Maskell v Ardill - [2022] QCAT 405

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Maskell v Ardill [2022] QCAT 405

PARTIES:

marc maskell

(applicant)

Tracey Ann Maskell

(applicant)

v

darren scott ardill

(respondent)

APPLICATION NO/S:

NDR128-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

6 December 2022

HEARING DATE:

28 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     Tracey Ann Maskell is joined as an applicant to the proceedings.

2.     The respondent tree keeper shall prune and maintain all trees on the tree keepers land which have branches overhanging the applicant’s property so that the branches are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, have the canopy heights and canopy cover of the trees reduced to ensure safety of property and people and health of the trees.

3.     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 the respondent tree keeper.

4.     The work shall be completed within 6 weeks from the date hereof.

5.     Should that work not be completed within that time the applicant 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.

6.     Should the applicant be required to carry out the work (and/or the annual pruning stipulated for below) in default of it being done by the respondent tree keeper a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicant shall be entitled to enter the respondent tree keeper’s land to carry out the work subject to the applicant giving 14 days written notice of that intention to the respondent tree keeper at the respondent tree keeper’s last known address.

7.     The costs incurred by the applicant engaging a tree lopper and arborist to do the work in default of the respondent tree keeper shall be recoverable from the respondent tree keeper as a debt without further notice being required to be given.

8.     The respondent tree-keeper shall ensure, every 12 months after initial pruning, that a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the branches of any trees on the respondent tree keeper’s land which overhang the applicant’s land are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, that the canopy heights and canopy cover of the trees are reduced in accordance with Order 1 above.

9.     The respondent tree keeper and any tree lopper or arborist engaged by the respondent tree keeper to perform the work or annual pruning shall be entitled to enter the applicants’ land at 149 Crosby Road, Hamilton subject to 24 hours written notice being given of the work to be done.

10.     A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework (AQF)…

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: [2022] QCAT 405
Decision Date

CaseChat Overview and Summary

In Maskell v Ardill, the Queensland Civil and Administrative Tribunal was asked to resolve a dispute between neighbours over the maintenance of trees on one party's property that were overhanging into the neighbour's property. The applicant, Marc Maskell, sought orders for the removal of some of the trees on the respondent's property. However, after receiving advice from a tree lopper, Mr Maskell limited his claim to an order that the trees be pruned and reduced in height. He also claimed that the trees caused shading that prevented sunshine reaching solar panels on his roof, that branches touched his house and grew inside open windows, and that the trees impeded views from the second floor and third floor viewing decks compared to when he bought the property. The respondent, Darren Ardill, did not file a response to the application and did not attend the hearing. The Tribunal found that the trees on the respondent's property did indeed overhang into the applicant's property and ordered that the overhanging branches be cut back to the boundary line. The Tribunal also ordered that the trees be pruned and reduced in height and canopy cover if necessary to ensure safety of property and people and health of the trees, but with a view to ensuring the trees are not destroyed. The Tribunal found that there was no evidence to support the applicant's claims that the respondent's trees obstructed light into windows or solar panels, or obstructed views from the second and third floor viewing decks. The Tribunal ordered that the work be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondent tree keeper, and that the work be completed within 6 weeks from the date of the order. The Tribunal also ordered that the respondent tree keeper ensure that a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the branches of any trees on the respondent tree keeper’s land which overhang the applicant’s land are cut back to the common fence line every 12 months after initial pruning.

The Tribunal found that the absence of any guidance from an arborist was troubling but it must do the best it can on the limited material available. The Tribunal ordered that the respondent tree keeper shall prune and maintain all trees on the tree keeper's land which have branches overhanging the applicant’s property so that the branches are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, have the canopy heights and canopy cover of the trees reduced to ensure safety of property and people and health of the trees. 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 the respondent tree keeper. The work shall be completed within 6 weeks from the date of the order. Should that work not be completed within that time the applicant 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. Should the applicant be required to carry out the work in default of it being done by the respondent tree keeper a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicant shall be entitled to enter the respondent tree keeper’s land to carry out the work subject to the applicant giving 14 days written notice of that intention to the respondent tree keeper at the respondent tree keeper’s last known address. The costs incurred by the applicant engaging a tree lopper and arborist to do the work in default of the respondent tree keeper shall be recoverable from the respondent tree keeper as a debt without further notice being required to be given. The respondent tree keeper shall ensure, every 12 months after initial pruning, that a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the branches of any trees on the respondent tree keeper’s land which overhang the applicant’s land are cut back to the common fence line, and as deemed appropriate pursuant to good arboriculture practice, that the canopy heights and canopy cover of the trees are reduced in accordance with Order 1 above. The respondent tree keeper and any tree lopper or arborist engaged by the respondent tree keeper to perform the work or annual pruning shall be entitled to enter the applicants’ land at 149 Crosby Road, Hamilton subject to 24 hours written notice being given of the work to be done. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework (AQF) level 5 in arboriculture. These orders shall remain in force and effect for a period of 10 years from the date hereof.

Orders