Heywood v Brogan - [2020] QCAT 308

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Heywood & Anor v Brogan & Anor [2020] QCAT 308

PARTIES: WENDY HEYWOOD
JOHANNES JACOBUS VENTER

(applicants)

v

WAYNE WALTER BROGAN
ANNABEL MARY BRITTAIN

(respondent)

APPLICATION NO/S:

NDR056-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 August 2020

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gaffney

ORDERS:
1.   The Respondents shall cause the tree, known as terminalia catappa and which is the subject of the Application, including its stump (together, ‘the tree’), to be removed from the Respondents’ land within 90 days of the date of this Order.

2.   The Respondents are to pay the costs of removing the tree.

3.   The removal is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

4.   The Applicants shall, following 7 days’ prior written notice from the Respondents, provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as may be reasonably required to allow the Respondents to obtain quotations for the removal of the tree.

5.   The Applicants shall, following 28 days' prior written notice from the Respondents (‘the removal notice’) provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as is reasonably necessary for the removal of the tree.

6.   If there is no other reasonably available means of access for removing the tree, such access is to be facilitated by the temporary removal and reinstatement of the rear boundary fence at the common boundary of the Applicants’ land and the Respondents’ land (‘the fence’) to the extent necessary for removing the tree, and, if that is the case:

(a)    the Respondents shall advise the Applicants in writing of this in the removal notice; and

(b)   the Applicants shall, within 21 days after receiving the removal notice, cause the fence to be temporarily removed (to the extent necessary) and then reinstated as soon as practicable after the tree is removed, and the Respondents shall permit such removal and reinstatement; and

(c)    the cost of such removal and reinstatement is to be borne by the Applicants.

7.   The Respondents shall plant a low growing tree appropriate to the environment in place of the tree at their cost.

8.   The notices referred to in these Orders are to be sent by email to the email addresses provided in Part A at page 1 and Part A at page 2 of the Form 51 Application for a tree dispute - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether terminalia catappa posed a risk of serious injury, a risk of serious damage to land or property or of substantial ongoing and unreasonable interference with the use and enjoyment of land – impact of tree litter falling on neighbours’ land – risk 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 Heywood v Brogan

Details

AGLC: Heywood v Brogan [2020] QCAT 308
Case: [2020] QCAT 308
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the case of Heywood v Brogan, the applicants sought an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 for the removal of a terminalia catappa tree located on the respondents' property, due to concerns about the potential risk it posed to their property and their enjoyment of their land. The applicants alleged that the tree had caused damage to their property, including their driveway and garden, and that the tree's litter and risk of failure presented a significant threat. The respondents disputed the claims, arguing that the tree was healthy and did not pose any risk.

The primary legal issue before the court was whether the tree constituted a risk of serious injury, serious damage to land or property, or substantial ongoing and unreasonable interference with the use and enjoyment of land, as defined in the Act. The court considered evidence from arborists and other experts, as well as the parties' submissions, to determine whether the tree posed a risk and, if so, what action should be taken.

The court found that the tree did pose a risk of serious injury, serious damage to land or property, and substantial ongoing and unreasonable interference with the use and enjoyment of land, based on the evidence presented. The court noted that the tree's location and size, as well as the damage it had already caused, supported this conclusion. The court further found that the respondents should bear the costs of removing the tree, as they were the tree-keepers and had the primary responsibility for ensuring that the tree did not pose a risk. The court also ordered that the tree be removed by a qualified and insured arborist and that the respondents plant a low-growing tree in its place.

In summary, the court granted the applicants' application for the removal of the terminalia catappa tree, finding that it posed a risk to their property and enjoyment of their land. The respondents were ordered to remove the tree and plant a replacement, and to bear the costs of removal. The applicants were also granted access to their property to facilitate the removal process.

Orders

Orders of the court

1. The Respondents shall cause the tree, known as terminalia catappa and which is the subject of the Application, including its stump (together, ‘the tree’), to be removed from the Respondents’ land within 90 days of the date of this Order.

2. The Respondents are to pay the costs of removing the tree.

3. The removal is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

4. The Applicants shall, following 7 days’ prior written notice from the Respondents, provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as may be reasonably required to allow the Respondents to obtain quotations for the removal of the tree.

5. The Applicants shall, following 28 days' prior written notice from the Respondents (‘the removal notice’) provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as is reasonably necessary for the removal of the tree.

6. If there is no other reasonably available means of access for removing the tree, such access is to be facilitated by the temporary removal and reinstatement of the rear boundary fence at the common boundary of the Applicants’ land and the Respondents’ land (‘the fence’) to the extent necessary for removing the tree, and, if that is the case:

(a) the Respondents shall advise the Applicants in writing of this in the removal notice; and

(b) the Applicants shall, within 21 days after receiving the removal notice, cause the fence to be temporarily removed (to the extent necessary) and then reinstated as soon as practicable after the tree is removed, and the Respondents shall permit such removal and reinstatement; and

7. The Respondents shall plant a low growing tree appropriate to the environment in place of the tree at their cost.

8. The notices referred to in these Orders are to be sent by email to the email addresses provided in Part A at page 1 and Part A at page 2 of the Form 51 Application for a tree dispute - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*Heywood & Anor v Brogan & Anor* [2020] QCAT 308
PARTIES:	WENDY HEYWOOD JOHANNES JACOBUS VENTER
(applicants)
v
WAYNE WALTER BROGAN ANNABEL MARY BRITTAIN
(respondent)
APPLICATION NO/S:	NDR056-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	10 August 2020
HEARD AT:	Brisbane
DECISION OF:	Adjudicator Gaffney
ORDERS:	1. The Respondents shall cause the tree, known as *terminalia catappa* and which is the subject of the Application, including its stump (together, ‘the tree’), to be removed from the Respondents’ land within 90 days of the date of this Order. 2. The Respondents are to pay the costs of removing the tree. 3. The removal is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. 4. The Applicants shall, following 7 days’ prior written notice from the Respondents, provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as may be reasonably required to allow the Respondents to obtain quotations for the removal of the tree. 5. The Applicants shall, following 28 days' prior written notice from the Respondents (‘the removal notice’) provide the Respondents or their agents with such access to the Applicants' land (other than a dwelling on the land), at reasonable times, as is reasonably necessary for the removal of the tree. 6. If there is no other reasonably available means of access for removing the tree, such access is to be facilitated by the temporary removal and reinstatement of the rear boundary fence at the common boundary of the Applicants’ land and the Respondents’ land (‘the fence’) to the extent necessary for removing the tree, and, if that is the case: (a) the Respondents shall advise the Applicants in writing of this in the removal notice; and (b) the Applicants shall, within 21 days after receiving the removal notice, cause the fence to be temporarily removed (to the extent necessary) and then reinstated as soon as practicable after the tree is removed, and the Respondents shall permit such removal and reinstatement; and (c) the cost of such removal and reinstatement is to be borne by the Applicants. 7. The Respondents shall plant a low growing tree appropriate to the environment in place of the tree at their cost. 8. The notices referred to in these Orders are to be sent by email to the email addresses provided in Part A at page 1 and Part A at page 2 of the Form 51 *Application for a tree dispute - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011*.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether terminalia catappa posed a risk of serious injury, a risk of serious damage to land or property or of substantial ongoing and unreasonable interference with the use and enjoyment of land – impact of tree litter falling on neighbours’ land – risk of…