King v Corry - [2024] QCAT 184

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

King v Corry [2024] QCAT 184

PARTIES:

ANDREW MARTIN KING

(applicant)

v

KATRINA CORRY

(respondent)

APPLICATION NO/S:

NDR009-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

30 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

1. The applicant is to pay the respondent $500, within 28 days, being the costs incurred by the respondent in relation to the tree assessor’s report.

2. The Application is dismissed.

CATCHWORDS

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute ––whether the tree overhanging the boundary – whether the tree was likely to cause serious injury or damage – excessive leaf litter – whether trees causing a severe obstruction of sunlight on the neighbour’s property – ancient tree that was established before the houses were built – Where tree has historical value and provides benefits to the native fauna

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Belcher v Sullivan [2013] QCATA 304

Finch v Grahle [2017] QCAT 80

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The applicant and respondent are neighbours sharing a dividing fence between the two properties. The applicant lodged an application in this Tribunal on 19 January 2022 claiming that:
(a)The subject tree on the respondent’s property, a mango tree, is approximately 25 metres tall and about 18 metres in diameter and has overhanging branches which are more than 2.5 meters above the ground, and which extend into the applicant’s land more than 50cm from the common boundary.
(b)The subject tree on the respondent’s property has caused substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of their land due to:
(i) Excessive leaf litter which had been occurring for over 10 years since they bought the property in 2010, which required the applicant to clean their pool and surrounds daily to prevent staining of the pool surface and clean their gutters regularly.
(ii) Severe obstruction of sunlight meaning the applicant was unable to install solar panels.
(c)No damage or injury has been caused but it is likely within the next 12 months due to the tree’s extreme size and close proximity to the pool areas and house. The applicant considered it very probable if a cyclone were to cross land in Mackay the tree would cause serious damage to the applicant’s property.
(d)The tree is too big for suburbia and is causing the applicant to feel overwhelmed by its size and proximity to the applicant’s house and pool.
(e)The applicant attempted to resolve the dispute by over-the-fence discussion and letters and a previous tree was removed in March 2021.
The applicant sought the following orders:
(a)To remove the trees.
(b)An order the respondent pay the costs for carrying out these orders.

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 King v Corry

Details

AGLC: King v Corry [2024] QCAT 184
Case: [2024] QCAT 184
Decision Date: 30 April 2024

CaseChat Overview and Summary

In the matter of King v Corry, the applicant, King, sought to have a mango tree removed from the boundary line between their property and that of the respondent, Corry. The applicant claimed that the tree caused a severe obstruction of sunlight, excessive leaf litter, and a likelihood of causing serious injury or significant damage within the next twelve months. Corry argued that the tree, which predates both properties, holds historical value and provides benefits to the local ecosystem and fauna. The case was heard by the Queensland Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether the applicant could establish a sufficient basis for the removal of the mango tree under the applicable legislation. Specifically, the tribunal had to consider whether the tree caused an unreasonable interference with the applicant's use and enjoyment of their property, or whether it was likely to cause serious injury or significant damage within the next twelve months. Additionally, the tribunal needed to weigh the historical and ecological value of the tree against the applicant's claims.

The tribunal found that there was insufficient evidence to support the applicant's claims of unreasonable interference, severe obstruction, or the likelihood of serious injury or significant damage within the next twelve months. The mango tree did not overhang the boundary fence, and no evidence was presented to substantiate the applicant's claims. Consequently, the tribunal determined that there was no jurisdiction to interfere with the tree or make any orders. The tribunal also noted that the tree's historical and ecological value, as well as its contribution to the local ecosystem, would be significant considerations in the event of any future disputes.

The tribunal dismissed the application and ordered that the applicant was to pay the respondent $500 within 28 days, representing the costs incurred by the respondent in relation to the tree assessor's report. This decision was based on the tribunal's assessment that the applicant's complaint was against a well-established large tree existing prior to the applicant purchasing the property, and the applicant had been unable to establish any valid claims against the tree.

Orders

Orders of the court

1. The applicant is to pay the respondent $500, within 28 days, being the costs incurred by the respondent in relation to the tree assessor’s report.

2. The Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, there is no evidence to support any finding that the mango tree is likely to cause serious injury or significant damage within the next 12 months.Decision Based on the lack of evidence to support the applicant's claim that there is a severe obstruction or that excessive leaf litter is causing an unreasonable interference, either now or in the next 12 months or that there, I am unable to find that the applicant’s land is affected by the subject tree due to substantial, ongoing and unreasonable inference with the applicant’s use and enjoyment of their land.[28] [28]The Act, s 46. As the tree does not overhang the boundary fence and there is no unreasonable interference with the applicant’s use of their property or the likelihood of severe damage or serious injury in the next 12 months there is no jurisdiction to interfere with this tree or make any orders and accordingly, I refuse to make any orders requested by the applicant. As there is no jurisdiction to make an order about the tree, there is no need for the Tribunal to fully consider and make findings in relation to the s 73 factors. However, the tree’s historical and social value, the contribution to the local ecosystem and the amenity of the land would be a significant consideration if any future issues arise. As this is one of the last remaining trees from the original orchard, the tree has historical value and provides benefits to both native fauna and amenity and aesthetic benefits to the immediate area. The applicant and respondent both incurred costs of $500 in contributing to the tree assessor’s report in this matter, as ordered on 9 August 2022. The starting point for costs is that each party must bear their own costs,[29] however the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[30] [29]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.[30]Ibid, s 102. The Tree Disputes Practice Direction 7 of 2013 directs that the payment of the assessor’s costs may be adjusted, as between the parties, by any final order made by the Tribunal in the proceedings. In the circumstances of this matter, I am satisfied that the interest of justice warrants the adjustment of the tree assessor’s costs. The factors which contribute to this are that the applicant’s complaint is against a tree which was a well-established large tree existing prior to the applicant purchasing the property; and the applicant has been unable to establish that the tree overhangs the property; he does not allege any damage or injury has been caused and has been unable to evidence the tree causes any interference or will cause any interference, damage or injury within the next 12 months. Accordingly, the application was without merit. Therefore, I determine the applicant should cover the full cost of the tree assessor’s report and as such I order the applicant is to pay the respondent $500 within 28 days, being the costs already paid by the respondent in relation to the tree assessor’s report.

Ratio Decidendi

Legal Principle Established

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