Evans v North - [2021] QCAT 332

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Evans v North & Anor [2021] QCAT 332

PARTIES: JOHN CHRISTIAN RANDALL EVANS

(applicant)

v

DEBORAH ANNE DE LACY NORTH

STEPHEN JAMES MCCORMICK
(respondents)

APPLICATION NO/S:

NDR100-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

14 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application to reopen the proceedings is refused.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicant filed a tree dispute application against the respondent – where the applicant contends that the tree obstructs their view – whether the tribunal may make orders in relation to the obstruction of a view.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – where the applicant filed a tree dispute application against the respondent – where the applicant was not the neighbour – where tribunal initiated an application for summary dismissal – where submissions were not referred to by the Tribunal member - where the matter was subsequently dismissed – where a complaint was filed – whether the complaint could be taken as an application to reopen the matter – whether there was a ground for reopening the matter.

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 66(3)(a), s 66(3)(b)(ii)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 49(3), s 121(4), 138(1), sch 3 (definition of ‘reopening ground’)

Bose v Weir [2020] QCATA 7
Nichol v Campbell [2016] QCATA 204
Vecchio v Papavasiliou [2015] QCAT 70

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

This proceeding has had an unfortunate history in the tribunal. Sadly, this decision will not change that.
In July 2020 Mr Evans filed an application for a tree dispute. Unfortunately, Mr Evans is not the owner of the land affected by the trees. The owner of the land is Mr Evans’s wife, Muriel Evans.
In the application, Mr Evans complained about trees and a fence located on adjoining land owned by Mr McCormack and Ms North. The principal complaint by Mr Evans is that the trees and fence obstruct the views from the property at which he resides.
Quite evidently, the tribunal has no jurisdiction in respect of the complaints about the fence. It may also be that the tribunal has no jurisdiction in respect of the complaints regarding the trees, at least insofar as those complaints relate to the obstruction of a view. It seems that Mrs Evans purchased vacant land and then constructed a dwelling upon it. The tribunal may make orders in relation to a tree as may be appropriate to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of land. Where that interference is said to be an obstruction of a view, the obstruction must be a severe obstruction of…

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 Evans v North

Details

AGLC: Evans v North [2021] QCAT 332
Case: [2021] QCAT 332
Decision Date

CaseChat Overview and Summary

The applicant, Mr John Evans, sought to have a tree dispute application against the respondents, Ms Deborah North and Mr Stephen McCormick, reopened. The initial application for a tree dispute was dismissed for an error by the tribunal registry. Mr Evans then filed a complaint about the dismissal and sought to have the proceedings reopened. The tribunal member made directions for submissions to be filed on whether the complaint should be taken as an application to reopen the proceedings. The respondents submitted that the complaint was not an application to reopen and that there was no reopening ground.

The tribunal considered whether the complaint could be taken as an application to reopen and whether a reopening ground existed. The tribunal found that the complaint was not an application to reopen as it was not filed in the proceedings. Further, the tribunal found that there was no reopening ground as the proceedings were decided on the papers and there was no significant new evidence. The application to reopen was therefore refused.

The tribunal observed that the dismissal of the initial application for a tree dispute was unfortunate but there was no basis upon which the proceedings could be reopened. Mr Evans could appeal the dismissal of the initial application. Alternatively, Mrs Evans, the actual owner of the property, could file a further application for a tree dispute if the President or Deputy President considered it appropriate in the interests of justice.

Orders