Oze v Samuels

[2020] QCAT 447

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Oze v Samuels & Anor [2020] QCAT 447

PARTIES:

ANITA OZE

(applicant)

v

IAN SAMUELS

GAYLE SAMUELS

(respondents)

APPLICATION NO/S:

NDR086-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

17 November 2020

HEARING DATE:

12 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application for a tree dispute filed 6 June 2019 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –

DISPUTES BETWEEN NEIGHBOURS – whether trees likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference – whether the interference that is an obstruction of sunlight is severe – whether the trees ought to be removed or trimmed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
Robertson v Darvas [2016] QCAT 136
Thomsen v White [2012] QCAT 381
Young v Salmon [2016] QCAT 508

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Mrs Gayle Samuels

REASONS FOR DECISION

1. Ms Oze and Mr and Mrs Samuels (the Samuels) are neighbours.

2. Ms Oze commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).[1] Essentially Ms Oze claims that there are eight palm trees (the Trees) located near the common boundary, which should be ordered to be removed at the Samuels’ cost.  Alternatively, she seeks an order that she is entitled to remove all the fronds from the Trees, which overhang her property.

   [1]Exhibit 1. Filed 6 June 2019.

3. The Samuels contend that the application should be dismissed.  In their Response[2] they sought orders for reimbursement of their costs including wages lost due to time taken off work.  There was no evidence before me in respect of such claims and I do not consider them further.

   [2]Exhibit 7.  Filed 15 July 2019.

4. Ms Oze claims the Trees:

   (a)are likely to cause serious injury to a person or to her land or property on her land within the next 12 months;

   (b)cause substantial, ongoing unreasonable interference with her use and enjoyment of her land;

   (c)cause an obstruction of sunlight. 

5. She says the Trees:

   (a)have damaged her car;

   (b)shade her roof so that it is uneconomic to install solar panels because the panels would operate inefficiently;

   (c)shade the northern windows to her house so that it is cold in winter, which increases her electricity consumption and costs;

   (d)are adversely affecting her ability to have a dividing fence constructed on the boundary and have caused the asbestos fence to move or lean;

   (e)drop nuts, which block her gutters;

   (f)drop their fronds from a great height, which she has to clean up and which potentially could hurt her children and herself and further damage her car;

   (g)drop nuts, which her dog eats and becomes ill.

6. Mr Cockram provided a Tree Assessor’s…