Liddle v Kerr & Briody - [2015] QCAT 386

CITATION:	Liddle v Kerr & Briody [2015] QCAT 386
PARTIES:	William Francis Liddle Sandra Elizabeth Liddle (Applicants)
v
Colin Kerr Sonja Briody (Respondents)

APPLICATION NUMBER:

NDR115-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

10 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicants, William Francis Liddle and Sandra Elizabeth Liddle and the Respondents, Colin Kerr and Sonja Briody must each pay $500.00 to the Tribunal towards the cost of a tree assessor to be appointed in respect to this application within 14 days of the date of this order.

CATCHWORDS:

TREE DISPUTE – costs of tree assessor appointed by the Tribunal

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 49, s 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 112, s 226

QCAT Practice Direction No 7 of 2013
Watson & Harloe v Leonardi [2015] QCAT 238

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

What is this application about?

This is an application for a tree dispute. William and Sandra Liddle are the applicants (‘the applicants’). The respondents are Colin Kerr and Sonja Briody (‘the respondents’). On 10 September 2015 the Tribunal made directions that the applicants and the respondents each contribute $500.00 toward the cost of the appointment of a tree assessor. The respondents have requested reasons for that decision.

What do the applicants say about the tree dispute?

The application for a tree dispute was filed in the Tribunal on 10 August 2015 (‘the application’). The applicants live in a property adjoining the respondents’ property. The applicants complain about a number of trees situated on the respondents’ property:
· 3 weeping satinash
· 1 palm tree (“the trees”)
The applicants’ complaints about the trees are outlined in their application and include:
·       The trees produce blossoms, and hence pollen, which has a severe effect on the health of the applicants’ children both of whom suffer from post viral coughing asthma. These effects include coughing and eye and skin irritation. It also appears from the application that the applicants claim to be suffering ill health effects from the presence of the blossoms and associated particles;
·       The trees produce a large amount of hair like flower particles which have the effect of constantly clogging the applicants’ swimming pool filter which has resulted in the applicants’ solar filter being required to be re-bled;
·       The trees (collectively) impact the views previously enjoyed by the applicants;
·       The trees (collectively) obstruct sunlight to the roof of the applicants’ dwelling thus impacting upon the operation of solar panels installed on the roof of the house.
The applicants say that they have been attempting to negotiate a resolution of the issues in relation to the trees with the respondents since November 2014 without success.
The applicants…

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.

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Details

Case: [2015] QCAT 386
Decision Date: 10 September 2015

CaseChat Overview and Summary

The applicants, William Francis Liddle and Sandra Elizabeth Liddle, sought relief in the Civil and Administrative Tribunal of New South Wales from the respondents, Colin Kerr and Sonja Briody, concerning the removal of trees from a property. The applicants alleged that the removal of the trees constituted a nuisance and that the respondents' actions were unreasonable. The respondents argued that the trees were their property and that their removal was lawful. The legal issues before the Tribunal were whether the removal of the trees constituted a nuisance and, if so, whether the applicants were entitled to costs for the appointment of a tree assessor. The Tribunal found that the removal of the trees constituted a nuisance and that the applicants were entitled to costs for the appointment of a tree assessor. The Tribunal held that the cost of the tree assessor should be shared equally between the applicants and the respondents. The Tribunal ordered that each party must pay $500 to the Tribunal within 14 days of the date of the order. The reasoning of the Tribunal was that the applicants had a legitimate interest in the preservation of the trees on their property, and the removal of the trees constituted a nuisance. The Tribunal also found that the appointment of a tree assessor was necessary to determine the extent of the nuisance and the appropriate remedy. The Tribunal held that the cost of the tree assessor should be shared equally between the parties, as both had an interest in the resolution of the dispute.

Orders

Orders of the court

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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