Hewitt v Brisbane City Council

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hewitt & Anor v Brisbane City Council & Anor [2018] QCAT 282

PARTIES:

DENNIS RICHARD HEWITT
and
YVONNE FRANCIS HEWITT
(applicants)

v

BRISBANE CITY COUNCIL
and
LORRAINE GORMAN

(respondents)

APPLICATION NO/S:

NDR018-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

21 August 2018

HEARING DATE:

16 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees likely to cause within the next 12 months serious injury or damage to land or property – where claims of falling risk, allergy risk, cracking and damage to pool pump - where no independent expert evidence of risks – where no evidence of ‘serious damage’ – where no steps taken by neighbour to prevent or minimise risk – whether substantial, ongoing and unreasonable interference – where trees predate neighbours’ purchase of their property – where dropping of foliage part of natural incidence of living in suburban landscape that includes trees

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 65, s 66, s 71, s 73, s 75

Cacopardo & Anor v Woolcock & Anor [2017] QCAT 214
Edmonds v Yeates [2013] QCAT 7

Graham & Ors v Welch [2012] QCA 282

McDonald v Henry [2013] QCAT 87
McHugh v Withers [2017] QCAT 346
Thomsen v White [2012] QCAT 381

Wallace v Keg [2012] QCAT 466

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondents:

Brisbane City Council: WR Manners, Principal Officer Natural Environment for the Brisbane City Council

L Gorman: L Reynolds, Personal Assistant

REASONS FOR DECISION

What is this Application about?

1. Dennis and Lorraine Hewitt claim that their neighbour’s two silky oak trees should be removed because:

   (a)The trees present a safety concern because of their susceptibility to breakage in high winds, cyclones, lightning strike and possible decay;

   (b)The trees could cause structural damage to their pool; and

   (c)Debris from the trees drop into their pool and block their pool cleaner.

2. The trees are protected by the Brisbane City Council’s Natural Assets Local Law 2003 under protection category ‘Significant Urban Vegetation’ and meet the objects of that law by contributing to the landscape character of the city and providing a prominent landscape feature in the local area.[1]

   [1]Statement of William Robert Manners, Principal Officer Natural Environment, dated 22 June 2018, [4].

   Does the Tribunal have jurisdiction?

3. The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.

4. As a precondition to the Tribunal’s jurisdiction, Mr and Mrs Hewitt endeavoured to resolve the matter, before applying to the Tribunal.[2]

   Are the trees likely to cause within the next 12 months serious injury or damage to Mr and…