Jarrett v Bliss - [2024] QCAT 234

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jarrett v Bliss [2024] QCAT 234

PARTIES:

NOEL MARTIN JARRETT

(applicant)

SUSAN MAREE JARRETT

(applicant)

v

DAVID JOHN BLISS

(respondent)

DEBRA JANE BLISS

(respondent)

APPLICATION NO/S:

NDR059-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 May 2024

HEARING DATE:

25 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Bishop

ORDERS:

1.     The Respondents must prune or remove all trees, including trees in pots, contained in the designated area of the Respondents’ front yard (‘the Designated Area’) so that no tree contained in the Designated Area is taller than 2.50 metres, on or before 4:00pm on 2 August 2024.

2.     The Respondents must undertake ongoing maintenance during the months of January, April, July and October of every year, if required, in the Designated Area so that no tree contained in the Designated Area is taller than 2.50 metres. The initial maintenance will occur, if required, in October 2024.

3.     The Designated Area is bordered by the parties’ shared side boundary from the Respondents’ front boundary to the edge of the Respondents’ house (currently most of the Hedge) and the Respondents’ front boundary (currently where the Palms are located) and the Respondents’ shared side boundary with the house located on the Esplanade from the Respondents’ front boundary to the first post in the Respondents’ side fence (this part of the Respondents’ fence increases in height to meet the post and the post is in line with the side of the Esplanade’s house.)

4.     The Respondents must maintain the clearance channel between the Respondents’ trees and the parties’ shared side boundary fence (except the Pink Euodia, Pink Trumpet, Native Frangipani and Mock Orange Hedge), if required, three times a year in the months of January, May and September. The initial maintenance will occur in September 2024.

5.     The Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet, Native Frangipani (identified as T1, T2 and T3 in Damian Green’s report dated 10 November 2023) and provide maintenance recommendations (the ‘Initial Maintenance Work’) in writing, on or before 4:00pm on 2 August 2024.

6.     Upon completion of the Initial Level 5 Assessment outlined in Order 5, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the Initial Maintenance Work, on or before 4:00pm on 1 November 2024.

7.     Unless there is a significant weather event and Order 8 is enlivened, twelve (12) months after the Initial Level 5 Assessment outlined in Order 5, and on an annual basis thereafter (to be completed in the same month of each year) (the ‘Yearly Level 5 Assessment’), the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet and Native Frangipanni and provide written yearly maintenance recommendations (‘Yearly Maintenance Work’).

8.     If…

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 Jarrett v Bliss

Details

AGLC: Jarrett v Bliss [2024] QCAT 234
Case: [2024] QCAT 234
Decision Date: 31 May 2024

CaseChat Overview and Summary

In the case of Jarrett v Bliss, the applicants, Noel Martin Jarrett and Susan Maree Jarrett, sought relief from the Supreme Court of New South Wales due to disputes with their neighbour, the respondents, regarding the trees on the respondents' property. The applicants argued that the trees on the respondents' land were causing serious injury, damage, and interference to their land and enjoyment. The court was required to determine whether the trees indeed caused or would cause such harm, and if so, what measures should be taken.

The court examined the evidence presented and concluded that the trees did cause or would cause serious injury, damage, and unreasonable interference with the applicants' use and enjoyment of their land. The court considered factors such as excessive leaf litter, overhanging vegetation, and obstructions to sunlight and ventilation. The court then issued detailed orders to address these issues, requiring the respondents to prune or remove certain trees, maintain the designated area, and engage qualified arborists for assessments and maintenance work. The orders also included provisions for ongoing maintenance, access to the applicants' land for work, and consequences for failure to comply.

The court's orders mandated that the respondents prune or remove trees in the designated area to ensure none exceeded 2.50 metres in height, and to maintain the area and clearance channel as specified. Additionally, the respondents were required to engage arborists to assess and provide recommendations for the Pink Euodia, Pink Trumpet, and Native Frangipani, with specific qualifications and timelines outlined for these assessments and the subsequent maintenance work. The applicants were granted the right to undertake any incomplete work if the respondents failed to comply, with provisions for notice and cost recovery.

These orders reflect the court's determination to balance the interests of both parties, ensuring that the applicants' rights and enjoyment of their land are protected while also considering the respondents' responsibilities regarding their trees.

Orders

Orders of the court

1. The Respondents must prune or remove all trees, including trees in pots, contained in the designated area of the Respondents’ front yard (‘the Designated Area’) so that no tree contained in the Designated Area is taller than 2.50 metres, on or before 4:00pm on 2 August 2024.

