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Edwin & Anor v Campbell & Anor

Edwin & Anor v Campbell & Anor

Case [2024] QCAT 86 19 February 2024

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Edwin & Anor v Campbell & Anor [2024] QCAT 86

PARTIES:

PATRICK JOSEPH EDWIN
PRATHIBHA ELIZABETH ANN JOSE

(applicants)

v

RAYMOND JOHN CAMPBELL
LESLEY ELLEN CAMPBELL

(respondents)

APPLICATION NO:

NDR003-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.       The respondents reduce the height of the bamboo and trees on the respondents’ land on or near the common boundary between the applicants’ land and the respondents’ land identified in the data summary on page 5 of the vegetation impact assessment report by Mr Lonsdale of Frontier Tree Services filed in the Tribunal on 13 September 2022 to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home.

2.       The respondents cut and remove any culms of bamboo and branches of trees on or near the common boundary that overhang the applicants’ land.

3.       The work required by orders 1 and 2 be carried out:

(a)     initially within 90 days of this order and thereafter not less than annually;

(b)     by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and

(c)     at the respondents’ cost.

4.       The applicants provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicants’ land to carry out the work on not less than ten days’ notice by email from the respondents to the applicants.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE RESOLUTION –

TREES – loss of views – whether there are views that existed when that the applicants took possession of their land – the locations from which the views were seen – the extent of the views lost – whether there is a risk of serious injury to a person on the applicants’ land – leaf litter – what are the appropriate orders

Neighbourhood Dispute Resolution (Dividing

Fences and Trees) Act 2011 (Qld), s 45, s 46, s 48, s 49, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 74, s 75

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 112

Barber v Kyriakides [2007] NSWLEC 292

Belcher v Sullivan [2013] QCATA 304
Calvisi v Brisbane City Council (2008) 1 PDQR 374
Finch v Grahle [2017] QCAT 80
Graham & Ors v Welch [2012] QCA 282
Haindl v Daisch [2011] NSWLEC 1145
Humphries & Anor v Poljak [1992] VicRp 58; [1992] VR 129
Leonardi v Watson & Harloe [2015] QCATA 192
Tenacity Consulting v Warringah [2004] NSWLEC 140
Thomson v White [2012] QCAT 381

Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Application

The applicants have made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)…

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 Edwin & Anor v Campbell & Anor

Details

AGLC: Edwin & Anor v Campbell & Anor [2024] QCAT 86
Case: [2024] QCAT 86
Decision Date: 19 February 2024

CaseChat Overview and Summary

The case of Edwin & Anor v Campbell & Anor was heard in the Local Court, where the applicants sought relief from the overgrown vegetation on the respondents’ land that was obstructing their views and potentially causing harm. The applicants, Mr. and Mrs. Edwin, claimed that the vegetation, consisting of bamboo and trees, had significantly reduced their visual enjoyment of their property and posed a risk of injury due to overhanging branches. The respondents, Mr. and Mrs. Campbell, maintained that the vegetation was within their rights as property owners and that the applicants' concerns were exaggerated.

The legal issues before the court included determining whether there were views that existed when the applicants took possession of their land, identifying the locations from which these views were enjoyed, assessing the extent of the views lost, and evaluating the risk of serious injury from the vegetation. Additionally, the court had to consider the appropriate orders to remedy the situation, including the reduction of the vegetation to a reasonable height and the removal of overhanging branches, as well as the frequency and method of such work.

In reaching its decision, the court examined evidence from both parties, including expert reports on the impact of the vegetation. The court found that the applicants had established the existence of views that were obstructed by the respondents’ vegetation. It was determined that the vegetation significantly diminished the applicants' visual enjoyment and posed a risk of injury. The court considered the necessity of the vegetation for the respondents' enjoyment and the potential harm to the applicants and concluded that the benefits to the applicants of reducing the vegetation outweighed any detriment to the respondents. Accordingly, the court ordered the respondents to reduce the height of the vegetation and remove overhanging branches, with specific instructions on the timing, method, and cost of the work.

The final orders of the court required the respondents to reduce the height of the bamboo and trees to the ridge line of their home when viewed from the ground floor of the applicants’ home, remove any overhanging branches, and carry out the work within specified timeframes and by qualified personnel at their own expense. The applicants were also required to provide access to their property for the arborists to perform the necessary work.

Orders

Orders of the court

1. The respondents reduce the height of the bamboo and trees on the respondents’ land on or near the common boundary between the applicants’ land and the respondents’ land identified in the data summary on page 5 of the vegetation impact assessment report by Mr Lonsdale of Frontier Tree Services filed in the Tribunal on 13 September 2022 to the ridge line of the respondents’ home when viewed from the ground floor of the applicants’ home.

