McConnell v Zenalee Pty Ltd - [2013] QCAT 249

CITATION:

McConnell v Zenalee Pty Ltd [2013] QCAT 249

PARTIES:	Margaret McConnell (Applicant)
v
Zenalee Pty Ltd (Respondent)

APPLICATION NUMBER:

NDR065-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

22 May 2013

HEARD AT:

Brisbane

DECISION OF:

Paul Kanowski, Member

DELIVERED ON:

27 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Zenalee Pty Ltd is to have the dead tree (referred to as tree 3 in Mr Inman’s report) at 24 Satton Street, Russell Island, cut down completely. Any part of the felled tree on Ms McConnell’s land is to be removed by Zenalee Pty Ltd.

2. The work is to be carried out at Zenalee Pty Ltd’s expense.

3. The work is to be completed on or before 26 July 2013.

CATCHWORDS:

TREES – overhanging neighbour’s yard – minor tree debris falling on neighbour’s property –– whether substantial, ongoing and unreasonable interference – costs of removal where poisoning alleged

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 46, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 74, s75

Barker v Kyriakides [2007] NSWLEC 292
Thomsen v White [2012] QCAT 381

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self

RESPONDENT:

Ya-Chun Chen, a director of Zenalee Pty Ltd

REASONS FOR DECISION

Introduction

Ms McConnell lives at 22 Satton Street on Russell Island. Next door, at 24 Satton Street, is a vacant lot with a number of Bribie Island pine trees near the boundary with Ms McConnell’s lot. Parts of the trees overhang Ms McConnell’s yard. Ms McConnell would like six trees to be cut down. One is dead, and the others drop needles and other small debris into her yard. Ms McConnell is worried the trees will fall onto her property in a storm.
The owner of the vacant lot, Zenalee Pty Ltd, wants the living trees preserved. Ms Chen, on behalf of Zenalee, does not object to the dead tree being cut down, but argues that Ms McConnell should bear some or all of the cost. This is because Ms McConnell allegedly caused the death of the tree by spraying poison.
Ms McConnell applied to QCAT on 21 March 2012 for orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

Background

The trees were there when Ms McConnell and Zenalee purchased their properties in 2003. Ms McConnell told me the trees were large in 2003, and there was some overhang even then, but they are now substantially larger.
The side of Ms McConnell’s house which faces toward Zenalee’s land and the trees appears, from the photos, to be a blank wall. Between the wall and the dividing fence is a shade sail, under which Ms McConnell parks one of her two vehicles. She also parks the other vehicle on that side of her yard. There is no carport. She says, and I accept, that there is no room for the vehicles on the other side of the house. The distance from the edge of the house…

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 McConnell v Zenalee Pty Ltd

Details

AGLC: McConnell v Zenalee Pty Ltd [2013] QCAT 249
Case: [2013] QCAT 249
Decision Date

CaseChat Overview and Summary

Margaret McConnell applied to the Queensland Civil and Administrative Tribunal (QCAT) for orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in relation to a number of pine trees on her neighbour’s property, Zenalee Pty Ltd. Ms McConnell claimed that the trees, which overhang her yard, cause serious injury or damage to her property, or cause substantial, ongoing and unreasonable interference with the use and enjoyment of her property. Zenalee Pty Ltd, represented by a director, Ms Chen, argued that the trees should not be cut down, and that Ms McConnell should bear some or all of the cost if the trees are cut down, because Ms McConnell allegedly caused the death of one of the trees by spraying poison. The Tribunal decided that the dead tree should be cut down, but rejected the other claims. The Tribunal found that the cost of cutting down the tree should be borne by Zenalee Pty Ltd, not Ms McConnell. The Tribunal ordered that Zenalee Pty Ltd is to have the dead tree cut down completely, with any part of the felled tree on Ms McConnell’s land to be removed by Zenalee Pty Ltd. The work is to be carried out at Zenalee Pty Ltd’s expense, and completed on or before 26 July 2013.

Orders