Nethercott v Waddell - [2024] QCAT 190

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nethercott v Waddell [2024] QCAT 190

PARTIES:

PETER ASHLEY NETHERCOTT

(applicant)

EILEEN MARY NETHERCOTT

(applicant)

v

GARY WADDELL

(respondent)

BELINDA LEE WADDELL

(respondent)

APPLICATION NO/S:

NDR164-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 May 2024

HEARING DATE:

17 April 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

1.     Gary Waddell and Belinda Lee Waddell must remove all the lilly pilly trees (approximately 12 to 14 lilly pilly trees) that are situated adjacent to the common boundary fence with Peter Ashley Nethercott and Eileen Mary Nethercott by 4pm on 14 June 2024.

2.     Such removal of the lilly pilly trees must also include any stumps or roots of the said trees to ensure that the said trees do not regenerate or regrow.

3.     Gary Waddell and Belinda Lee Waddell must pay the sum of $1,817 into the nominated bank account of Peter Ashley Nethercott and Eileen Mary Nethercott by 4pm on 14 June 2024.

4.     Peter Ashley Nethercott and Eileen Mary Nethercott must advise Gary Waddell and Belinda Lee Waddell of their nominated bank account details.

CATCHWORDS:

TREES – VEGETATION AND HABITAT PROTECTION – DISPUTE BETWEEN NEIGHBOURS – Where the Applicants allege that the trees situated on their neighbours’ property is affecting the use and enjoyment of their property by causing roots from the trees to enter and block the underground drainage pipe situated on the Applicants’ proper - Where the Applicants are seeking an order for the removal of the trees and compensation – Where the Respondents deny the allegations of the Applicants.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 52, s 53, s 65, s 72, s 73

Cacopardo & Anor v Woolcock and Anor [2017] QCAT 214

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented – Peter Nethercott

Respondent:

Self-represented – Gary Waddell

REASONS FOR DECISION

The Applicants, Peter and Eileen Nethercott (‘Nethercotts’) are the owners of a residential house property situated at 24 Clifton Street, Northward, Townsville. They live in the house.
The Nethercotts’ property has a common side/back boundary with the residential house property situated at 29 Gregory Street, Northward, Townsville owned by the Respondents, Gary and Belinda Waddell (‘Waddells’). They also live in the house.
This hearing took place by Teams and remote conferencing on 17 April 2024. Present at the hearing were Peter Nethercott and Gary Waddell.
The Nethercotts filed an application (‘Application’) in the Tribunal on 3 August 2022 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’). The Nethercotts complain that the Waddells have planted approximately 12 to 14 lilly pilly trees and a foxtail palm directly against the common fence line and the roots of these trees are causing problems with the underground drainage pipe system that the Nethercotts have constructed. The Nethercotts are seeking an order for the removal of the trees and compensation for the cost of unblocking the pipe.
The position of the common boundary fence is shown on page 12 of the Application. Photographs…

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 Nethercott v Waddell

Details

AGLC: Nethercott v Waddell [2024] QCAT 190
Case: [2024] QCAT 190
Decision Date: 7 May 2024

CaseChat Overview and Summary

The case of Nethercott v Waddell was heard in a relevant Australian court. The Applicants, Peter Ashley Nethercott and Eileen Mary Nethercott, allege that trees on the Respondents' property, Gary Waddell and Belinda Lee Waddell, are affecting their use and enjoyment of their property. Specifically, the Applicants claim that the roots of the trees have entered and blocked the underground drainage pipe on their property. The Applicants seek an order for the removal of the trees and compensation for the alleged damage.

The central legal issues before the court were whether the trees on the Respondents' property were indeed causing the alleged damage to the Applicants' property and, if so, what remedies were appropriate. The Applicants argued that the trees were causing significant damage to their property and that the Respondents should be ordered to remove the trees and compensate the Applicants for the damage. The Respondents denied the allegations and argued that the Applicants' claims were without merit.

The court considered the evidence presented by both parties and concluded that the trees on the Respondents' property were indeed causing damage to the Applicants' property. The court found that the roots of the trees had entered and blocked the underground drainage pipe, leading to significant damage. The court ordered the Respondents to remove all the lilly pilly trees adjacent to the common boundary fence with the Applicants' property and to pay compensation to the Applicants. The court set specific timelines for the removal of the trees and the payment of compensation.

The final orders of the court require Gary Waddell and Belinda Lee Waddell to remove all the lilly pilly trees adjacent to the common boundary fence with the Applicants' property by 4pm on 14 June 2024. The removal must include any stumps or roots of the trees to prevent regrowth. The Respondents must also pay the Applicants the sum of $1,817 by the same deadline. The Applicants must provide the Respondents with their nominated bank account details to facilitate the payment.

Orders

Orders of the court

1. Gary Waddell and Belinda Lee Waddell must remove all the lilly pilly trees (approximately 12 to 14 lilly pilly trees) that are situated adjacent to the common boundary fence with Peter Ashley Nethercott and Eileen Mary Nethercott by 4pm on 14 June 2024.

2. Such removal of the lilly pilly trees must also include any stumps or roots of the said trees to ensure that the said trees do not regenerate or regrow.

3. Gary Waddell and Belinda Lee Waddell must pay the sum of $1,817 into the nominated bank account of Peter Ashley Nethercott and Eileen Mary Nethercott by 4pm on 14 June 2024.

4. Peter Ashley Nethercott and Eileen Mary Nethercott must advise Gary Waddell and Belinda Lee Waddell of their nominated bank account details.

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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