Rice v Livingstone - [2014] QCAT 345

CITATION:

Rice v Livingstone [2014] QCAT 345

PARTIES:	Michael Rice and Helen Rice (Applicant)
v
Albert Thomas Livingstone and Betty Livingstone (Respondent)

APPLICATION NUMBER:

NDR058-13

PARTIES:	Elizabeth Peek (Applicant)
v
Albert Thomas Livingstone and Betty Livingstone (Respondent)

APPLICATION NUMBER:

NDR059-13

PARTIES:	Robert and Anne Grant (Applicant)
v
Albert Thomas Livingstone and Betty Livingstone (Respondent)

APPLICATION NUMBER:

NDR060-13

PARTIES:	Dieter and Christiane Klein (Applicant)
v
Albert Thomas Livingstone and Betty Livingstone (Respondent)

APPLICATION NUMBER:

NDR061-13

PARTIES:	Ronald and Mariette Gove (Applicant)
v
Albert Thomas Livingstone and Betty Livingstone (Respondent)

APPLICATION NUMBER:

NDR062-13

MATTER TYPE:

Other civil dispute matters

HEARING DATES:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cotterell

DELIVERED ON:

15 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Livingstones shall:

a. have the Bauhinia located one metre from the Rice’s boundary trimmed to 2.5m above the ground.

b. have the 3 camphor laurels numbered 4, 7 and 8 on Mr Young’s Table 1 of his report dated 11 October 2013 trimmed to 2.5m above the ground.

2. In view of the above Orders, the Tribunal declines to make an on-going order for height maintenance.

3. The Tribunal dismisses the following Applications:

a. Elizabeth Peek (NDR059-13);

b. Robert & Anne Grant (NDR060-13);

c. Ronald & Mariette Gove (NDR062-13).

4. The Tribunal allows the Application by Laurence and Sylvia Pope to be substituted for that of Dieter and Christiane Klein (NDR061-13) and that the material provided by the Kleins may be used by the Popes as far as it is relevant to their application, which has a possession date of 22 April 2014, but dismisses their application.

CATCHWORDS:

TREE DISPUTE – assessing the view at the date applicant took possession – assessing the view involves the totality of the outlook from the dwelling – severity of obstruction then considered – what is unreasonable interference – each tree to be considered –
other considerations involve balancing interests – trees as Declared pests

Neighbourhood Disputes Resolution Act 2011 (Qld) ss 42, 45 – 48, 65, 66, 72, 73, 75

Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14
Land Protection (Pest and Stock Route Management) Act 2002 (Qld) , considered
Land Protection (Pest and Stock Route Management) Regulation 2003 (Qld) , considered

Haindl v Daisch [2011] NSWLEC 1145, followed
Wood v Berg [2011] NSWLEC 1068, followed
Bagley v Guthrie [2012] NSWLEC 1252, followed
Graham & Ors v Welch [2012] QCA 282, cited

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

These applications are brought by;
a)    Michael Rice and Helen Rice (the Rices) (NDR058-13);
b)    Elizabeth Peek (Ms Peek) (NDR059-13);
c)    Robert and Anne Grant (the Grants) (NDR060-13);
d)    Dieter and Christiane Klein (the Kleins) (NDR061-13);
e)    Ronald and Mariette Gove (the Goves) (NDR062-13);
(the Applicants) against Albert Thomas Livingstone and Betty Livingstone (the Livingstones) under the Neighbourhood Disputes Resolution Act

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 Rice v Livingstone

Details

AGLC: Rice v Livingstone [2014] QCAT 345
Case: [2014] QCAT 345
Decision Date

CaseChat Overview and Summary

The applicants in this case are five neighbours of the respondents, Albert and Betty Livingstone. They brought applications under the Neighbourhood Disputes Resolution Act 2011 (Qld) (the Act) alleging that trees on the Livingstones’ property caused substantial ongoing and unreasonable interference with the use and enjoyment of their land because they severely obstructed the view which existed when they took possession of their land. The Rices (NDR058-13), the Goves (NDR062-13), the Grants (NDR060-13), and Elizabeth Peek (NDR059-13) had applications dismissed, and the Kleins (NDR061-13) were replaced by Laurence and Sylvia Pope who also had their application dismissed. The Rices’ application was allowed in part, and the Livingstones were ordered to trim a Bauhinia and three camphor laurels to 2.5m above the ground. The Tribunal declined to make an on-going order for height maintenance. The key issues were determining the view that existed when each of the Applicants took possession of their land and whether the obstruction of the view was severe. The Tribunal found that the Rices had a substantial, ongoing and unreasonable interference with the use and enjoyment of their land by the Bauhinia and the 3 camphor laurels. The Tribunal considered the relevant matters under sections 73 and 75 of the Act before making its orders.

Orders