2. The respondents cut and remove any culms of bamboo and branches of trees on or near the common boundary that overhang the applicants’ land.

3. The work required by orders 1 and 2 be carried out:

(a) initially within 90 days of this order and thereafter not less than annually;

(b) by an Australian Qualified Framework level 4 arborist with relevant insurance cover; and

4. The applicants provide the Australian Qualified Framework level 4 arborist engaged to carry out the work required by orders 1 and 2 with access to the applicants’ land to carry out the work on not less than ten days’ notice by email from the respondents to the applicants.

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.

Citations

AGLC Citation

Edwin & Anor v Campbell & Anor [2024] QCAT 86

Most Recent Citation

McDonald v Connolly [2024] QCAT 139

Cases citing this decision · 1 of 1 shown

McDonald v Connolly
[2024] QCAT 139 Para 19

…e context of leaf litter, I respectfully adopt the following statements extracted by Member Scott-Mackenzie in Edwin & Anor v Campbell & Anor :[4] [4][2024] QCAT 86, [63]-[64]. [63] In Barber v Kyriakides , a decision of the New South Wales Land and Environment Court, the Court formulated the principle to be appl…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Finch v Grahle
[2017] QCAT 80 Para 2

…er will not, of itself, be sufficient to constitute a substantial, ongoing, and unreasonable interference with the use and enjoyment of land.[32] [29][2017] QCAT 80. [30][2015] QCAT 70. [31][2012] QCAT 381. [32]Ibid, at [24].…
Nichol v Campbell
[2016] QCAT 57 Para 11

…ions of the Tribunal in Nichol v Campbell [2] and Vecchio v Papavasiliou [3] and the Appeal Tribunal in Laing & Anor v Kokkinos & Anor (No 2) [4]. [2][2016] QCAT 57. [3][2015] QCAT 70. [4][2013] QCATA 247.…
Leonardi v Watson & Harloe
[2015] QCATA 192 Para 4

…ions including those the adjudication of which is now our responsibility.[26] [24][1992] VicRp 58; [1992] VR 129. [25][2015] QCATA 192, at [18]. [26]Ibid, at 140.…
Vecchio v Papavasiliou
[2015] QCAT 70 Para 11

…l in Nichol v Campbell [2] and Vecchio v Papavasiliou [3] and the Appeal Tribunal in Laing & Anor v Kokkinos & Anor (No 2) [4]. [2][2016] QCAT 57. [3][2015] QCAT 70. [4][2013] QCATA 247.…
Belcher v Sullivan
[2013] QCATA 304 Para 3

…ortance. [24] Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided. [33][2013] QCATA 304.…
Laing & Anor v Kokkinos & Anor (No 2)
[2013] QCATA 247 Para 11

…ell [2] and Vecchio v Papavasiliou [3] and the Appeal Tribunal in Laing & Anor v Kokkinos & Anor (No 2) [4]. [2][2016] QCAT 57. [3][2015] QCAT 70. [4][2013] QCATA 247.…
Graham v Welch
[2012] QCA 282 Para 1

…ide the basis for ordering removal of or intervention with an urban tree.[28] [27][2007] NSWLEC 292. [28]Ibid, at [20]. See also Graham & Ors v Welch [2012] QCA 282.…
Thomsen v White
[2012] QCAT 381 Para 2

…constitute a substantial, ongoing, and unreasonable interference with the use and enjoyment of land.[32] [29][2017] QCAT 80. [30][2015] QCAT 70. [31][2012] QCAT 381. [32]Ibid, at [24].…
Haindl v Daisch
[2011] NSWLEC 1145 Para 7

…art of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view.[19] [18][2011] NSWLEC 1145. [19]Ibid, at [64].…
Calvisi v Brisbane City Council
[2008] QPEC 45 Para 3

…eighbour’s land, that existed when the neighbour took possession of the land. The remedy is a statutory remedy, and it is discretionary.[17] [16] Calvisi v Brisbane City Council (2008) 1 PDQR 374, at 381-382. See also Laing & Anor v Kokkinos & Anor (No. 2 ), at [31]. [17] Laing & Anor v Kokkinos & Anor (No. 2) , at [32].…
Barker v Kyriakides
[2007] NSWLEC 292 Para 1

…r small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.[28] [27][2007] NSWLEC 292. [28]Ibid, at [20]. See also Graham & Ors v Welch [2012] QCA 282.…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 8

…ls of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.[21] [20][2004] NSWLEC 140, at [26]-[28]. [21]Ibid, at [28].…

Legislation cited in this decision · 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
112 2 mentions (from Para 1)
Land Title Act 1994 (Qld)
1 mention (from Para 5)
Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld)
45 1 mention
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
1 mention (from Para 1)
Transport Accident Act 1986 (Vic)
1 mention (from Para 4)