Ciottariello v Hoole - [2025] QCAT 65

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ciottariello v Hoole [2025] QCAT 65

PARTIES:

ANTONIO CIOTTARIELLO

(applicant)

v

RALPH WARWICK HOOLE
KERRY ANN HOOLE

(respondent)

APPLICATION NO/S:

NDR175-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 February 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where removal of trees unjustified – where leaf litter not excessive – where neighbour has pre-existing medical condition said to be exacerbated by maintenance of his property – whether presence of trees constitutes a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of land – whether trees pose risk of serious damage to neighbour’s land or property on the land – whether trees pose a risk of serious injury to any person

Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

QCAT Practice Direction No. 11 of 2020

Natural Assets Local Law 2003

Marsh v Baxter [2015] WASCA 169

Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203
Southern Properties (WA) Pty Ltd v Executive Director of the Dept of Conservation and Land Management [2012] WASCA 79

Thomsen v White [2012] QCAT 381

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

What is this proceeding about?

This proceeding is about a tree dispute. Mr Ciottariello complains about five trees situated on Mr Hoole’s and Ms Hoole’s land which he says are affecting his land. The proceeding has been progressing in the Tribunal since 2020. The dispute now falls to be finally determined on the papers.
Jurisdiction
I make the following findings:
(a)Mr Ciottariello is a ‘neighbour’;[1]
(b)Mr Hoole and Ms Hoole are ‘tree keepers’;[2]
(c)Five trees, the subject of the dispute, are situated on Mr and Ms Hoole’s land (collectively referred to as the trees);[3]
(d)The trees are:[4]
(i)      Tree 1:        Spotted gum
(ii)      Tree 2:        Spotted gum
(iii)     Tree 3:        Spotted gum
(iv)     Tree 4:        Spotted gum
(v)      Tree 5:        Grey gum.
[1]Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld), s 49(1)(a)(i) (‘ND Act’).
[2]Ibid, s 48(1)(a).
[3]Ibid, s 45, s 47.
[4]Report Michael Sowden dated 20 March 2022.
In these reasons I will refer to Mr Ciottariello as the neighbour and Mr and Ms Hoole as the tree keepers.
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged, as at the date of the application to the Tribunal, land is affected by a tree.[5]
[5]ND Act, s 61.
Section 46 of the Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) (‘ND Act’) provides:
46 When is land affected by a tree
Land is affected by a tree at 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 Ciottariello v Hoole

Details

AGLC: Ciottariello v Hoole [2025] QCAT 65
Case: [2025] QCAT 65
Decision Date: 7 February 2025

CaseChat Overview and Summary

Ciottariello v Hoole is a case before the court involving a dispute between neighbours over the removal of trees on the defendant's property. The plaintiff alleged that the defendant's removal of trees was unjustified and that the presence of the trees did not constitute a substantial, ongoing and unreasonable interference with his use and enjoyment of his land. The plaintiff also alleged that the trees did not pose a risk of serious damage to his land or property on the land or a risk of serious injury to any person. The defendant argued that the removal of the trees was justified and that the plaintiff's claims were without merit.

The legal issues before the court were whether the removal of the trees was justified, whether the presence of the trees constituted a substantial, ongoing and unreasonable interference with the plaintiff's use and enjoyment of his land, and whether the trees posed a risk of serious damage to the plaintiff's land or property on the land or a risk of serious injury to any person. The court found that the removal of the trees was justified as the defendant had a pre-existing medical condition that was exacerbated by the maintenance of his property and the presence of the trees. The court also found that the presence of the trees did not constitute a substantial, ongoing and unreasonable interference with the plaintiff's use and enjoyment of his land, and that the trees did not pose a risk of serious damage to the plaintiff's land or property on the land or a risk of serious injury to any person.

The court dismissed the plaintiff's application, finding that the removal of the trees was justified and that the plaintiff's claims were without merit. The court found that there was no evidence to support the plaintiff's claim that the trees interfered with his satellite television reception and that he had not provided any cogent evidence to support his assertions. The court held that the plaintiff's claims were speculative and based on unsupported assertions.

The court dismissed the plaintiff's application and made no orders. The defendant was therefore entitled to remove the trees from his property without further interference from the plaintiff.

Orders

Orders of the court

The application is dismissed.

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

The neighbour refers to the trees interfering with satellite television reception to his dwelling. The neighbour refers to a conversation he had with a technician regarding the installation of a satellite dish. The neighbour says that he has been unable to access satellite television services and has incurred the expense of additional data costs presumably as a result of his being required to access streaming services via cable. There is no statement of evidence or report by the technician or by a suitably qualified person. There is no cogent evidence offered by the neighbour supporting his assertion regarding the impact of the trees on satellite television reception other than the submissions to which I have referred. I am unable to make any findings about this issue in the absence of such evidence. Conclusion The application is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.