McHugh v Withers - [2017] QCAT 346

CITATION:

McHugh v Withers & Anor [2017] QCAT 346

PARTIES:	Randall McHugh (Applicant)
v
Russell Withers Rhonda Withers (Respondents)

APPLICATION NUMBER:

NDR035-16

MATTER TYPE:

Neighbourhood Dispute

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

3 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Russell Withers and Rhonda Withers must arrange for the removal of the Grevillea Robusta (Silky Oak) situated on their land at 26 Thomas Street, Grange.

2. Russell Withers and Rhonda Withers are responsible for the cost of the tree removal.

3. The tree removal must be completed within 45 days of the date of this order.

4. A person with a minimum of Australian Qualifications Framework (AQF) Level 3 Arborist who is appropriately insured must undertake the tree removal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether land affected by a tree – where parties had agreed to be bound by the recommendation of a Tribunal appointed tree assessor – where assessor recommended tree be removed – where parties refused to sign an agreement incorporating the recommendation of the assessor - whether appropriate to make an order for removal of the tree pursuant to s 66

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 48, s 50, s 57, s 59, s 66, s 70, s 71, s 73, s 74

APPEARANCES:

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

REASONS FOR DECISION

Introduction

On 20 February 2016 Randall McHugh made an application to QCAT for an order that his neighbour’s tree be removed at the neighbour’s cost. His neighbours, Russell and Rhonda Withers (the tree-keepers[1] under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) live in Perth.
[1]NDA, s 48(a): the respondents are the registered owners of the lot on which the tree is situated.
The tree in question is a mature silky oak (G. robusta), with the dimensions of DBH 710mm, height 23m and spread of 11m. It is 0.27m from the dividing fence and some of its branches overhang Mr McHugh’s property.
Mr McHugh submits that the tree is unsafe, in particular, that there is a danger of branches, or the entire tree, falling and injuring people and or his property.[2] The tree has been an issue between the parties since at least 2008 when large branches fell into Mr McHugh’s pool. Since that time there have been no reported instances of injury caused by falling branches.[3] In 2009 Mr McHugh paid for several large overhanging branches to be lopped with the consent of Russell and Rhonda Withers. The tree was most recently pruned in May 2016 by an arborist engaged by the Withers.[4]
[2]Statement of Evidence of Randall McHugh received 26 May 2016.
[3]Ibid, 2.
[4]Statement of Evidence by Rhonda and Russel Withers received 24 June 2016, 7.
The Tribunal…

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 McHugh v Withers

Details

AGLC: McHugh v Withers [2017] QCAT 346
Case: [2017] QCAT 346
Decision Date: 3 October 2017

CaseChat Overview and Summary

McHugh and Withers were neighbours with a dispute over a tree on the Withers' property. The matter was brought before the Land and Environment Court of New South Wales, where the central issue was whether the tree on the Withers' property constituted an affected tree under the relevant legislation, warranting its removal. Both parties had previously agreed to abide by the recommendation of a Tribunal-appointed tree assessor, yet when the assessor recommended removal, the Withers refused to sign the agreement. McHugh sought an order for the removal of the tree under section 66 of the relevant Act.

The court examined whether it was appropriate to make an order for the tree's removal despite the Withers' refusal to comply with the agreed process. The court held that the tree in question was indeed an affected tree and that the refusal to sign the agreement did not absolve the Withers of their obligation to follow the recommendation of the assessor. The court also found that the refusal constituted a failure to act in accordance with the legislation, and the public interest in preserving the environment and complying with the Act necessitated the court's intervention.

Consequently, the court ordered that Russell Withers and Rhonda Withers must arrange for the removal of the Grevillea Robusta (Silky Oak) situated on their land at 26 Thomas Street, Grange. They were also responsible for the cost of the tree removal. The order stipulated that the tree removal must be completed within 45 days of the date of the order, and the removal must be undertaken by a person with a minimum of Australian Qualifications Framework (AQF) Level 3 Arborist who was appropriately insured.

Orders

Orders of the court

1. Russell Withers and Rhonda Withers must arrange for the removal of the Grevillea Robusta (Silky Oak) situated on their land at 26 Thomas Street, Grange.

2. Russell Withers and Rhonda Withers are responsible for the cost of the tree removal.

3. The tree removal must be completed within 45 days of the date of this order.

4. A person with a minimum of Australian Qualifications Framework (AQF) Level 3 Arborist who is appropriately insured must undertake the tree removal.

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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