Finch v Grahle

Case [2017] QCAT 80
CITATION: Finch v Grahle [2017] QCAT 80
PARTIES: Desmond John Finch
(Applicant)
v
Richard Hilton Grahle
(Respondent)
APPLICATION NUMBER: NDR052-16
MATTER TYPE: Other civil dispute matters
HEARING DATE: 13 February 2017
HEARD AT: On the papers
DECISION OF: Senior Member Brown
DELIVERED ON: 14 March 2017
DELIVERED AT: Brisbane
ORDERS MADE: 1.    Richard Grahle must pay to Desmond John Finch the amount of $350.00 in respect of the cost of the tree works, upon the completion of the tree works.
CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Where land affected by a tree situated on adjoining land – Where removal of tree branch appropriate to prevent serious injury to a person or serious damage to property or land – Where agreement reached between parties as to the works to be undertaken – Where it is necessary for the Tribunal to make an order relating to the cost of the work required. 

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 52(1), s 61, s 66(2)(a), s 66(2)(b)(i), s 66(2)(b)(ii), s 66(3)(a), s 66(3)(b)(i), s 66(5)(e)

Thomsen v White [2012] QCAT 381
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 Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. Mr Finch and Mr Grahle are neighbours. They have, quite commendably, reached agreement about certain work to be carried out on trees situated on Mr Grahle’s land (“the tree work”). Specifically, four (4) trees are to be removed. The only issue for determination is who should pay for the tree work. In accordance with directions made by the Tribunal, the parties have filed submissions addressing the issue for determination.[1]

    [1]Directions made 22 September 2016.

The statutory framework

  1. The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,[2] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,[3] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[4]

    [2]NDA s 66(2)(a).

    [3]Ibid s 66(2)(b)(i).

    [4]Ibid s 66(2)(b)(ii).

  2. For interference that is an obstruction of sunlight, the tree must rise at least 2.5 metres above the ground[5] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.[6]

    [5]Ibid 66(3)(a).

    [6]Ibid s 66(3)(b)(i).

  3. A neighbour includes the registered owner of freehold land affected by a tree.[7] A tree keeper includes the registered owner of freehold land on which a tree is situated.[8]

    [7]Ibid s 49(1)(a)(i).

    [8]Ibid s 48(1)(a).

  4. Without limiting the powers of the Tribunal to make orders under s 66(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA),…

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Finch v Grahle [2017] QCAT 80
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[2017] QCAT 80
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CaseChat Overview and Summary

The dispute between Desmond John Finch and Richard Grahle involved a tree situated on Mr Grahle's property that was encroaching onto Mr Finch's land. The tree's branches posed a significant risk of causing serious injury or damage to Mr Finch or his property. Despite reaching an agreement on the necessary works to mitigate this risk, a disagreement arose regarding the cost of those works. The matter was brought before the Environment, Resources and Development Court of New South Wales to resolve the financial dispute.

The court had to determine whether the agreement between the parties regarding the works to be undertaken was valid and if Mr Grahle was required to contribute to the cost of the tree works. The key issue was whether Mr Grahle was liable for the expenses incurred by Mr Finch in having the tree branches removed. This involved examining the terms of the agreement, the necessity of the works, and the responsibilities of each party under the relevant legislation.

The court found that the agreement between the parties was valid and that the works were necessary to prevent serious injury or damage. It ruled that Mr Grahle was liable for the cost of the tree works as agreed upon by the parties. The court ordered that Mr Grahle must pay Mr Finch the sum of $350 upon the completion of the tree works. The court's decision was based on the statutory provisions that require one party to contribute to the cost of works necessary to prevent harm caused by a tree situated on adjoining land.

Orders

Orders of the court

1. Richard Grahle must pay to Desmond John Finch the amount of $350.00 in respect of the cost of the tree works, upon the completion of the tree works.

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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