Marra v Miles - [2024] QCAT 162

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Marra v Miles [2024] QCAT 162

PARTIES:

JOEL WAYNE MARRA

(applicants)

KRISTINA JAYNE MARRA

(applicants)

v

ANN MILES

(respondent)

APPLICATION NO/S:

NDR146-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

16 April 2024

HEARING DATE:

23 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

1.     The African Tulip tree situated on the Respondent’s property at 54 Alec Avenue, Mermaid Waters, should be removed.

2.     The Applicants must arrange contractors with the necessary expertise, permits and insurance to have the tree removed and to grind the stump to ground level.

3.     All parts of the tree (and associated rubbish or debris) that have been cut down by the contractors must be removed from the Respondent’s property and disposed of by the contractors.

4.     The Applicants must pay all costs associated with having the tree removed and disposed of by the contractors.

5.     The Applicants must ensure that the area on the Respondent’s property from which the tree is removed is left in a clean and tidy condition.

6.     The Respondent must allow the Applicants’ contractors access onto the Respondent’s property to carry out any works to have the tree removed and any parts of the tree disposed of by the contractors. Such access must be allowed on the giving of 7 days’ notice by the Applicants to the Respondent’s agent.

7.     The Applicants must pay the sum of $400 into the Respondent’s nominated bank account by 26 April 2024 to enable her to purchase a replacement tree.

TREES – VEGETATION AND HABITAT PROTECTION – DISPUTE BETWEEN NEIGHBOURS – Where the Applicants allege that the tree situated on their neighbour’s property is affecting the ongoing use and enjoyment of their property by causing leaf debris to accumulate and the tree is likely to cause serious injury to a person or serious damage to property situated on the Applicants’ property – Where the Applicants allege that the tree causes substantial ongoing and unreasonable interference with the use and enjoyment of their property – Where the Applicants are seeking an order for the removal of the tree – Where the Respondent denies the allegations of the Applicants.

Biosecurity Act 2014 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 52, s 53, s 65, s 72, s 73

McDonald v Henry [2013] QCAT 87

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented.

First Respondent:

Represented by K Doroshenko, real estate agent.

REASONS FOR DECISION

The Applicants, Joel Wayne Marra and Kristina Jayne Marra (‘the Marras’), are the owners of a residential property situated at 52 Alec Avenue, Mermaid Waters on the Gold Coast.
The Respondent, Ann Miles (‘Miles’), is their next-door neighbour and is the owner of a residential property situated at 54 Alec Avenue. Miles is the tree keeper under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’).
This matter was heard before me on 13 and 23 February 2024 by Teams. The…

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 Marra v Miles

Details

AGLC: Marra v Miles [2024] QCAT 162
Case: [2024] QCAT 162
Decision Date: 16 April 2024

CaseChat Overview and Summary

In the matter of Marra v Miles, the dispute was between the applicants, the Marras, and the respondent, Ms Miles. The Marras sought an order for the removal of an African Tulip tree situated on Ms Miles’ property, which they alleged was causing damage to their own property. The court was required to determine whether the tree constituted a nuisance or if it was an issue that could be resolved through private negotiations between the parties.

The primary legal issue was whether the Marras had established a nuisance or some other form of tort that would justify the court ordering the removal of the tree. The court considered whether the tree was causing a material and unreasonable interference with the Marras’ enjoyment of their property and whether there was an alternative resolution to the dispute that would be more appropriate. The court also had to consider whether the removal of the tree would cause a greater nuisance or harm than the one it was currently causing.

The court found that the tree was causing a material and unreasonable interference with the Marras’ use and enjoyment of their property. The court determined that the tree constituted a nuisance and that the removal of the tree was the appropriate remedy. The court found that the Marras had demonstrated that the tree was causing damage to their property and that there was no other reasonable means of resolving the issue. The court ordered the removal of the tree and made various orders concerning the manner in which this was to be carried out, as well as the costs associated with the removal and disposal of the tree.

The court ordered that the Applicants must pay the sum of $400 to the Respondent by 26 April 2024 to enable her to purchase a replacement tree.

Orders

Orders of the court

1. The African Tulip tree situated on the Respondent’s property at 54 Alec Avenue, Mermaid Waters, should be removed.

2. The Applicants must arrange contractors with the necessary expertise, permits and insurance to have the tree removed and to grind the stump to ground level.

3. All parts of the tree (and associated rubbish or debris) that have been cut down by the contractors must be removed from the Respondent’s property and disposed of by the contractors.

4. The Applicants must pay all costs associated with having the tree removed and disposed of by the contractors.

5. The Applicants must ensure that the area on the Respondent’s property from which the tree is removed is left in a clean and tidy condition.

6. The Respondent must allow the Applicants’ contractors access onto the Respondent’s property to carry out any works to have the tree removed and any parts of the tree disposed of by the contractors. Such access must be allowed on the giving of 7 days’ notice by the Applicants to the Respondent’s agent.

7. The Applicants must pay the sum of $400 into the Respondent’s nominated bank account by 26 April 2024 to enable her to purchase a replacement tree.

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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