2. The Respondents must undertake ongoing maintenance during the months of January, April, July and October of every year, if required, in the Designated Area so that no tree contained in the Designated Area is taller than 2.50 metres. The initial maintenance will occur, if required, in October 2024.

3. The Designated Area is bordered by the parties’ shared side boundary from the Respondents’ front boundary to the edge of the Respondents’ house (currently most of the Hedge) and the Respondents’ front boundary (currently where the Palms are located) and the Respondents’ shared side boundary with the house located on the Esplanade from the Respondents’ front boundary to the first post in the Respondents’ side fence (this part of the Respondents’ fence increases in height to meet the post and the post is in line with the side of the Esplanade’s house.)

4. The Respondents must maintain the clearance channel between the Respondents’ trees and the parties’ shared side boundary fence (except the Pink Euodia, Pink Trumpet, Native Frangipani and Mock Orange Hedge), if required, three times a year in the months of January, May and September. The initial maintenance will occur in September 2024.

5. The Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet, Native Frangipani (identified as T1, T2 and T3 in Damian Green’s report dated 10 November 2023) and provide maintenance recommendations (the ‘Initial Maintenance Work’) in writing, on or before 4:00pm on 2 August 2024.

6. Upon completion of the Initial Level 5 Assessment outlined in Order 5, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the Initial Maintenance Work, on or before 4:00pm on 1 November 2024.

7. Unless there is a significant weather event and Order 8 is enlivened, twelve (12) months after the Initial Level 5 Assessment outlined in Order 5, and on an annual basis thereafter (to be completed in the same month of each year) (the ‘Yearly Level 5 Assessment’), the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet and Native Frangipanni and provide written yearly maintenance recommendations (‘Yearly Maintenance Work’).

8. If within twelve (12) months after the Initial Level 5 Assessment outlined in Order 5 the Pink Euodia, Pink Trumpet and Native Frangipanni are subjected to a significant weather event, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 5 in arboriculture with appropriate insurances to assess the Pink Euodia, Pink Trumpet and Native Frangipanni within two (2) months of that significant weather event (‘Level 5 Severe Weather Assessment’) and on an annual basis thereafter (to be completed in the same month of each year) (the ‘Yearly Level 5 Assessment’), and provide written weather event maintenance recommendations (‘Severe Weather Maintenance Work’).

9. Upon completion of the Yearly Level 5 Assessment outlined in Order 7 or Level 5 Severe Weather Assessment outlined in Order 8, the Respondents must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the Yearly Maintenance Work or the Severe Weather Maintenance Work within two (2) months of receiving those assessments.

10. Upon completion of the Initial Level 5 Assessment, the Yearly Level 5 Assessment or the Severe Weather Assessment the Respondents must give the Applicants, Noel Martin Jarrett and Susan Maree Jarrett, a copy of the Initial Maintenance work, the Yearly Maintenance Work or the Severe Weather Maintenance Work within seven (7) days of the Respondents’ receiving them.

11. Prior to the Respondent’s elected level 3 arborist undertaking the Initial Maintenance Work, the Yearly Maintenance Work and/or the Severe Weather Maintenance Work outlined in Order 6 and Order 9, the Respondents must provide their elected level 3 arborist a copy of the Initial Maintenance Work, the Yearly Maintenance Work and/or the Severe Weather Maintenance Work to be undertaken.

12. The Respondents’ elected arborist (with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances) must perform all pruning in accordance with AS4373-2007 Pruning of Amenity Trees.

13. The Respondents will be responsible for all costs associated with Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8 and Order 9.

14. If required the Applicants must allow the Respondents’ elected arborist and/or elected contractor with appropriate insurances access to their land to undertake the work outlined in Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8 and/or Order 9 subject to three (3) days’ notice or as agreed between the parties.

15. If the Respondents fail to undertake any of the work outlined in Order 1, Order 2, Order 4, Order 5, Order 6, Order 7, Order 8, Order 9 and/or Order 10 (‘Incomplete Work’) the Applicants shall be entitled to undertake any of the Incomplete Work in accordance with these Orders. The Applicants’ elected contractor and/or arborist shall be entitled to enter the Respondents’ land and carry out any of the Incomplete Work subject to the Applicants giving 14 days written notice of that intention to the Respondents.

16. If the Respondents undertake all of the outstanding Incomplete Work prior to the 14 days written notice period expiring as outlined in Order 15, the Applicants’ entitlement to enter the Respondents’ land is extinguished.

17. The costs incurred by the Applicants engaging a contractor and/or arborist to undertake any of the Incomplete Work in default of the Respondents shall be recoverable from the Respondents as a debt without further notice being required to be given.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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