Cunningham v Rivlin - [2024] QCAT 320

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cunningham and anor v Rivlin [2024] QCAT 320

PARTIES:

NIGEL FRANCIS CUNNINGHAM

(applicant)

PETER BURTON FITTOCK

(applicant)

v

MYLES RIVLIN

(respondent)

APPLICATION NO/S:

NDR070-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 August 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

1. The application for a tree dispute is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether leaf litter amounted to substantial, ongoing and unreasonable interference

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where leaf litter was alleged to have blocked a downpipe

Neighbourhood Disputes (Dividing Fences and Trees) Act 2019 (Qld), s 46(a)(ii), s 66(2)(b)(ii), s 66(5)(f), s 74(1)(b)

Boater & Anor v Kwok & Anor [2023] QCAT 144

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

Nigel Cunningham and Peter Fittock (‘the neighbours’) are the owners of a property in inner-city Brisbane. Dr Rivlin is the owner of the adjoining property (‘the tree-keeper’).
The neighbours suffered damage to their property on 23 November 2021 when water entered the lounge room of their property through the split system air-conditioner. They seek the cost of repair work to the air-conditioner overflow in the amount of $1,070.00 from the tree-keeper.
Directions were given on the 15 March 2023 for the matter to be set down for an on the papers hearing after 23 June 2023, and the matter came before me on 7 March 2024.
The neighbours allege in their application that there are three (3) trees on the tree-keepers property, which are situated adjacent to the boundary of their property; and that the trees overhung the boundary and extended to their house.
On 23 November 2021 the neighbours caused a plumber, a company trading as ‘Plumbing Patrol’, to attend their property, as water was entering through an air-conditioner head unit in the lounge room.
The plumber described the work completed on its invoice as follows:[1]
called out 23/11/21 for water flooding the house
cut air con line to prevent water going inside
went back 25/11/21 alter the pipework to prevent this happening again
run the drain machine down but could not get through, but water started to drain
run down the drain from the grates up top off the retaining wall they are clear to the back fence
there is a broken flexie pipe up near the retaining wall which has not been fixed it lets water at the drain in big rains
[1]Plumbing Patrol Invoice dated 24 January 2022.
The plumber invoiced for the work as follows:[2]
[2]Ibid.

Description

The Price

1 Materials

$25.00

1 After hours call-out

$330.00

6.5 Labour

$715.00

Subtotal

$972.73

GST

$97.27

Total charge

$1070.00

The neighbours allege that the cause of the event was as follows:[3]
My…

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 Cunningham v Rivlin

Details

AGLC: Cunningham v Rivlin [2024] QCAT 320
Case: [2024] QCAT 320
Decision Date: 5 August 2024

CaseChat Overview and Summary

Cunningham and Rivlin were neighbours who found themselves embroiled in a dispute concerning the alleged interference caused by leaf litter from a tree on Rivlin’s property. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) where Cunningham sought a remedy for what he claimed was substantial, ongoing, and unreasonable interference. The crux of the dispute was whether the leaf litter from Rivlin’s tree amounted to such interference as to warrant intervention by the tribunal.

The legal issues before the tribunal centred on the interpretation of what constitutes substantial, ongoing, and unreasonable interference within the context of tree disputes. Cunningham argued that the accumulation of leaf litter in his downpipes caused substantial interference, which was both ongoing and unreasonable. Rivlin, on the other hand, contended that the leaf litter did not reach the threshold required to be considered substantial interference under the applicable legislation.

The tribunal examined the evidence and relevant legislative provisions. It considered the frequency and volume of the leaf litter, the impact on Cunningham’s property, and the measures taken by both parties to mitigate the issue. The tribunal found that while the leaf litter did cause some inconvenience, it did not reach the level of substantial, ongoing, and unreasonable interference necessary to warrant a remedy under the legislation. Consequently, the tribunal dismissed Cunningham’s application for a tree dispute.

The tribunal’s decision was grounded in the specific circumstances of the case and the evidence presented. It found that the interference caused by the leaf litter, while not negligible, did not meet the statutory criteria for substantial, ongoing, and unreasonable interference. The tribunal’s ruling underscored the importance of demonstrating a significant impact to successfully bring a claim under the relevant legislative provisions. The tribunal dismissed the application and no further orders were made.

Orders

Orders of the court

1. The application for a tree dispute 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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Description	The Price
1 Materials	$25.00
1 After hours call-out	$330.00
6.5 Labour	$715.00
Subtotal	$972.73
GST	$97.27
Total charge	$1070.00