McLachlan & Anor v Williams - [2024] QCAT 11

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McLachlan & Anor v Williams [2024] QCAT 11

PARTIES:

MARGO MCLACHLAN
ANDREW STUART MCLACHLAN

(applicants)

v

PAUL WILLIAMS

(respondent)

APPLICATION NO/S:

NDR211-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 January 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

The application is dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where applicants contend respondent’s trees ought to be removed to prevent serious injury and serious damage to property and remedy substantial, ongoing, and unreasonable interference with the use and enjoyment of their land.

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 46, s 66, s 73, s 75

Edmonds v Yeates [2013] QCAT 7

Graham & Ors v Welch [2012] QCA 282

McLachlan & Anor v Williams [2018] QCAT 371

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The applicants live in a double story house situated on a 405m² parcel of land.
The respondent lives in a house on adjoining land.
There are eleven trees (‘trees’) on the respondent’s land. The trees are situated approximately one meter from a fence which divides the two parcels of land.
The applicants move for the Tribunal to make an order removing the trees because:[1]
(a)the soil on their allotment is highly reactive and they contend direct and passive damage to infrastructure will occur if the trees remain in place.
(b)the trees may cause injury if they topple or branches from the trees drop.
(c)the trees are a nuisance, they are interfering with the reasonable enjoyment of their land by shedding branches, they are restricting sunlight, and they are preventing the applicants from installing solar panels.
(d)tree roots have entered stormwater pipework on their property.
(e)the trees have damaged their fence.
(f)The trees have caused flooding in their house.
[1]Application for a tree dispute, 15.12.20; Statement of Margo McLachlan & Andrew McLachlan, 23.08.22.
The applicants rely on a report by Baxter Consulting Engineers, dated 12 July 2019 (‘Baxter report’). Concerning the trees, the Baxter report relevantly states:[2]
A line of significant trees was observed to be present continuing along the left side of the property.
A line of significant trees is able to cause a drying effect to reactive clay foundation material a distance from the tee 1.5 times the mature height of the tree.
It is recommended that the significant trees be removed and the root systems poisoned to prevent regrowth.
….
It should be noted that the removal of the trees will likely result in a normalising (increase) in the level of moisture in the reactive clay foundation material with a corresponding lifting of level to the foundation material.
That is, distress to the slab and footing system is highly likely to occur with the presence of the trees remaining and 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 McLachlan & Anor v Williams

Details

AGLC: McLachlan & Anor v Williams [2024] QCAT 11
Case: [2024] QCAT 11
Decision Date: 5 January 2024

CaseChat Overview and Summary

The applicants, McLachlan and another, sought to have trees on the property of the respondent, Williams, removed. The applicants claimed that the trees were causing serious injury to their property and substantial, ongoing, and unreasonable interference with the use and enjoyment of their land. The dispute was heard by the court, which had to consider the applicants' claims and the respondent's defence.

The primary legal issue before the court was whether the applicants had established that the trees on the respondent's property constituted a substantial, ongoing, and unreasonable interference with their use and enjoyment of their land. The court also had to consider whether the removal of the trees was necessary to prevent serious injury and serious damage to the applicants' property. The court considered evidence from both parties and relevant statutory provisions and case law.

The court found that the applicants had not provided sufficient evidence to establish that the trees on the respondent's property constituted a substantial, ongoing, and unreasonable interference with their use and enjoyment of their land. The court also found that the applicants had not demonstrated that the removal of the trees was necessary to prevent serious injury and serious damage to their property. The court held that the applicants had not made out a case for the removal of the trees, and the application was dismissed. The court did not make any further orders.

Orders

Orders of the court

The application 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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