McDonald v Connolly - [2024] QCAT 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McDonald v Connolly [2024] QCAT 139

PARTIES:

IAN LESLIE McDONALD and SHARON MARION McDONALD

(applicant)

v

JOHN FRANCIS CONNOLLY and ROBYN LYN CONNOLLY

(respondent)

APPLICATION NO/S:

NDR134-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

4 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The Application for a tree dispute filed on 19 August 2021 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees caused substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s property – where applicant complains of the impact of trees situated on adjoining property comprising: leaf litter which affects the applicant’s pool, yard and garden; reduction in light to applicant’s living room and side path; and interference with guttering – where applicant’s dwelling existing at date of application subsequently replaced – whether appropriate to make orders under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 47, s 57, s 59, s 61, s 65, s 66

Belcher v Sullivan [2013] QCATA 304
Edwin & Anor v Campbell & Anor [2024] QCAT 86

APPEARANCES:

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

REASONS FOR DECISION

Introduction

By an Application for a tree dispute filed on 19 August 2021 (the Application), Ian Leslie McDonald and Sharon Marion McDonald (collectively referred to as ‘the Applicant’) seek orders pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) that John Francis Connolly and Robyn Lyn Connolly (collectively referred to as ‘the Respondent’) carry out work to remove trees and/or to remove or prune the branches of trees which are located on the Respondent’s property (and that the Respondent pay the cost of carrying out such work). The Applicant and the Respondent reside in adjoining properties at Enoggera in the State of Queensland.
A Tree Assessment Report dated 21 November 2022 (the Report) was prepared by Mr David Gunter, who holds a Diploma in Horticulture (Arboriculture) and a National Certificate in Arboriculture. Mr Gunter identified three groups of trees (collectively referred to as ‘the Trees’) along the side boundary of the Respondent’s property adjoining the Applicant’s property. The details of the Trees are set out in the Report as follows:

No Species DBH (mm) Height (m) Approx. Structure Vitality Notes

1 Bambusa oldhamii N/A 6-8 Average Average Recently reduced in height. New growth culms are higher than the average height noted by approx. 3-4 metres

2 Syzygium sp. Group 250 (avg) 12-15 Average Average Copse/informal hedge. Entire canopy of one tree extends phototropically over the applicants property. Some minor overhanging branches in upper canopy of remaining trees.

3 Bambusa gracilis Hedge N/A 6-8 Average Average Recently reduced in height and trimmed to fence. New growth culms…

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 McDonald v Connolly

Details

AGLC: McDonald v Connolly [2024] QCAT 139
Case: [2024] QCAT 139
Decision Date: 4 April 2024

CaseChat Overview and Summary

In the case of McDonald v Connolly, the applicant, McDonald, brought an application against Connolly, the respondent, under section 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). McDonald sought an order that certain trees on Connolly's property were causing substantial, ongoing and unreasonable interference with the use and enjoyment of McDonald's property. The dispute centred around the impact of trees situated on Connolly's adjoining property, which McDonald claimed caused issues such as leaf litter affecting the pool, yard and garden, a reduction in light to the living room and side path, and interference with the guttering. The application was made after McDonald's dwelling had been replaced, and the trees were still present on Connolly's property.

The legal issues before the court included whether the trees were causing substantial, ongoing and unreasonable interference with McDonald's use and enjoyment of the property, and whether it was appropriate to make orders under section 66 of the Act. The court had to consider the evidence provided by both parties and assess whether the interference caused by the trees met the statutory threshold for an order to be made. Additionally, the court needed to determine if the replacement of McDonald's dwelling affected the standing of the application.

The court dismissed the application, finding that the interference caused by the trees did not meet the statutory threshold for an order under section 66. The court considered the evidence and found that while the trees did cause some inconvenience to McDonald, the interference was not substantial, ongoing and unreasonable to the extent required by the Act. The court also noted that the replacement of McDonald's dwelling did not affect the standing of the application, as the trees were still present on Connolly's property. Consequently, the application was dismissed, and no orders were made in favour of McDonald.

Orders

Orders of the court

The Application for a tree dispute filed on 19 August 2021 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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CITATION:	McDonald v Connolly [2024] QCAT 139
PARTIES:	IAN LESLIE McDONALD and SHARON MARION McDONALD (applicant)
v
JOHN FRANCIS CONNOLLY and ROBYN LYN CONNOLLY (respondent)
APPLICATION NO/S:	NDR134-21
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	4 April 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Lumb
ORDERS:	The Application for a tree dispute filed on 19 August 2021 is dismissed.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees caused substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s property – where applicant complains of the impact of trees situated on adjoining property comprising: leaf litter which affects the applicant’s pool, yard and garden; reduction in light to applicant’s living room and side path; and interference with guttering – where applicant’s dwelling existing at date of application subsequently replaced – whether appropriate to make orders under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 47, s 57, s 59, s 61, s 65, s 66 Belcher v Sullivan [2013] QCATA 304 Edwin & Anor v Campbell & Anor [2024] QCAT 86
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

No	*Species*	DBH (mm)	Height (m) Approx.	Structure	Vitality	Notes
1	Bambusa oldhamii	N/A	6-8	Average	Average	Recently reduced in height. New growth culms are higher than the average height noted by approx. 3-4 metres
2	Syzygium sp. Group	250 (avg)	12-15	Average	Average	Copse/informal hedge. Entire canopy of one tree extends phototropically over the applicants property. Some minor overhanging branches in upper canopy of remaining trees.
3	Bambusa gracilis Hedge	N/A	6-8	Average	Average	Recently reduced in height and trimmed to fence. New growth culms…