Holloway v Barker - [2018] QCAT 365

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Holloway v Barker [2018] QCAT 365

PARTIES:

GRAEME SELWYN HOLLOWAY
and
LYNETTE MARGARET HOLLOWAY
(applicants)

v

JENNIFER BARKER

(respondent)

APPLICATION NO/S:

NDR024-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 October 2018

HEARING DATE:

26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the Eucalyptus drepanophylla tree at her own cost;

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

3.   Jennifer Barker will arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost; and

4.   The removal of the Eucalyptus drepanophylla and the grinding and removal of its stump are to be carried out within 30 days of this Order.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether tree likely to cause serious injury or damage – where old large tree with split trunk and substantial overhang onto neighbours’ property – where tree-keeper responsible for proper care and maintenance of tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 65, s 66, s 71, s 72, s 73,
s 74, s 75

McDonald v Henry [2013] QCAT 87

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this Application about?

Jennifer Barker has a Eucalyptus drepanophylla (Queensland grey ironbark) tree on her property at 12 Lorien Avenue, Coolum Beach that is causing concerns for her neighbours. Specifically, they claim the tree is dangerous because it is damaged and likely to fall.
Does the Tribunal have jurisdiction?
Having considered section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), the Tribunal is satisfied that chapter 3 applies to the trees.
The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act 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.
Are the trees likely to cause serious injury or damage?
Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of ‘likely’ is probably or reasonably to be believed or expected. The neighbours relied upon a report from an environmental landscape consultant following an inspection on 20 August 2018.[1] Ms Barker did not commission any expert report in response. I therefore accept the consultant report and its recommendations.
[1]Arboricultural Assessment of Mark Bizzell dated 20 August 2018.
The consultant report relevantly states:
(a)The tree has a large split in the trunk reaching to the ground;
(b)On the day of inspection, the split was opening and…

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 Holloway v Barker

Details

AGLC: Holloway v Barker [2018] QCAT 365
Case: [2018] QCAT 365
Decision Date: 31 October 2018

CaseChat Overview and Summary

The matter before the court was a dispute between neighbours, specifically between the plaintiff, Mr Holloway, and the defendant, Ms Barker, concerning the removal of a large Eucalyptus drepanophylla tree on Ms Barker's property, which was causing concern for safety reasons due to its split trunk and substantial overhang onto Mr Holloway’s land. The court was asked to determine whether the tree was likely to cause serious injury or damage and to make orders for its removal. The dispute was heard and determined in the Land and Environment Court of Queensland.

The primary legal issue the court had to resolve was whether the tree was likely to cause serious injury or damage to the neighbouring property or persons. The court needed to consider the evidence presented by both parties regarding the condition of the tree and the potential risks it posed. The court also had to consider the responsibilities of the tree-keeper in maintaining the tree to prevent any harm. The evidence included expert testimony from an arborist who assessed the tree and provided recommendations for its removal.

In its decision, the court found that the tree was indeed likely to cause serious injury or damage due to its deteriorating condition. The court noted the expert evidence indicating the split trunk and overhang posed a significant risk. Given the tree-keeper's responsibility to ensure the tree was properly maintained, the court determined that Ms Barker, as the tree-keeper, had failed to adequately address the risks posed by the tree. Consequently, the court made orders for the removal of the tree and its stump by a qualified arborist, to be completed within 30 days of the order.

The final orders of the court required Ms Barker to arrange for the removal of the Eucalyptus drepanophylla tree at her own cost, ensuring that it was carried out by a suitably qualified and insured arborist. Additionally, the court ordered that the stump of the tree be ground and removed to prevent regrowth, also to be completed by Ms Barker within the specified timeframe. These orders were intended to mitigate the risks posed by the tree and ensure the safety of Mr Holloway’s property and any persons nearby.

Orders

Orders of the court

1. Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the Eucalyptus drepanophylla tree at her own cost;

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

3. Jennifer Barker will arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost; and

4. The removal of the Eucalyptus drepanophylla and the grinding and removal of its stump are to be carried out within 30 days of this Order.

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:	Holloway v Barker [2018] QCAT 365
PARTIES:	GRAEME SELWYN HOLLOWAY and LYNETTE MARGARET HOLLOWAY (applicants)
v
JENNIFER BARKER (respondent)
APPLICATION NO/S:	NDR024-18
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	31 October 2018
HEARING DATE:	26 October 2018
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the *Eucalyptus drepanophylla* tree at her own cost; 2. The removal of the *Eucalyptus drepanophylla* is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3; 3. Jennifer Barker will arrange for the grinding and removal of the stump of the *Eucalyptus drepanophylla* to prevent its regrowth, at her own cost; and 4. The removal of the *Eucalyptus drepanophylla* and the grinding and removal of its stump are to be carried out within 30 days of this Order.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether tree likely to cause serious injury or damage – where old large tree with split trunk and substantial overhang onto neighbours’ property – where tree-keeper responsible for proper care and maintenance of tree Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 65, s 66, s 71, s 72, s 73, s 74, s 75 McDonald v Henry [2013] QCAT 87
APPEARANCES & REPRESENTATION:
Applicants:	Self-represented
Respondent:	Self-represented