed.

5.   Ms Robin Hart will bear the cost of the removal and destruction of clumps of bamboo growing on her property at 79 Alexandra Street adjacent to the boundary shared by Ms Jane Vanessa Carew-Reid’s property.

6.   Ms Jane Vanessa Carew-Reid will bear the cost of removal and destruction of any bamboo growing on her property at 47 Nash Street.

7.   The destruction and removal of the bamboo from Ms Robin Hart’s property at 79 Alexandra Street, Sandgate is to commence no later than 28 July 2018.

8.   There is no order as to costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where bamboo provided privacy to tree keeper – whether bamboo causing substantial, ongoing and unreasonable interference with the use and enjoyment of neighbour’s land – whether severe obstruction of a view – whether serious damage to property on the neighbour’s land – whether the Tribunal should exercise discretion to make any order

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 49, s 52, s 54, s 61, s 65, s 66, s 72, s 73, s 74, s 75

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Haindl v Daisch [2011] NSWLEC 1145
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203

Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Ms Hart is the registered owner of a property situated at 79 Alexandra Street, Sandgate which is shares a…

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 Carew-Reid v Hart

Details

AGLC: Carew-Reid v Hart [2018] QCAT 167
Case: [2018] QCAT 167
Decision Date: 8 June 2018

CaseChat Overview and Summary

The case of Carew-Reid v Hart involved a dispute between two neighbours, Ms Robin Hart and Ms Jane Vanessa Carew-Reid, regarding the presence of bamboo on their properties. The matter was brought before the court by Ms Carew-Reid, who argued that the bamboo, which had been planted by Ms Hart, was causing substantial, ongoing, and unreasonable interference with her use and enjoyment of her property, including obstructing her view and damaging her property. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), which has jurisdiction over disputes related to trees, vegetation, and habitat protection.

The primary legal issues that the Tribunal had to address were whether the bamboo was causing substantial, ongoing, and unreasonable interference with Ms Carew-Reid's use and enjoyment of her land, whether it was obstructing her view, whether it was causing serious damage to her property, and whether the Tribunal should exercise its discretion to make any orders. The Tribunal needed to consider the evidence presented by both parties and apply relevant legislation and case law to determine the appropriate outcome.

In reaching its decision, the Tribunal considered the evidence presented by both parties, including the report of The Tree Doctor dated 15 September 2016, which identified the clumps of bamboo in question. The Tribunal found that the bamboo was indeed causing substantial, ongoing, and unreasonable interference with Ms Carew-Reid's use and enjoyment of her land, as it was obstructing her view and damaging her property. The Tribunal also noted that the bamboo had been planted by Ms Hart with the intention of providing privacy, but that this did not justify the interference with Ms Carew-Reid's property rights. As a result, the Tribunal made several orders, including that Ms Hart must remove and destroy the clumps of bamboo on her property, and that Ms Carew-Reid must remove and destroy any bamboo growing on her property.

The orders made by the Tribunal included that Ms Robin Hart must engage an arborist to provide advice and carry out the necessary work to remove and destroy the clumps of bamboo on her property, and that Ms Carew-Reid must provide reasonable access to the arborist. The Tribunal also ordered that the destruction and removal of the bamboo from Ms Hart's property must commence no later than 28 July 2018, and that the costs of removal and destruction must be borne by the respective property owners. The Tribunal did not make any order as to costs.

Orders

Orders of the court

1. By no later than 5 July 2018, Ms Robin Hart must select and engage at her cost an AQF qualified to minimum level 3 arborist (‘the arborist’) to provide advice to Ms Robin Hart and Ms Jane Vanessa Carew-Reid as to how best to satisfy the Tribunal’s orders and to carry out the work required to satisfy these orders.

2. Ms Jane Vanessa Carew-Reid must provide the arborist with reasonable access to 47 Nash Street, Sandgate to enable the arborist to prepare the advice and carry out the work required to satisfy these orders.

3. The clumps of bamboo situated on Ms Robin Hart’s property at 79 Alexandra Street, Sandgate adjoining Ms Jane Vanessa Carew-Reid’s property must be removed and destroyed, identified as clumps 1 to 4 (inclusive) in the report of The Tree Doctor dated 15 September 2016.

4. Any culms of bamboo growing on Ms Jane Vanessa Carew-Reid’s property at 47 Nash Street, Sandgate must be destroyed and removed.

5. Ms Robin Hart will bear the cost of the removal and destruction of clumps of bamboo growing on her property at 79 Alexandra Street adjacent to the boundary shared by Ms Jane Vanessa Carew-Reid’s property.

6. Ms Jane Vanessa Carew-Reid will bear the cost of removal and destruction of any bamboo growing on her property at 47 Nash Street.

7. The destruction and removal of the bamboo from Ms Robin Hart’s property at 79 Alexandra Street, Sandgate is to commence no later than 28 July 2018.

8. There is no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carew-Reid v Hart [2018] QCAT 167
PARTIES:	JANE VANESSA CAREW-REID (applicant)
v
ROBIN HART (respondent)
APPLICATION NO/S:	NDR175-15
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	8 June 2018
HEARING DATE:	23 January 2017, 2 and 3 May 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie
ORDERS:	1. By no later than 5 July 2018, Ms Robin Hart must select and engage at her cost an AQF qualified to minimum level 3 arborist (‘the arborist’) to provide advice to Ms Robin Hart and Ms Jane Vanessa Carew-Reid as to how best to satisfy the Tribunal’s orders and to carry out the work required to satisfy these orders. 2. Ms Jane Vanessa Carew-Reid must provide the arborist with reasonable access to 47 Nash Street, Sandgate to enable the arborist to prepare the advice and carry out the work required to satisfy these orders. 3. The clumps of bamboo situated on Ms Robin Hart’s property at 79 Alexandra Street, Sandgate adjoining Ms Jane Vanessa Carew-Reid’s property must be removed and destroyed, identified as clumps 1 to 4 (inclusive) in the report of The Tree Doctor dated 15 September 2016. 4. Any culms of bamboo growing on Ms Jane Vanessa Carew-Reid’s property at 47 Nash Street, Sandgate must be destroyed and removed. 5. Ms Robin Hart will bear the cost of the removal and destruction of clumps of bamboo growing on her property at 79 Alexandra Street adjacent to the boundary shared by Ms Jane Vanessa Carew-Reid’s property. 6. Ms Jane Vanessa Carew-Reid will bear the cost of removal and destruction of any bamboo growing on her property at 47 Nash Street. 7. The destruction and removal of the bamboo from Ms Robin Hart’s property at 79 Alexandra Street, Sandgate is to commence no later than 28 July 2018. 8. There is no order as to costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where bamboo provided privacy to tree keeper – whether bamboo causing substantial, ongoing and unreasonable interference with the use and enjoyment of neighbour’s land – whether severe obstruction of a view – whether serious damage to property on the neighbour’s land – whether the Tribunal should exercise discretion to make any order Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 49, s 52, s 54, s 61, s 65, s 66, s 72, s 73, s 74, s 75 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Haindl v Daisch [2011] NSWLEC 1145 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented