Hannah v Baumann - [2013] QCAT 467

CITATION:

Hannah & Ors v Baumann [2013] QCAT 467

PARTIES:	Dennis Robert Hannah Katarzyna Kazmierczak Mariusz Pecak (Applicants)
V
Martin Baumann (Respondents)

APPLICATION NUMBER:

NDR094-12

MATTER TYPE:

Neighbourhood Dispute matter

HEARING DATE:

18 July 2013

HEARD AT:

Brisbane

DECISION OF:

W LeMass, Adjudicator

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. With respect to the issue of damage to the wall and serious damage likely to be caused to the wall I order that all trees, shrubs, palms, vines and bamboo be removed within an area defined on one side by the face of the wall and on the other a line being 4 meters away from the wall as measured at 90 degrees to the wall and for the length of the respondents boundary with the applicants and as approximately indicated by line 1 on the attached sketches 1 & 2. Such area to be maintained free of vegetation other than grass in the future.

2. With respect to the interference with the use and enjoyment of the Applicant Hannah’s land, I order that the clump of Bamboo indicated at number 8 on the attached sketch 1 be removed and that no further planting take place of a species which would exceed the height of the fences at the rear of 36 and 38 Dargie Street, Everton Park.

3. The works stated in the above 2 paragraphs must be carried out within 60 days of the date of this decision.

CATCHWORDS:

Trees – views – Ghost Bamboo (Dendrocalumus Minor ”Amoenus”) and Alexander Palms (Archontophenix Alexandrae)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48, 46, 66(2)

Thomsen v white [2012] QCAT 381

APPEARANCES and REPRESENTATION (if any):

APPLICANTS:	Dennis Robert Hannah Katarzyna Kazmierczak Mariusz Pecak
RESPONDENT:	No appearance

REASONS FOR DECISION

This matter is a dispute between three adjoining neighbours, concerning many mixed variety trees situated on the Respondents, Mr Baumann’s land.
The two applicants, the owners of 36 and 38 Dargie Street, Everton Park have their rear boundaries adjoining Mr Baumann’s property at 12 Eldershaw Street, Everton Park.
At this approximate boundary exists a substantial concrete block retaining wall, estimated by the parties to be in parts 3 to 4 meters tall and some 50 meters long.
One of the applicants, Mr Hannah, a resident of over 30 years suggests that the wall was created by predecessors in title to the lower neighbours when the land was excavated for that subdivision to provide support to the existing higher neighbours.
A rolling dispute has existed for some years concerning the trees on Mr Baumann’s land. The trees are described as:
“The trees assessed are Ghost Bamboo (Dendrocalumus Minor ”Amoenus”) and Alexander Palms (Archontophenix Alexandrae): The trees have good vitality and show no structural defects. The trees have an average height of 10 to 12 meters (Alexander palms have a potential mature height of 40 meters”.[1]
[1] Tree Assessment Report 26/8/12 David Gunter at para 3.
Discussions have resulted in…

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 Hannah v Baumann

Details

AGLC: Hannah v Baumann [2013] QCAT 467
Case: [2013] QCAT 467
Decision Date

CaseChat Overview and Summary

The case of Hannah and Others v Baumann involves a dispute between three adjoining neighbours in Brisbane, Australia. The applicants, Dennis Robert Hannah, Katarzyna Kazmierczak, and Mariusz Pecak, own properties at 36 and 38 Dargie Street, Everton Park, which share a boundary with the respondent, Martin Baumann, at 12 Eldershaw Street, Everton Park. The dispute centres on a substantial retaining wall adjacent to the boundary, which the applicants claim is at risk due to the trees and vegetation on Mr Baumann's land. The applicants also argue that their views of the surrounding hills and suburbs are being obstructed by the trees on the respondent's property. The matter was heard by W LeMass, Adjudicator, on 18 July 2013, and the decision was delivered on 6 September 2013.

The key legal issues the court had to decide involved whether the trees on Mr Baumann's property were causing or likely to cause serious damage to the retaining wall and substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their land. Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, the court could make orders to remedy, restrain, or prevent such damage or interference. The applicants argued that the trees were causing or likely to cause serious damage to the wall and obstructing their views, while Mr Baumann argued that the loss of view was only marginally worse and that the applicants should tolerate the leaf litter.

The court found that the evidence of the applicants, supported by the arborist's and engineer's reports, demonstrated that the trees were causing or likely to cause serious damage to the retaining wall. The court also found that the trees were causing substantial, ongoing, and unreasonable interference with Mr Hannah's use and enjoyment of his land, as they obstructed his view of the surrounding hills. The court ordered that all trees, shrubs, palms, vines, and bamboo be removed within a specified area adjacent to the wall and that a clump of bamboo be removed from another site. The court further ordered that no further planting take place of a species that would exceed the height of the fences at the rear of 36 and 38 Dargie Street, Everton Park. The works were to be carried out within 60 days of the decision.

In summary, the court held that the trees on Mr Baumann's property were causing or likely to cause serious damage to the retaining wall and substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their land. The court made orders to remove the trees and restrict future planting to prevent further damage and interference.

Orders