Radford v Neverfail Pty Ltd - [2014] QCAT 231

CITATION:

Radford v Neverfail Pty Ltd & Ors [2014] QCAT 231

PARTIES:	Kathryn Michelle Radford (Applicant)
V
Neverfail Pty Ltd; Andrew John Wilkinson and Ilma Raita Wilkinson (Respondents)

APPLICATION NUMBER:

NDR037-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

7 May 2014

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

30 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant, Kathyrn Michelle Radford must pay $400 and the respondents, Neverfail Pty Ltd, Andrew John Wilkinson and Ilma Raita Wilkinson jointly must pay $400 to the Tribunal towards the costs of a tree assessor to be appointed in respect of this application within 14 days of the date of this order.

CATCHWORDS:

TREE DISPUTE – question of how costs of tree assessor to be shared.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 112.
Practice Direction No 7 of 2013

APPEARANCES and REPRESENTATION (if any):

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

Dr Radford has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) to the Tribunal in regard to a Chinese elm tree located on the respondent tree-keeper’s land which, she alleges, has caused substantial interference with her use and enjoyment of her land by obstructing sunlight and a view.
The Tribunal has procedures[1] to ensure that relevant expert evidence is available to assist the Tribunal to make its decisions in regard to these applications. The “timely and effective resolution of disputes about trees is assisted by the tribunal and parties having access to independent expert evidence about the subject trees/s[2]”. The Tribunal will generally appoint an expert tree assessor to “avoid parties incurring excessive costs in engaging their own experts”[3].
[1] QCAT Practice Direction No 7 of 2013.
[2] Ibid, para 4.
[3]Ibid, para 5 (the Tribunal power to appoint an assessor and require a contribution is contained in s112 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)).
The Tribunal “may make an order requiring a party or all parties to pay or all or part of the cost of the parties may be required to pay all or part of the cost of the assessor up to a total of $800.00[4]”. The Tribunal “when considering the payment of the assessor’s costs will start from the proposition that the parties are to share equally the costs of the assessor. In its absolute discretion the Tribunal may make a different order, having regard to the contents of the application, any other submission or document filed in the proceeding and any other matter the Tribunal may consider relevant”[5].
[4] Ibid, para 6.
[5] Ibid, para 7.
In this case the Tribunal gave consideration to Dr Radford’s application and her submissions in regard to the Tribunal’s intention to appoint an assessor as stated in its direction of 5 March 2014 to make an order requiring the parties to contribute in equal shares to the cost of the assessor.
Dr Radford states that since the obstruction of the pre-existing eastern and north-eastern views, caused by the tree, she has been less likely to use major living areas of her home including the lounge, outside dining and veranda areas. She filed a copy of an advertisement with a photo of the view taken a couple of weeks prior to the auction date of 18 October 2003. A letter from the agent who sold Dr Radford her home was filed confirming that there was no obstruction to the view or to light, discussed below. Dr Radford alleges that substantial interference with the pre-existing view has been ongoing since Spring 2012.
When she purchased her land she states she was not aware of the tree, a Chinese elm, which she says is a pest or weed species. She first observed the tree two years later at the end of 2005 when the new owners purchased and cleared the land of a garden shed, bushes and vines except for some palms and the Chinese elm. She alleges that once the tree was exposed to sunlight it grew very rapidly.
Dr Radford further alleges that the tree causes obstruction of morning light to the side corner and back living areas of her home, both upstairs and downstairs including the pool area.
Dr Radford agreed to contribute 50% toward the assessors cost as equal shares between the two parties or 25% between each of the individual parties. She also asked that some personal matters be taken into account. When the final orders were made she asked that the Tribunal take into account her attempts to resolve the mater informally and work she had done to a boundary fence at her sole cost.
The Tree-keeper’s have filed a response in the Tribunal and made submissions in regard to the payment for the assessor. They deny that the tree the subject of the application is as described by Dr Radford and so is not a weed or pest species. They state that the photos provided by Dr Radford are not reliable and that the tree existed at the time of her purchase of the property. They also have a letter from the agent who sold the property to Dr Radford which contradicts the letter filed by Dr Radford.
They allege the house occupied by Dr Radford has been lifted shifted and extended so that the view that Dr Radford now has is significantly different from when she purchased the property. Further that Dr Radford is still able to access city views from her home albeit from alternate locations and is not affected by the tree at all or as alleged. The tree-keepers have filed extensive photos showing renovations to Dr Radford’s house and work at their property, as well as Google earth images.
They discuss the characteristics of the Chinese elm and note that it is deciduous and Dr Radford is able to seasonally enjoy the view. They describe the amenity aspects of the tree and its importance to the families who reside at the tree-keeper’s property.
They also note that there is no common law right to a view and that the owners of the tree-keeper’s property intend to extend their buildings which will also impact on Dr Radford’s views and light.
The tree-keeper’s submit that if the application should proceed then Dr Radford should bear all of the costs of the assessor. They note in their response that there are still un-resolved issues in regard to the dividing fences and retaining walls. This application though is not in that jurisdiction
Dr Radford’s application on its face raises issues in regard to a view and light that may if proven lead the Tribunal to make an order in her favour. The matters raised by the tree-keepers would be considered in any final decision of the Tribunal. The independent expert evidence of the tree assessor will assist the Tribunal to make its decision as intended in regard to such things as the type of tree involved and its characteristics, its growth pattern, the amenity of the tree, the effect of the tree on any view and light, There is nothing in either parties material to indicate that there is any greater merit in either of their positions and there are no other factors which would lead the Tribunal to depart from an equal sharing by the parties of the assessor’s costs.
The order of the Tribunal is the Applicant, Kathyrn Michelle Radford must pay $400 and the respondents, Neverfail Pty Ltd, Andrew John Wilkinson and Ilma Raita Wilkinson jointly must pay $400 to the Tribunal towards the costs of a tree assessor to be appointed in respect of this application within 14 days of the date of this order.