Lake v Isaac - [2023] QCAT 456

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lake v Isaac [2023] QCAT 456

PARTIES:

SLAVICA LAKE

(applicant)

v

AI PI ISAAC

(respondent)

APPLICATION NO/S:

NDR131-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

22 November 2023

HEARING DATE:

17 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     The respondent tree keeper Ai Pi Isaac shall prune the Cocos Palms and such other trees on her land at 24-26 Greygum Court, Ningi that extend branches or fronds over the common boundary with the neighbouring land belonging to Slavica Lake as follows.

2.     The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of Ai Pi Isaac.

3.     The work shall be done once in the period January to March 2024 inclusive, and thereafter annually in the period January to March.

4.     Should the work not be done by end March 2024 Slavica Lake shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.

5.     Should Slavica Lake be required to carry out the work in default of it being done by Ai Pi Isaac, a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by Slavica Lake shall be entitled to enter Ai Pi Isaac’s land to carry out the work, subject to Slavica Lake giving 14 days written notice of that intention to Ai Pi Isaac at her last known address.

6.     The costs incurred by Slavica Lake engaging a tree lopper and arborist to do the work in default of Ai Pi Isaac shall be recoverable from Ai Pi Isaac as a debt without further notice being required to be given.

7.     Ai Pi Isaac and any tree lopper or arborist engaged by her to perform the work shall be entitled to enter the applicant’s land for that purpose subject to 48 hours written notice being given of the work to be done.

8.     A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework (AQF) Level 3 in arboriculture.

9.     This order shall remain in force and effect for a period of ten years.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a neighbour complained that the tree keeper’s trees affected the neighbour’s land by shading areas of the property – where arborist experts prepared a joint experts report – where the experts agreed the shading did not constitute substantial ongoing and unreasonable interference of the use and enjoyment of the neighbour’s land – where there was slight shading at the very early hours of winter’s morning of solar panels – where however it was appropriate that the tree keeper be required to prune back overhanging branches

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 46, s 66, s 66(3)(b)

Edmonds…

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 Lake v Isaac

Details

AGLC: Lake v Isaac [2023] QCAT 456
Case: [2023] QCAT 456
Decision Date: 22 November 2023

CaseChat Overview and Summary

The dispute in the case of Lake v Isaac involved neighbours, Slavica Lake and Ai Pi Isaac, concerning the impact of trees on Lake's property. Lake alleged that Isaac's trees caused shading that interfered with her use and enjoyment of her land, particularly affecting solar panels. The matter was heard in a relevant Australian court, which needed to determine the legal issues arising from the dispute. The primary legal questions included whether the shading constituted a substantial and unreasonable interference and whether any required action should be taken to address the issue.

The court considered the evidence from arborist experts who prepared a joint report concluding that while there was slight shading of solar panels, it did not amount to substantial and unreasonable interference. The experts found that the shading was minimal and occurred only during the very early hours of winter mornings. Despite this, the court determined that some action was necessary to address the overhanging branches that extended over the common boundary. The court reasoned that pruning these branches would mitigate the issue without unduly burdening Isaac. Consequently, the court ordered Isaac to prune the overhanging branches on her trees, specifying the timeframe and manner in which the work should be performed.

The final orders mandated that Isaac prune the trees extending over the common boundary once between January and March 2024 and annually thereafter. Should Isaac fail to comply, Lake was entitled to have the work performed and recover the costs from Isaac. Additionally, Isaac and any professionals she employed were required to provide notice before entering Lake's property to perform the work. The order specified qualifications for the arborist overseeing the pruning and was set to remain in effect for ten years. This decision balanced the interests of both parties by addressing the issue of overhanging branches without imposing an undue burden on Isaac.

Orders

Orders of the court

1. The respondent tree keeper Ai Pi Isaac shall prune the Cocos Palms and such other trees on her land at 24-26 Greygum Court, Ningi that extend branches or fronds over the common boundary with the neighbouring land belonging to Slavica Lake as follows.

2. The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of Ai Pi Isaac.

3. The work shall be done once in the period January to March 2024 inclusive, and thereafter annually in the period January to March.

4. Should the work not be done by end March 2024 Slavica Lake shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.

5. Should Slavica Lake be required to carry out the work in default of it being done by Ai Pi Isaac, a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by Slavica Lake shall be entitled to enter Ai Pi Isaac’s land to carry out the work, subject to Slavica Lake giving 14 days written notice of that intention to Ai Pi Isaac at her last known address.

6. The costs incurred by Slavica Lake engaging a tree lopper and arborist to do the work in default of Ai Pi Isaac shall be recoverable from Ai Pi Isaac as a debt without further notice being required to be given.

7. Ai Pi Isaac and any tree lopper or arborist engaged by her to perform the work shall be entitled to enter the applicant’s land for that purpose subject to 48 hours written notice being given of the work to be done.

8. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework (AQF) Level 3 in arboriculture.

9. This order shall remain in force and effect for a period of ten years.

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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