Kokkinos v Laing
[2015] QCAT 248
•25 June 2015
| CITATION: | Kokkinos v Laing [2015] QCAT 248 |
| PARTIES: | George Kokkinos and Helen Kokkinos (Applicant) |
| v | |
| Vincent James Laing and Rosina Maria Laing (Respondent) |
| APPLICATION NUMBER: | RWL003-15 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 1 June 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 25 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for stay of a decision is dismissed. 2. The application for strikeout/dismissal is dismissed. 3. The application for renewal is dismissed. |
| CATCHWORDS: | TREE DISPUTE – application to renew a final decision – where respondent compliant with previous order – where compliance with ongoing maintenance said not to be sufficient to ensure overall compliance with the order Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 133 and 134 |
APPEARANCES:
| APPLICANT: | Mr Kokkinos appeared by telephone |
| RESPONDENT: | There was no appearance for the respondents. |
REASONS FOR DECISION
Mr and Mrs Kokkinos are the neighbours of Mr and Mrs Laing and made application to the Tribunal under the Neighbourhood Disputes Resolution Act 2011 (Qld), as it was then known, in respect of trees on the Laing’s property, which they said were severely obstructing their ocean views.
The matter was eventually decided on appeal by Justice Wilson the then president of the Tribunal. Justice Wilson made the following orders to be carried out by Mr and Mrs Laing, the applicants in the appeal:
a) Reduce the height of the Applicant’s tallest Lilly Pilly to 3.8 m in height from ground level at the base of that tree.
b) From that tree’s height of 3.8 m, reduce the height of the remaining trees to 3.8 m by following a horizontal line across.
c) The work on the Lilly Pilly trees may be carried out by a person chosen by the Applicants.
d) The work on the avocado tree is to be carried out by an Australian Qualifications Framework, level 4 qualified and appropriately insured arborist.
e) The applicants are to maintain the row of trees to this height.
f) The work on the Lilly Pilly trees is to be carried out before 1 October 2013 and annually thereafter during late winter.
g) The work on the avocado tree is to be carried out by 1 October 2013 and annually thereafter at anytime other than late summer or early spring.
Mr and Mrs Kokkinos have made an application to renew the decision of Wilson J on the ground that they require clarification of the order. They say the tree level is currently well above 3.8 metres. The order states the trees are to be “maintained” at 3.8 m and also states that the trees are to be cut to 3.8 m once per year. They say that the current terms of the order are ambiguous and unworkable. They provided photos which they say show that the trees are closer to 5 metres in height. Mr Kokkinos states that he and his wife are based in Victoria and spend their winters at the property which has the benefit of the order.
Mr and Mrs Laing deny that the trees are more than 3.8 metres in height and say that they were pruned as required on 25 August 2014. They have also produced photos which they say show the trees at 3.8 metres high.
At the hearing Mr Kokkinos said that every time the trees are cut, they are cut to 3.8 metres and then they grow very fast and soon after the height is 5.3 metres. He wants the height to be maintained at 3.8 metres.
A party to a proceeding may apply for a renewal of a final decision if it is not possible for the tribunal’s final decision in a proceeding to be complied with or there are problems with interpreting, or enforcing the tribunal’s final decision in the proceeding[1]. Where a person applies for a renewal of a final decision the Tribunal may make the same final decision it made when the proceeding was originally decided or any other appropriate final decision that it could have made when the proceeding was originally decided[2].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 133.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 134.
The decision of the Appeal Tribunal in this case is clear and it would appear that Mr and Mrs Laing have complied with it to the extent of the initial reduction of height and then the annual prune to maintain the height at 3.8 metres. Mr and Mrs Kokkinos’s issue is that an annual prune is not sufficient to maintain the height of the trees at the height set out in the order.
The Kokkinos’s say that the order is ambiguous. The order is not ambiguous the mechanism that has been put in place to maintain the height of the trees by annual pruning is alleged to be insufficient to ensure that the height is maintained at 3.8 metres. The order is clear on its face, there is no difficulty implementing it. If necessary it could be enforced if the Laing’s did not prune the trees as stipulated in the order[3].
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 132.
Trees are living things and will continue to grow. The arborist who inspected the trees considered that annual pruning or pruning when required would be sufficient. The Tribunal ordered an annual prune. The fact that the trees may grow somewhat during the year before they are pruned is not a ground for renewal of the final decision. These matters go to whether the order was correct not to whether it can be performed or its clarity and so are not grounds for renewal of the order. The application for renewal will be dismissed.
An alternative application could have been made for a reopening of the proceeding under section 138 of the Act. That would have required a reopening ground, in this case, that the party would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen that was not reasonably available when the proceeding was heard and decided.
The growth characteristic of these trees are well known and evidence would have been readily available in that regard. There would not likely have been a reopening ground in this case if the alternative application had been made.
The Laing’s made application for a stay of the direction to hear this application and to strike out the application. As the Tribunal has determined to dismiss the primary application those applications are not necessary and will be dismissed.
The application for renewal is dismissed.
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