King v Samios - [2014] QCAT 165

CITATION:

King v Samios [2014] QCAT 165

PARTIES:	Richard James King and Kiria Joy King (Applicant)
v
Peter Samios (Respondent)

APPLICATION NUMBER:

NDR154-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Peter Samios, the registered owner of the lot at 146 Lexton Street, Stretton, Queensland, 4116 (“the Tree-Keeper”) will arrange to have the following works carried out on the trees the subject of the dispute (“the Initial Works”):

(a) Canopy reduction pruning to 7.0m in height of the entire group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper’s property;

(b) Lateral reduction pruning of the group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper’s property so that their canopies do not extend over the adjacent boundary fence line;

2. Maintenance pruning to be performed by the Tree-Keeper at intervals not exceeding one (1) year to maintain the canopy of the group of trees (Waterhousea floribunda, Melicope elleryanal) located on the eastern boundary of the Tree-Keeper’s property at their height and spread after the Initial Works (“the Subsequent Works”);

3. All tree debris to be removed from the properties after the recommended pruning is performed;

4. Climbing spurs / climbing gaffs / climbing irons shall not be used during the pruning works;

5. The Initial Works and the Subsequent Works must be completed:

(a) In accordance with Australian Standard 4373-2007 “Pruning of Amenity Trees”; and

(b) By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture;

6. Peter Samios is to apply for Brisbane City Council approval or exemption for the Initial Works and Subsequent Works within 14 days of this Order;

7. The Initial Works must be completed within 60 days of Brisbane City Council approval or exemption;

8. Peter Samios is to pay the costs of the Initial Works;

9. Richard King and Kiria King jointly pay to Peter Samios one half of the costs of the Subsequent Works as and when they fall due; and

10. Each party is to bear their own legal costs.

CATCHWORDS:

TREE DISPUTE – COSTS OF WORKS – where tree-keeper has responsibility to maintain trees – whether reasonable basis for application – where substantial, ongoing and unreasonable interference with sunlight only – where trees existed prior to renovations – where trees provide benefits – where trees subject to Protection Order – where applicant predominantly benefits from works – whether tree-keeper should pay costs of works – whether award of legal costs in interests of justice

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 41, 52, 66 and 73
Queensland Civil and Administrative Tribunal Act 2009 ss 100 and 102

Bunyard v McManus [2013] QCAT 258

Edmonds v Yeates & Anor [2013] QCAT 7
Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247
Paradise…

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 Samios

Details

AGLC: King v Samios [2014] QCAT 165
Case: [2014] QCAT 165
Decision Date

CaseChat Overview and Summary

In the case of King v Samios, the applicants, Richard James King and Kiria Joy King, sought an order for the respondent, Peter Samios, to bear the costs of pruning works on trees located on his property, which were causing interference with the applicants' property. The applicants alleged that the trees were dropping leaves and debris, obstructing their sky views, and shading their pool, solar panels, and a bedroom. The Tribunal was required to determine the responsibility for the costs of the pruning works, considering the obligations of the tree-keeper and the benefits and detriments of the trees.

The Tribunal held that it had jurisdiction to make orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. In exercising its discretion to determine who should pay the costs of the works, the Tribunal considered various factors, including the tree-keeper's responsibilities, the reasonableness of the application, the existence of the trees prior to renovations, the benefits of the trees, and who predominantly benefits from the works. The Tribunal found that the interference with sunlight was the only substantial, ongoing, and unreasonable interference caused by the trees. While the tree-keeper should bear the costs of the initial works, it would not be just or equitable to require him to pay all the costs of ongoing maintenance that predominantly benefits the neighbours. Therefore, the applicants should pay half the costs of the subsequent works.

In relation to legal costs, the Tribunal found that there was a strong indicator against awarding costs, and no circumstances pointed so compellingly to a costs award that it overcame this indicator. As a result, each party was ordered to bear their own legal costs.

The final orders encompassed the proposed agreement of 21 November 2013 and the Tribunal's determination on the costs of works and legal costs. The respondent was ordered to arrange for the initial works to be carried out on the trees, apply for Brisbane City Council approval or exemption, and pay the costs of the initial works. The applicants were ordered to jointly pay half of the costs of the subsequent works. Each party was to bear their own legal costs.

Orders