Davies v Gaus - [2023] QCAT 127

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Davies & Anor v Gaus & Ors [2023] QCAT 127

PARTIES:

GERALDINE INGRID DAVIES
WAYNE DAVIES

(applicants)

v

CAROLINE GAUS
MARK JOHN O’DONOHUE
RODNEY WEBSTER
CHRIS WEBSTER
BRISBANE CITY COUNCIL

(respondents)

APPLICATION NO/S:

NDR023-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 March 2023

HEARING DATE:

15 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether the Tribunal has jurisdiction to make an order - whether the tree is maintained as a condition of a development approval – whether an order would be appropriate if the Tribunal had jurisdiction

Natural Asset Local Law 2003, s 3, s 17, Schedule 1, Schedule 4

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 46, s 47, s 48, s 52, s 61, s 65, s 66, s 72, s 74, s 75, s 84
Planning Act 2016 (Qld), s 73

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

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247

Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
Robertson v Darvas [2016] QCAT 136

Thomsen v White [2012] QCAT 381

APPEARANCES &
REPRESENTATION:

Applicants:

G I Davies

First Respondents:

Second Respondents:

Third Respondent:

M J O’Donohue

R Webster

W Manners

REASONS FOR DECISION

Mr and Mrs Davies commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).[1] At the time the Application was filed Drs Gaus and O’Donohue were registered proprietors of the land on which a mature weeping fig tree (Tree) was located (original Treekeepers).[2] The evidence is that the Davies purchased their property in 2010 and the original Treekeepers purchased their property in 2012. The Tree is located near the common boundary of their properties.
[1]Exhibit 1, filed 7 February 2020.
[2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48 (the ND Act).
The Davies originally sought the following orders in relation to the Tree:
(a)Remove or prune branches;
(b)Remove or prune roots;
(c)Other tree work;
(d)The treekeepers apply for consent or other authorisation from a government authority;
(e)The treekeepers pay the costs of carrying out the tree work;
(f)Compensation for damaging land or property in the amount of $4,958;
(g)Appropriately qualified arborist prepare a report.
During these proceedings Mr and Mrs Webster purchased the land on which the Tree is located and were joined as respondents (current Treekeepers).[3]
[3]Ibid, s 84.
The undisputed evidence is that:
(a)the canopy of the Tree extends over a number of adjoining lots including that of the Davies.
(b)the branches extend more than 50 cm over the Davies’ land at a height of more than 2.5 m such that the common law right of abatement does not assist to resolve the dispute.

Jurisdiction

I find that the Tribunal does not have jurisdiction to make orders…

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 Davies v Gaus

Details

AGLC: Davies v Gaus [2023] QCAT 127
Case: [2023] QCAT 127
Decision Date

CaseChat Overview and Summary

The applicants, Mr and Mrs Davies, commenced proceedings against the respondents, Drs Caroline Gaus and Mark O'Donohue (original Treekeepers), Mr and Mrs Rodney Webster (current Treekeepers), and the Brisbane City Council, seeking orders in relation to a mature weeping fig tree on the respondents' property. The applicants sought orders to remove or prune branches, remove or prune roots, undertake other tree work, obtain consent for tree work, pay for tree work, and compensation for damage to their land or property. The original Treekeepers and the current Treekeepers denied the applicants' claims and stated that they had taken steps to address the issues raised by the applicants. The Brisbane City Council participated in the proceedings but did not oppose an agreement being reached between the parties.

The Tribunal found that it did not have jurisdiction to make any orders in relation to the tree because it was maintained as a condition of a development approval. The Tribunal also found that even if it did have jurisdiction, the applicants had not established their entitlement to orders on the balance of probabilities. The Tribunal was not satisfied that the tree had caused serious injury, serious damage, or substantial, ongoing and unreasonable interference with the applicants' use and enjoyment of their land. The Tribunal also found that the original Treekeepers had taken steps to address the issues raised by the applicants in a relatively timely manner.

In view of the findings, the Tribunal dismissed the application and made no orders for compensation or costs. The Tribunal noted that any ongoing orders for maintenance of the tree should be directed to the current Treekeepers because they are in control of the tree and the land on which it is situated.

Orders