Muller v Del Vecchio - [2020] QCAT 373

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Muller & Anor v Del Vecchio [2020] QCAT 373

PARTIES:
COLIN MULLER

AVERINE MULLER

(applicants)

v

FELICE DEL VECCHIO

(respondent)

APPLICATION NO/S:

NDR236-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 September 2020

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gaffney

ORDERS:
1.   The Application is amended to refer to the name of the Respondent as Felice Del Vecchio.

2.   The Respondent cause the row of Lilly Pilly trees or syzygium located on the Respondent’s land (Lot 4 on SP 142273) to be trimmed so that it is 2.5 metres in height from the Respondent’s ground level (‘the maintenance work’).

3.   The Respondent cause the maintenance work to be carried out once a year in the late winter or early spring by a suitably qualified and insured arborist.

4.   The Respondent pay the costs of the maintenance work.

5.   The Applicants provide such reasonable access to their land (but not any dwelling on the land) to the Respondent or his agents, at reasonable times, as may be required to allow the maintenance work to be carried out as ordered above, or to allow a quotation to be provided for the maintenance work, following seven (7) days’ written notice from the Respondent to the Applicants.

CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS - where a row of Lilly Pilly trees on the Respondent’s land were alleged to have resulted in obstruction of sunlight affecting the Applicants’ dwelling necessitating increased heating costs - where the Applicants sought orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where photographs revealed glass doors and windows of the Applicants’ dwelling in shade and the trees were the obvious cause – where the tree assessor found the trees to restrict sunlight by 80% - whether the obstruction of sunlight was ‘severe’ for the purpose of s 66(3)(b)(i) of the Act – whether the obstruction of sunlight amounted to substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land for the purpose of s 66(2)(b)(ii) of the Act – whether the Tribunal is bound by tree assessor’s opinion on interference - where the tree assessor found the trees provided privacy for the Respondent - whether orders should be made for work to be carried out to reduce the height of the trees.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 59, s 61, s 65, s 66, s 70(2), s 71, s 73,
s 75

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Durrington v Cassar [2014] QCAT 609
Laing v Kokkinos (No 2) [2013] QCATA 247
Marsh v Baxter [2015] WASCA 169

Neverfail Pty Ltd as Trustee for theHarris Siksna Family Trust v Radford [2016] QCATA 203

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

Background

The…

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 Muller v Del Vecchio

Details

AGLC: Muller v Del Vecchio [2020] QCAT 373
Case: [2020] QCAT 373
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the matter of Muller v Del Vecchio, the applicants sought orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) due to a dispute over a row of Lilly Pilly trees on the respondent’s land that allegedly obstructed sunlight, affecting the applicants’ dwelling and necessitating increased heating costs. The case was heard in the Queensland Civil and Administrative Tribunal.

The legal issues that the tribunal was required to decide included whether the obstruction of sunlight constituted a ‘severe’ interference under section 66(3)(b)(i) of the Act, and whether it amounted to a substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land under section 66(2)(b)(ii) of the Act. Additionally, the tribunal needed to determine whether it was bound by the tree assessor’s opinion on interference, and whether the trees provided privacy for the respondent, as found by the tree assessor.

The tribunal found that the obstruction of sunlight was severe, as the photographs revealed the applicants’ glass doors and windows in shade, with the trees being the obvious cause. The tree assessor’s finding that the trees restricted sunlight by 80% supported this conclusion. The tribunal was not bound by the tree assessor’s opinion on interference but found that the obstruction of sunlight amounted to a substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land. The tribunal ordered the respondent to trim the trees to a height of 2.5 metres, to be carried out annually by a suitably qualified and insured arborist, with the respondent to bear the costs of the maintenance work.

The tribunal further ordered that the applicants provide reasonable access to their land, excluding any dwelling on the land, to the respondent or their agents, at reasonable times, as required to allow the maintenance work to be carried out or to allow a quotation to be provided for the maintenance work, following seven days’ written notice from the respondent to the applicants. The application was also amended to correctly identify the respondent as Felice Del Vecchio.

Orders

Orders of the court

1. The Application is amended to refer to the name of the Respondent as Felice Del Vecchio.

2. The Respondent cause the row of Lilly Pilly trees or syzygium located on the Respondent’s land (Lot 4 on SP 142273) to be trimmed so that it is 2.5 metres in height from the Respondent’s ground level (‘the maintenance work’).

3. The Respondent cause the maintenance work to be carried out once a year in the late winter or early spring by a suitably qualified and insured arborist.

4. The Respondent pay the costs of the maintenance work.

5. The Applicants provide such reasonable access to their land (but not any dwelling on the land) to the Respondent or his agents, at reasonable times, as may be required to allow the maintenance work to be carried out as ordered above, or to allow a quotation to be provided for the maintenance work, following seven (7) days’ written notice from the Respondent to the Applicants.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*Muller & Anor v Del Vecchio* [2020] QCAT 373
PARTIES:	COLIN MULLER AVERINE MULLER
(applicants)
v
FELICE DEL VECCHIO
(respondent)
APPLICATION NO/S:	NDR236-18
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	11 September 2020
HEARD AT:	Brisbane
DECISION OF:	Adjudicator Gaffney
ORDERS:	1. The Application is amended to refer to the name of the Respondent as Felice Del Vecchio. 2. The Respondent cause the row of Lilly Pilly trees or *syzygium* located on the Respondent’s land (Lot 4 on SP 142273) to be trimmed so that it is 2.5 metres in height from the Respondent’s ground level (‘the maintenance work’). 3. The Respondent cause the maintenance work to be carried out once a year in the late winter or early spring by a suitably qualified and insured arborist. 4. The Respondent pay the costs of the maintenance work. 5. The Applicants provide such reasonable access to their land (but not any dwelling on the land) to the Respondent or his agents, at reasonable times, as may be required to allow the maintenance work to be carried out as ordered above, or to allow a quotation to be provided for the maintenance work, following seven (7) days’ written notice from the Respondent to the Applicants.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS - where a row of Lilly Pilly trees on the Respondent’s land were alleged to have resulted in obstruction of sunlight affecting the Applicants’ dwelling necessitating increased heating costs - where the Applicants sought orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where photographs revealed glass doors and windows of the Applicants’ dwelling in shade and the trees were the obvious cause – where the tree assessor found the trees to restrict sunlight by 80% - whether the obstruction of sunlight was ‘severe’ for the purpose of s 66(3)(b)(i) of the Act – whether the obstruction of sunlight amounted to substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land for the purpose of s 66(2)(b)(ii) of the Act – whether the Tribunal is bound by tree assessor’s opinion on interference - where the tree assessor found the trees provided privacy for the Respondent - whether orders should be made for work to be carried out to reduce the height of the trees. *Neighbourhood Disputes (Dividing Fences and Trees) Act* 2011 (Qld), s 46, s 59, s 61, s 65, s 66, s 70(2), s 71, s 73, s 75 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Durrington v Cassar [2014] QCAT 609 Laing v Kokkinos (No 2) [2013] QCATA 247 Marsh v Baxter [2015] WASCA 169 *Neverfail Pty Ltd as Trustee for the*Harris Siksna Family Trust v Radford [2016] QCATA 203
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)