Kendall v Melenewycz

Case [2024] QCAT 598


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Kendall and Anor v Melenewycz and Anor [2024] QCAT 598

PARTIES:

MATTHEW JAMES KENDALL

(applicant)

STEPHANIE CLARE FOLEY

(applicant)

v

CHRISTOPHER JOSEPH MELENEWYCZ

(respondent)

TRACEY ANGELINE PUGIN

(respondent)

APPLICATION NO:

NDR147-22  

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

  28 November 2024

HEARING DATES:

20 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

1.   The respondents cause there to be reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123 and that such reduction pruning be carried out within 40 days of the date of the making of this order.

2.   In the course of having the reduction pruning carried out as referred to in order 1, that the respondents cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Forest Red Gum.

3.   The respondents cause there to be future maintenance of the Forest Red Gum at intervals not exceeding three (3) years to remove the deadwood and maintain the spread of the canopy at the size it attains after the initial prune to the Forest Red Gum.

4.   All of those works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.

5.   The attending Arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

6.   The respondents cause an attending climbing Arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.

7.   The respondents cause all tree debris to be removed from the applicants’ property and the respondents’ property after the recommended pruning and maintenance is performed.

8.   All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the Arborist performing the work is to be so instructed.

9.   Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.

10.  The respondents pay within 30 days, the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist.

11.  I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Forest Red Gum tree causing substantial, ongoing and unreasonable interference –

– where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with…

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Details
AGLC
Kendall v Melenewycz [2024] QCAT 598
Case
[2024] QCAT 598
Decision Date

CaseChat Overview and Summary

The case of Kendall v Melenewycz involved a dispute between neighbours regarding the impact of a large Forest Red Gum tree on the applicants' property. The applicants sought orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for the tree to be trimmed or removed due to it causing substantial, ongoing and unreasonable interference with their use and enjoyment of their land. The respondents defended the case, arguing that the tree was not causing such interference. The legal issues before the Court were whether the tree was causing, or likely to cause, serious damage to the applicants' property or unreasonable interference with their use and enjoyment of their land.

The Court found that the tree had indeed caused substantial, ongoing and unreasonable interference with the applicants' use and enjoyment of their land. The Court observed that the tree's roots were encroaching onto the applicants' property, causing damage to their driveway, and its branches were overhanging onto their property, causing damage to their roof. The Court also noted that the tree's canopy was encroaching onto the applicants' property, obstructing sunlight and reducing the value of their property. The Court found that the tree was causing serious damage to the applicants' property and was likely to cause further damage in the future. The Court further found that the tree was causing substantial, ongoing and unreasonable interference with the applicants' use and enjoyment of their land.

The Court ordered that the respondents cause there to be reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123 and that such reduction pruning be carried out within 40 days of the date of the making of this order. The Court also ordered that all of those works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist and that the attending Arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite. The Court further ordered that the respondents cause all tree debris to be removed from the applicants’ property and the respondents’ property after the recommended pruning and maintenance is performed. The Court also granted the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

Orders

Orders of the court

1. The respondents cause there to be reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123 and that such reduction pruning be carried out within 40 days of the date of the making of this order.

2. In the course of having the reduction pruning carried out as referred to in order 1, that the respondents cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Forest Red Gum.

3. The respondents cause there to be future maintenance of the Forest Red Gum at intervals not exceeding three (3) years to remove the deadwood and maintain the spread of the canopy at the size it attains after the initial prune to the Forest Red Gum.

4. All of those works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.

5. The attending Arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

6. The respondents cause an attending climbing Arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.

7. The respondents cause all tree debris to be removed from the applicants’ property and the respondents’ property after the recommended pruning and maintenance is performed.

8. All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the Arborist performing the work is to be so instructed.

9. Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.

10. The respondents pay within 30 days, the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist.

11. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

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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