McDonald v Henry - [2013] QCAT 87

CITATION:

McDonald v Henry [2013] QCAT 87

PARTIES:	Kim Maree McDonald
v
Magaret Denise Henry

APPLICATION NUMBER:

NDR167-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

18 February 2013

HEARD AT:

Brisbane

DECISION OF:

Bevan Hughes, Member

DELIVERED ON:

18 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Margaret Denise Henry, the registered owner of the lot at 28 Anning Avenue, Golden Beach, will arrange for the removal of the Millettia Pinnata tree, the subject of this dispute, at her own cost.

2. The removal of the Millettia Pinnata is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.

3. Margaret Denise Henry will arrange for the grinding and removal of the stump of the Millettia Pinnata to prevent its regrowth, at her own cost.

4. The removal of the Millettia Pinnata and the grinding and removal of its stump are to be carried out within 90 days of the date of this order.

CATCHWORDS:

TREE DISPUTE – Likely to cause serious damage – roots and location - likely to cause substantial, ongoing and unreasonable interference – leaves and pods - obstruction of sunlight

Neighbourhood Disputes Resolution Act2011 ss 3, 41, 42, 65, 66, 69, 70, 71, 72, 73, 74, and 75

Edmonds v Yeates & Anor [2013] QCAT 7
Graham & Ors v Welch [2012] QCA 282
Kidman v Page [1959] QdR 53
Stormer v Ingram [1971] 21 SASR 93
Thomsen v White [2012] QCAT 2012 QCAT 381
Werndly & Ors v Orchard & Anor [2012] QCAT 599

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Kim Maree McDonald in person

RESPONDENT:

No appearance

REASONS FOR DECISION

What is this Application about?

Kim Maree McDonald wants her neighbour’s tree removed. Ms McDonald’s main concern is that the tree’s roots are likely to break through the pipes and foundations of her property. Ms McDonald is also concerned that the tree drops leaves and pods onto her property and shades her back yard.
Margaret Denise Henry is the registered proprietor of 28 Anning Avenue, Golden Beach[1] and Ms McDonald’s neighbour. Mrs Henry is a “tree keeper” as defined in the Neighbourhood Disputes Resolution Act 2011 (the Act).
[1] Land Title Search dated 9 July 2012.
The tree referred to in the application is a Millettia Pinnata.

Does the Tribunal have jurisdiction?

Having considered section 42 of the Act, the Tribunal is satisfied that chapter 3 applies to the tree.
The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.
As a precondition to the Tribunal’s jurisdiction, Ms McDonald has corresponded with Mrs Henry through her husband, Geoff Henry in an endeavour to resolve the matter, before applying to the Tribunal. Ms McDonald stated that she…

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 Henry

Details

AGLC: McDonald v Henry [2013] QCAT 87
Case: [2013] QCAT 87
Decision Date

CaseChat Overview and Summary

Kim Maree McDonald applied to the Queensland Civil and Administrative Tribunal for an order requiring her neighbour, Margaret Denise Henry, to remove a Millettia Pinnata tree from the latter's property. Ms McDonald argued that the tree was likely to cause serious damage to her property and caused substantial, ongoing and unreasonable interference with her use and enjoyment of her land. Mrs Henry did not appear or defend the application. The Tribunal found that the tree was likely to cause serious damage to Ms McDonald's property due to its close proximity to the dividing fence and her dwelling, and the encroachment of roots onto her property. However, the Tribunal found that the leaves and pods dropped by the tree did not constitute a substantial, ongoing and unreasonable interference, and the minor shade it cast on Ms McDonald's property was part of the natural incidence of a suburban landscape that includes trees. The Tribunal ordered Mrs Henry to arrange for the removal of the tree and its stump by a qualified arborist, at her own cost, within 90 days of the order.

The Tribunal had to decide whether the tree was likely to cause serious damage to Ms McDonald's property and whether it caused substantial, ongoing and unreasonable interference with her use and enjoyment of her land. The Tribunal found that the tree was likely to cause serious damage because it was planted so close to the dividing fence and Ms McDonald's dwelling, and the roots already encroached upon her property and extended to her dwelling. However, the Tribunal found that the leaves and pods dropped by the tree did not constitute a substantial, ongoing and unreasonable interference, and the minor shade it cast on Ms McDonald's property was part of the natural incidence of a suburban landscape that includes trees. The Tribunal ordered Mrs Henry to arrange for the removal of the tree and its stump by a qualified arborist, at her own cost, within 90 days of the order.

Orders