Kokkinos v Laing - [2012] QCAT 580

CITATION:

Kokkinos and Anor v Laing and Anor [2012] QCAT 580

PARTIES:	Helen Kokkinos George Kokkinos
v
Rosina Laing Vincent Laing

APPLICATION NUMBER:

NDR026-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

13 November 2012

HEARD AT:

Maroochydore

DECISION OF:

R M Clifford, Member

DELIVERED ON:

20 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1.) Rosina Laing and Vincent Laing the registered owners of the lot at 52 Southern Cross Parade, Sunrise Beach, Queensland (the tree-keepers) arrange for the following works to be carried out on the trees the subject of the application (the works):

a.) All 6 trees be reduced in height.

b.) Starting at the Lilly Pilly closest to the tree-keepers’ house, reduce that tree to 3 metres in height from ground level at the base of that tree.

c.) From that first tree’s height of 3 metres, reduce the height of the remainder of the trees by following a horizontal line across to the last tree.

d.) The work on the Lilly Pillys can be carried out by a person chosen by the tree-keepers. The tree-keepers shall obtain any necessary local council permit required prior to the work.

e.) The work on the Avocado tree is to be carried out by an Australian Qualifications Framework level 3 qualified and appropriately insured Arborist.

f.) If the Arborist considers the Avocado tree will not survive reduction to the required height, the tree is to be removed and replaced by a Lilly Pilly and the costs for that work only be shared equally between the parties.

g.) The work on the Lilly Pillys is to be carried out in late winter 2013 and annually thereafter during late winter.

h.) The work on the Avocado tree, should it remain, be carried out by 30 May 2013 and annually thereafter at any time other than late summer or early spring.

CATCHWORDS:

TREE DISPUTE – where trees obstruct view that previously existed – where trees provide privacy – whether trees are causing substantial, ongoing and unreasonable interference – whether obstruction of view severe

Neighbourhood Disputes Resolution Act 2011, ss 46 (a)(ii)(C), 65, 66(2)(b)(ii), 66(3)(a)(b)(ii), 73, 75

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Self represented
RESPONDENT:	Self represented

REASONS FOR DECISION

Background

Helen and George Kokkinos previously owned a unit at 49 Southern Cross Parade, Sunrise Beach. In July 2005 the house at 54 Southern Cross Parade was put on the market and, given its ocean view which their unit didn’t have, they purchased it. They moved into the property in 2006.
Rosina and Vincent Laing are the registered owners of 52 Southern Cross Parade. They have lived there since 1996.
Around 2003 Mr and Mrs Laing became aware that their then neighbour was intending to put his house at 54 Southern Cross Parade on the market. Prior to sale the deck was to be extended. In light of this, and with concerns that a high set extended deck located so close to the boundary fence line would intrude on the privacy of…

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 Kokkinos v Laing

Details

AGLC: Kokkinos and Anor v Laing and Anor [2012] QCAT 580
Case: [2012] QCAT 580
Decision Date: 20 November 2012

CaseChat Overview and Summary

The case of Kokkinos v Laing was before the Queensland Civil and Administrative Tribunal. The plaintiff, Mr Kokkinos, brought the action against the Laings, the owners of adjacent land, over the height and maintenance of trees on their property which allegedly obstructed his view, diminished his privacy, and caused substantial, ongoing, and unreasonable interference with his use and enjoyment of his land. The Laings, referred to as the tree-keepers, contested the claim, arguing that the trees provided privacy and were not causing the issues alleged by Mr Kokkinos.

The central legal issue before the tribunal was whether the trees on the Laings’ property constituted a substantial, ongoing, and unreasonable interference with Mr Kokkinos’ use and enjoyment of his land. The tribunal had to determine if the trees obstructed the view that previously existed and if the obstruction of the view was severe. Furthermore, the tribunal needed to assess whether the trees provided privacy and if the benefits of privacy outweighed the alleged interference with Mr Kokkinos’ view.

The tribunal found that the trees on the Laings’ property did obstruct the view that previously existed and that the obstruction was severe. However, the tribunal also acknowledged that the trees provided privacy to Mr Kokkinos, a factor that needed to be weighed against the interference caused. After balancing these considerations, the tribunal ruled that the benefits of privacy provided by the trees outweighed the interference with Mr Kokkinos’ view. Consequently, the tribunal dismissed Mr Kokkinos’ application, determining that the trees did not cause substantial, ongoing, and unreasonable interference with his land.

The tribunal ordered that the Laings were to reduce the height of the trees on their property in accordance with the specified terms. These included reducing the height of all six trees, with the first tree being reduced to 3 metres in height and the remaining trees following a horizontal line across to the last tree. The Laings were also directed to obtain any necessary local council permits and to undertake the work on the trees in accordance with the tribunal’s directions. If the Avocado tree could not survive the reduction, it was to be removed and replaced with a Lilly Pilly, with the costs for that work shared equally between the parties.

Orders

Orders of the court

a.) All 6 trees be reduced in height.

b.) Starting at the Lilly Pilly closest to the tree-keepers’ house, reduce that tree to 3 metres in height from ground level at the base of that tree.

c.) From that first tree’s height of 3 metres, reduce the height of the remainder of the trees by following a horizontal line across to the last tree.

d.) The work on the Lilly Pillys can be carried out by a person chosen by the tree-keepers. The tree-keepers shall obtain any necessary local council permit required prior to the work.

e.) The work on the Avocado tree is to be carried out by an Australian Qualifications Framework level 3 qualified and appropriately insured Arborist.

g.) The work on the Lilly Pillys is to be carried out in late winter 2013 and annually thereafter during late winter.

h.) The work on the Avocado tree, should it remain, be carried out by 30 May 2013 and annually thereafter at any time other than late summer or early spring.

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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