| CITATION: | Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 |
| PARTIES: | Vincent James Laing Rosina Maria Laing (Applicants/Appellants) |
| v | |
| George Kokkinos Helen Kokkinos (Respondents) |
| APPLICATION NUMBER: | APL425-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision of 20 November 2012 is set aside. 3. The Applicants arrange for the following works to be carried out: a) Reduce the height of the Applicants’ tallest Lilly Pilly tree 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 3 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 any time other than late summer or early spring. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREE – SEVERE OBSTRUCTION OF VIEW – where the Respondents commenced proceedings in the Tribunal for orders that the Applicants reduce the height of trees growing along a common boundary – where the Respondents submitted the trees formed a severe obstruction of a view – where the Tribunal held that there was a severe obstruction and ordered that the trees be reduced in height to 3 m – where the Applicants seek to appeal that decision – where the Applicants contend the Tribunal failed to correctly assess whether there was a severe obstruction – where the Applicants contend the orders were inappropriate – where the appeal ground raises a question of mixed law and fact – whether the Tribunal erred in the way in which it assessed a severe obstruction – whether the obstruction from the Respondents’ dwelling was severe Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 61, s 66(2)(b)(ii), s 66(3)(b)(ii), s 72, s 73, s 75 Calvisi v Brisbane City Council (2008) 1 PDQR 374, cited |
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- Case
- [2013] QCATA 247
- Decision Date
CaseChat Overview and Summary
The applicants contended that the Tribunal failed to correctly assess whether there was a severe obstruction of view. They argued that the Tribunal failed to properly consider the height of the trees and the impact of the obstruction on the respondents’ view. The applicants submitted that the Tribunal should have considered the height of the trees in relation to the height of the respondents’ dwelling and the distance between the trees and the dwelling. The applicants also argued that the orders were inappropriate because they did not take into account the impact of the reduction in height on the appearance of the property and the potential damage to the trees.
The court held that the appeal ground raised a question of mixed law and fact. The court found that the Tribunal had erred in the way in which it assessed whether there was a severe obstruction of view. The court held that the Tribunal had failed to properly consider the height of the trees and the impact of the obstruction on the respondents’ view. The court found that the obstruction from the respondents’ dwelling was severe and that the orders were appropriate. The court held that the applicants were required to reduce the height of the trees to three metres and that the work on the Lilly Pilly trees was to be carried out by a person chosen by the applicants, while the work on the avocado tree was to be carried out by an appropriately qualified and insured arborist.
The court granted leave to appeal and set aside the decision of the Tribunal. The court ordered that the applicants arrange for the trees to be reduced in height to three metres. The court ordered that the work on the Lilly Pilly trees was to be carried out by a person chosen by the applicants before 1 October 2013 and annually thereafter during late winter, while the work on the avocado tree was to be carried out by an appropriately qualified and insured arborist by 1 October 2013 and annually thereafter at any time other than late summer or early spring. The applicants were required to maintain the row of trees to this height.
Orders
Orders of the court
1. Leave to appeal is granted.
2. The decision of 20 November 2012 is set aside.
3. The Applicants arrange for the following works to be carried out:
a) Reduce the height of the Applicants’ tallest Lilly Pilly tree 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 3 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 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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