McGowan v Griffiths - [2013] QCAT 373

CITATION:

McGowan v Griffiths [2013] QCAT 373

PARTIES:	Gary Kevin McGowan (Applicant)
v
Graeme William Griffiths (Respondent)

APPLICATION NUMBER:

NDR198-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

26 April 2013

HEARD AT:

Brisbane

DECISION OF:

Ms Peta Stilgoe, Senior Member

DELIVERED ON:

26 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application is dismissed.
Each party must bear their own costs of and incidental to the application.

CATCHWORDS:

TREE DISPUTE – whether substantial ongoing and unreasonable interference – whether tree existed before acquisition of property by neighbour
COSTS – whether costs should be ordered

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 66
Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102

Thomsen v White [2012] QCAT 381.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Gary Kevin McGowan
RESPONDENT:	Graeme William Griffiths

REASONS FOR DECISION

Mr McGowan built a house in leafy Fig Tree Pocket. He wanted to put solar hot water panels on his roof, but he says overhanging trees from the neighbour’s land prevent this. He also complains of tree litter blocking his gutters and clogging his swimming-pool.

The application he filed nominates eight trees to be removed. Queensland Civil and Administrative Tribunal (QCAT) sent an arborist to assess the problem. The arborist concluded that the trees were healthy and that removing them would have no influence on Mr McGowan’s leaf litter problem.

The arborist did recommend the removal of dead wood from the canopy and the removal of one tree, which is growing towards Mr McGowan’s property.

The tree-keeper, Mr Griffiths, engaged his own arborist. The arborist agrees that the trees are healthy and pose no serious risk to the neighbour. The arborist also agrees that one tree is growing towards Mr McGowan’s property, but he says that can be managed by pruning.

Section 66(2) of the Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 provide that QCAT may:

(2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a) to prevent serious injury to any person; or
(b) to remedy, restrain or prevent—
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

This Tribunal has already determined that leaf litter is not of itself a substantial ongoing and unreasonable interference, and in that regard I refer to Thomsen v White [2012] QCAT 381.

There is no evidence in any of the material of a likelihood of serious damage to the neighbour’s land or any property on the land, which leaves the question of sunlight.

Section 66(3) of the Act does provide that interference can be a severe obstruction of sunlight to a roof. However, the Tribunal must also have regard to section 72, which says that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved, and section 75(d) which says, in…

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 McGowan v Griffiths

Details

AGLC: McGowan v Griffiths [2013] QCAT 373
Case: [2013] QCAT 373
Decision Date

CaseChat Overview and Summary

In the case of McGowan v Griffiths, the applicant, Gary Kevin McGowan, sought an order to remove certain trees from the neighbour’s property, which he claimed were interfering with his use and enjoyment of his property. Graeme William Griffiths, the respondent, contested the application and sought compensation for trees allegedly cut down by Mr McGowan without authority, as well as costs for an arborist's report. The dispute was heard by Ms Peta Stilgoe, Senior Member, of the Queensland Civil and Administrative Tribunal (QCAT) on 26 April 2013. The central legal issues were whether the trees constituted a substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant's land, and whether the Tribunal should order costs in this matter.

The Tribunal examined the evidence, including reports from two arborists, one appointed by QCAT and one by the respondent. Both arborists found the trees to be healthy and not posing a serious risk to the neighbour's property, and one of the arborists suggested that the issues could be managed through pruning rather than removal. The Tribunal noted that the trees had existed before Mr McGowan built his house and therefore any issue of sunlight pre-existed the construction of his house. Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, the Tribunal must consider whether the tree existed before the neighbour acquired the land, and in this case, the trees did. Therefore, the Tribunal did not consider it appropriate to make an order in relation to the sunlight.

Further, the Tribunal emphasised that while arborists can provide expert evidence, it is not their role to decide the issues in dispute. The Tribunal found that the arborists' recommendations were for the health of the trees and did not address the specific problems identified by the Act. Consequently, the Tribunal dismissed the application, finding no basis to order the removal of the trees. The Tribunal also dismissed the counter-application regarding the compensation for trees cut down without authority, as the Act does not provide the Tribunal with the power to make orders in relation to trees not the subject of the dispute. Finally, the Tribunal declined to order costs to the respondent, finding that while Mr McGowan's application was proceeding in the face of contrary indications, it did not constitute vexatious behaviour.

The Tribunal delivered its decision on the same day as the hearing, dismissing the application and ordering that each party bear their own costs of and incidental to the application.

Orders