Leonardi v Watson & Harloe - [2015] QCATA 192

CITATION:

Leonardi v Watson & Harloe [2015] QCATA 192

PARTIES:	David Leonardi and Lisa Leonardi (Applicant/Appellant)
v
Allan James Watson and Barbara Mary Harloe (Respondent)

APPLICATION NUMBER:

APL299-15

MATTER TYPE:

Appeals

HEARING DATE:

11 December 2015

HEARD AT:

Townsville

DECISION OF:

Senior Member O’Callaghan
Member Browne

DELIVERED ON:

22 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Applications to rely on fresh evidence by both parties is refused.

2. Leave to appeal granted.

3. Appeal allowed.

4. The decision made by the Tribunal on 24 June 2015 is set aside and the following decision substituted: Application NDR243-13 is dismissed.

CATCHWORDS:

APPEAL – OTHER CIVIL DISPUTE – TREE DISPUTE – where respondents sought relief alleging the tree on the applicants’ property caused serious injury – where Tribunal order removal of tree – where Tribunal found the neighbour was seriously affected by pollen of the tree – where applicants seek leave to appeal – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b), s 147
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 65, s 66, s 69, s 72, s 73, s 75

Barker v Kyriakides [2007] NSWLEC 292; cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; cited
Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93; cited
Humphries & Anor v Poljak [1992] 2 VR 129; cited
Pickering v McArthur [2005] QCA 294; cited
Thomsen v White [2012] QCAT 381; cited

APPEARANCES:

APPLICANT:

David Leonardi and Lisa Leonardi in person

RESPONDENT:

Allan James Watson and Barbara Mary Harloe in person

REASONS FOR DECISION

Alan James Watson and Barbara Mary Harloe have lived in the suburb of Hyde Park for approximately 25 years.
Mr Watson and Ms Harloe are neighbours to David Leonardi and Lisa Leonardi (the Leonardis).
The Leonardis have a tree growing in their back yard and for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) are the tree keepers.
Mr Watson and Ms Harloe want the tree growing in the Leonardis’ back yard removed because they say Ms Harloe has an allergic reaction to the flowers; and the leaves, flowers and seed pods block the gutters on their property causing water to overflow.[1]
[1]Application for a tree dispute filed on 28 November 2013.
Mr Watson and Ms Harloe filed an application for a tree dispute. The application proceeded to a hearing in Townsville before a single member of the Tribunal. The Tribunal ordered the Leonardis to wholly remove the tree described as an ‘Albizia Lebbek’ within 60 days.[2] The Leonardis want to appeal that decision. The Tribunal’s order for the removal of the tree has been stayed pending the outcome of the application for leave to appeal or appeal.[3] Both parties filed applications to rely on fresh evidence in the appeal; and at the oral hearing of the appeal had an opportunity to read the Tribunal’s transcript from…

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 Leonardi v Watson & Harloe

Details

AGLC: Leonardi v Watson and Harloe [2015] QCATA 192
Case: [2015] QCATA 192
Decision Date: 22 December 2015

CaseChat Overview and Summary

Leonardi v Watson & Harloe involves a dispute over a tree growing on the Leonardi’s property, which allegedly caused harm to the Watsons. The case was initially heard in the Administrative Appeals Tribunal (AAT), which ruled that the tree should be removed due to the significant impact it had on the health of the Watsons, particularly in relation to the pollen it produced. The Leonardis sought leave to appeal the decision, arguing that the tribunal had erred in its findings and that the evidence did not support the removal of the tree. The court was required to decide whether the Leonardis had grounds to appeal and if so, whether the appeal should be granted.

The court considered the evidence presented by both parties regarding the impact of the tree on the health of the Watsons. It examined the extent of the harm caused by the pollen and whether the removal of the tree was a proportionate response. The court also evaluated the arguments made by the Leonardis about the sufficiency of the evidence and the tribunal’s decision-making process. Ultimately, the court determined that the Leonardis had demonstrated sufficient grounds to appeal and that the tribunal's decision was not supported by the evidence presented.

In granting the Leonardis leave to appeal and allowing the appeal, the court found that the tribunal had made errors in its assessment of the evidence. It concluded that the tribunal had not properly considered the medical evidence and had placed undue weight on the subjective experiences of the Watsons. The court set aside the tribunal's decision and substituted its own decision, dismissing the application for the removal of the tree. This outcome reflects the court's view that the evidence did not justify the drastic measure of tree removal and that the tribunal had exceeded its jurisdiction in making such an order.

Orders

Orders of the court

1. Applications to rely on fresh evidence by both parties is refused.

2. Leave to appeal granted.

3. Appeal allowed.

4. The decision made by the Tribunal on 24 June 2015 is set aside and the following decision substituted: Application NDR243-13 is dismissed.

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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