Finlay v Miller - [2021] QCAT 444

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Finlay v Miller [2021] QCAT 444

PARTIES:

CAROL CHRISTINE FINLAY

(applicant)

V

JULIE LORRAINE MILLER

(respondent)

APPLICATION NO/S:

NDR136-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

22 October 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for miscellaneous matters is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – application for interim orders – whether weeds pose biosecurity risk

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to make interim orders – whether trees pose biosecurity risk

Biosecurity Act 2014 (Qld)

Land Valuation Act 2010 (Qld), s 9, s 10, s 11
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42(1), s 42(2), s 42(3), s 42(4), s 45, s 46, s48(1), s 52, s 57, s 58, s 63, s 66, s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), 4(c),s 32(2), s 47, s 62(1), s 95, s 112

Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill v Beach Plaza Pty Ltd [2015] QCAT 230

Gosbell v Linehurst Pty Ltd [2015] QCAT 74

Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is the application about?

Dr Finlay owns a property that she says is impacted by several species of trees that overhang her property from Ms Miller’s property. She says the overhanging trees and falling fronds are an eye-sore and obstruct her view, and that her ongoing efforts to cut them back have caused injury including lower back pain from excessive bending and squatting. She also says the tree are noxious and invasive weeds.
By an application for a tree dispute filed 11 August 2021, Dr Finlay seeks orders that the trees be removed and/or their branches and roots pruned, and that Ms Miller pay her compensation of $5,000 towards funds she has spent on having contractors remove overhanging trees and as general compensation for medical and other impacts on Dr Finlay.
Dr Finlay attached to her application her medical records, photographs of the offending trees and a summary of the species of trees she has identified on her neighbour’s property.
On 17 September 2021, Dr Finlay filed an application for miscellaneous matters seeking orders that the trees be removed (essentially mirroring the orders sought in the initiating application) urgently to comply with:
(a)Ergon safety guidelines;
(b)the Biosecurity Act 2014 (Qld);
(c)Department of Agriculture and Fisheries requirements; and
(d)section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA”).
The expressed reasons for Dr Finlay seeking the interim orders are that under the Biosecurity Act owners with invasive plants under their control are required to…

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 Finlay v Miller

Details

AGLC: Finlay v Miller [2021] QCAT 444
Case: [2021] QCAT 444
Decision Date

CaseChat Overview and Summary

Dr. Carol Christine Finlay applied to the Queensland Civil and Administrative Tribunal for interim orders to remove trees from the property of her neighbour, Ms. Julie Lorraine Miller. Dr. Finlay alleged that the trees overhang her property, cause her injury, and pose a biosecurity risk. She sought orders for the removal of the trees, compensation, and for Ms. Miller to comply with biosecurity laws and Ergon safety guidelines. The application for interim orders was heard and dismissed on 22 October 2021.
The tribunal considered the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and the Biosecurity Act 2014 (Qld). The tribunal also considered the principles governing interim applications, including that the applicant must show a good arguable case and that the balance of convenience favours making the order. The tribunal noted that the application was made on the papers without oral evidence or expert reports. The tribunal found that Dr. Finlay had not established the necessary grounds for making interim orders, including that the trees are prohibited or restricted plants, pose an urgent biosecurity threat, or offend any local laws or Ergon guidelines.

The tribunal found that the application for interim orders should be dismissed. The tribunal held that the proper place to test Dr. Finlay's claims was at the final hearing, not through an interim application. The tribunal also noted that removing trees is an order of last resort and that there was no evidence to support any orders at the interim stage. The tribunal made an order dismissing the application for miscellaneous matters on 22 October 2021.

Orders