Carroll v Eager - [2013] QCAT 293

CITATION:

Carroll v Eager [2013] QCAT 293

PARTIES:	Leonard John Carroll Applicant)
v
Elaine Eager (Respondent)

APPLICATION NUMBER:

NDR120-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

16 May 2013 and 4 June 2013

HEARD AT:

Brisbane

DECISION OF:

Christine Jones, Member

DELIVERED ON:

18 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed

CATCHWORDS:

TREE DISPUTE – where overhanging branches creating leaf and deadwood litter on neighbouring property; whether causing substantial, ongoing and unreasonable interference; whether serious damage to property caused by trees

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
Graham & Ors v Welsh [2012] QCA 282
Thomsen v White [2012] QCAT 381.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Leonard John Carroll in person on 16 May 2013 and represented by his son, Mr Christopher Carroll, by telephone on 4 June 2013

RESPONDENT:

Mrs Elaine Eager by telephone on 16 May 2013 and 4 June 2013

REASONS FOR DECISION

Mrs Eager is a tree keeper as defined under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. She owns 2 adjoining properties at Deception Bay. She does not live on the property. It is rented.
Mr Carroll is her neighbour. He owns and lives on his property. Mr Carroll has applied to have branches of trees situated on Mrs Eager’s property removed or pruned. He has also applied for compensation for damage he says has been caused to his property by the trees. There were originally 7 trees which were the subject of the application.
The tribunal appointed Mr Michael Sowden, a qualified arborist, to provide a tree assessment report.[1] At the time of his inspection one of the trees had been removed and a further 2 trees were removed by the time of the hearing.
[1] Tree Assessment Report dated 10 November, 2012
The remaining 4 trees overhang the front of Mr Carroll’s property and are:
a) A healthy silky oak. Its canopy spreads 3 metres laterally over Mr Carroll’s property
b) 3 healthy cadaghi gum trees that form a dense clump of vegetation with canopies that spread 6 to 8 metres laterally over Mr Carroll’s property.
The removal of the 3 trees, which overhung the back of Mr Carroll’s property, has addressed some of the damage and interference identified in the original application. At the hearing, the remaining issues concerned allegations of serious damage to property, in particular to a dividing fence, and substantial, ongoing and unreasonable interference with Mr Carroll’s use and enjoyment of his property.
The tribunal can only make an order about a tree if various threshold matters are met.[2] Those matters are uncontroversial in this case and I am so satisfied.
[2] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, ss 42, 45, 47, 48, 59, 65.
The tribunal can only make an order about a tree if it is to prevent serious injury to a person; or to remedy, restrain or prevent serious damage to a neighbour’s land or property, or substantial, ongoing and unreasonable…

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 Carroll v Eager

Details

AGLC: Carroll v Eager [2013] QCAT 293
Case: [2013] QCAT 293
Decision Date

CaseChat Overview and Summary

In the matter of Leonard John Carroll versus Elaine Eager, the applicant, Mr Carroll, sought an order for the removal or pruning of overhanging branches and compensation for damage caused by trees on the respondent's property. The dispute arose from the substantial overhang of branches and the accumulation of leaves and deadwood on Mr Carroll's property, which he claimed caused significant interference with his use and enjoyment of his land. The tribunal, Christine Jones, Member, considered the application and ultimately dismissed it.

The primary legal issues before the tribunal were whether the overhanging branches constituted a substantial, ongoing, and unreasonable interference with Mr Carroll's use and enjoyment of his property and whether the trees had caused serious damage to his property. The tribunal applied the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and relevant case law to determine if the threshold criteria for ordering tree removal or compensation were met.

The tribunal found that although the overhanging branches caused inconvenience and necessitated regular maintenance, it did not amount to a substantial, ongoing, and unreasonable interference. The tribunal referred to previous QCAT decisions and the Appeal Court decision of Graham & Ors v Welsh, which emphasised the aesthetic and ecological importance of trees in urban landscapes. The tribunal concluded that it was reasonable to expect urban residents to undertake regular maintenance to retain the benefits of having trees. Consequently, the tribunal was not satisfied that the tree debris constituted a substantial, ongoing, and unreasonable interference with Mr Carroll's use and enjoyment of his land.

The application was dismissed.

Orders