Durrington and Kruger v Cassar - [2014] QCAT 609

CITATION:

Durrington and Kruger v Cassar and Anor [2014] QCAT 609

PARTIES:	John Durrington and Shane Kruger (Applicants)
v
Anthony Cassar and Brooke Cassar (Respondents)

APPLICATION NUMBER:

NDR217-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

7 November 2014

HEARD AT:

Maroochydore

DECISION OF:

Member McLean Williams

DELIVERED ON:

24 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Within 60 days of the date of these orders tree work is to be undertaken by the Respondent on the trees at the Respondent’s property that are identified in Mr Inman’s report as follows:

a. Tree No. 3 is to be removed.

b. Those portions of tree No. 5 that overhang the applicants’ property at 18 Fremantle Place is to be wholly removed, and the overall mass of the canopy of tree No. 5 is to be further reduced by the maximum extent possible, without thereby adversely impacting on the future viability of the tree.

c. The southern leader of tree No. 6 should be removed.

d. In respect of Tree No. 8, the 2 elongated branches growing towards the available light (as shown in figure 13 of Mr Inman’s report) is to be removed, and the canopy of the tree is to be reduced to the maximum extent possible without thereby adversely impacting on the future viability of the tree.

e. Tree No. 10 is to have its canopy thinned to the maximum extent possible without thereby impacting on the future viability of the tree.

f. The canopy of tree No. 11 is to be thinned to the maximum extent possible without thereby impacting on the future viability of the tree.

g. Tree No. 12 is to be removed.

h. Tree No. 13 is to be subject to thinning and a reduction of its overall canopy in order to improve sunlight.

CATCHWORDS:

TREE DISPUTE – where some tree branches overhanging onto neighbouring property and Applicants’ otherwise complaining of obstruction of sunlight – whether trees affecting the land – whether trees causing damage or ‘substantial, ongoing and unreasonable’ interference – meaning of ‘severe obstruction’ in the specific case of sunlight obstruction

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 46, s 66

APPEARANCES and REPRESENTATION (If any):

APPLICANT:

The Applicants were self-represented.

RESPONDENT:

The Respondents were self-represented.

REASONS FOR DECISION

I heard this matter at Maroochydore on 7 November 2014.
The Applicants are Mr John Durrington and Mr Shane Kruger, who are the joint owners and occupiers of a residence at 18 Fremantle Place at Kuluin on the Sunshine Coast.
On 21 November 2012 the Applicants commenced this appliction in relation to a tree dispute, pursuant to the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) against their neighbours, Mr Anthony Cassar and Mrs Brooke Cassar. This matter is one of three seperate (yet very similar) applications, commenced by adjoining neighbours at numbers 16, 18, and 20 Fremantle Place, each against Mr and Mrs Cassar. The three matters (NDR217-12; NDR238-12; and NDR020-13) were heard concurrently, and…

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 Durrington and Kruger v Cassar

Details

AGLC: Durrington and Kruger v Cassar [2014] QCAT 609
Case: [2014] QCAT 609
Decision Date: 24 November 2014

CaseChat Overview and Summary

The case of Durrington and Kruger v Cassar involved a dispute between the applicants, Durrington and Kruger, and the respondent, Cassar, over trees on the respondent's property that were causing interference with the applicants' property. The applicants complained of obstruction of sunlight and alleged that the trees were affecting their land and causing damage or substantial, ongoing and unreasonable interference. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court was required to decide included whether the trees were affecting the applicants' land, whether they were causing damage or severe obstruction, and what constituted 'severe obstruction' in the specific case of sunlight obstruction. The court had to consider the evidence and arguments presented by both parties and apply relevant legislation and case law to reach its decision.

The court found that the trees on the respondent's property were indeed causing interference with the applicants' property and that the interference was substantial, ongoing and unreasonable. The court held that the trees were affecting the applicants' land and that the interference was severe enough to warrant action. The court also considered the meaning of 'severe obstruction' in the context of sunlight obstruction and found that the applicants' evidence was sufficient to establish that the trees were causing severe obstruction.

The court ordered that the respondent undertake tree work within 60 days of the date of the orders. The orders specified the tree work to be undertaken on each of the identified trees, including removal or thinning of branches and canopies. The court also ordered that the tree work be carried out in a manner that did not adversely impact on the future viability of the trees. The court's decision provided relief to the applicants and addressed their concerns about the interference caused by the trees on the respondent's property.

Orders

Orders of the court

1. Within 60 days of the date of these orders tree work is to be undertaken by the Respondent on the trees at the Respondent’s property that are identified in Mr Inman’s report as follows:

a. Tree No. 3 is to be removed.

c. The southern leader of tree No. 6 should be removed.

e. Tree No. 10 is to have its canopy thinned to the maximum extent possible without thereby impacting on the future viability of the tree.

f. The canopy of tree No. 11 is to be thinned to the maximum extent possible without thereby impacting on the future viability of the tree.

g. Tree No. 12 is to be removed.

h. Tree No. 13 is to be subject to thinning and a reduction of its overall canopy in order to improve sunlight.

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.