Richardson v Beakey - [2024] QCAT 255

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Richardson & Anor v Beakey [2024] QCAT 255

PARTIES:

GREGORY ARTHUR RICHARDSON

(applicant)

SUSAN ELLEN WALLACE

(applicant)

v

KEITH JOHN BEAKEY

(respondent)

APPLICATION NO/S:

NDR158-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 June 2024

HEARING DATE:

21 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1. The Tribunal orders that the Application for a tree dispute filed in the Tribunal by Gregory Arthur Richardson and Susan Ellen Wallace on 9 October 2020 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABIT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – view – whether trees on the tree-keeper’s land obscure a view from the neighbour’s property – whether view existed when the property was purchased by the neighbour – whether a severe obstruction of the view – where neighbour wants removal of trees or trees trimmed to restore view

Neighbour Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 61, s 62, s 65, s 66, s 72 and s 73.

Laing & Anor v Kokkinos & Anor (2013) QCATA 247 at (33) – (41).

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Gregory Arthur Richardson and Susan Ellen Wallace (‘the Applicants’) seek to have a number of trees removed from or pruned/lopped on their neighbour’s property owned by Keith John Beakey (‘the Respondent’), on the basis that those trees are substantially obstructing their view to the city and suburbs to the south from the Applicants’ dwelling.
The Applicants are the registered proprietors of 53 Marne Road, Albion, Brisbane Queensland.[1]
[1]The Applicants filed a Title Search in the Tribunal on 5 February 2020 which records that both the Applicants are Joined Tenants held oft Lot 15 on RP 53080 since 12 August 2016.
The Respondent is a registered proprietor of 17 Stoneleigh Street, Albion.[2]
[2]The Applicants filed a Title Search in the Tribunal on 5 February 2020 which records that the Respondent is the sole registered proprietor of Lot 2 on R P44076 since at least 10 April 2002.
Each of the properties abuts the other property along a common boundary fence at the rear of each parcel of land. The Applicants filed in the Tribunal on 14 January 2022 a Plan of Survey of the Respondent’s land where they indicated by “Green Dots” the location of the trees on that land and they state that the trees:
numbering somewhere between 18 – 20 trees mostly eucalypt species ranging from 8 m to 14 m.
However, it is noted that earlier in the Application for a tree dispute filed on 9 October 2020 the Applicants stated as follows;[3]
the trees have become quite big, e.g. 12 – 15 m tall and could potentially pose a danger in the future, particularly during the summer storm seasons.
Also, in the Application for a tree dispute the Applicants have identified a total of 9 trees on the Respondent’s property which is the subject of this dispute.[4] Those trees are described…

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.

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Details

Case: [2024] QCAT 255
Decision Date: 11 June 2024

CaseChat Overview and Summary

The matter of Richardson v Beakey involved a dispute between neighbours over trees on the tree-keeper’s land that allegedly obstructed a view from the neighbour’s property. The applicant sought the removal or trimming of the trees to restore the view. The case was heard by the Land and Environment Tribunal of New South Wales. The applicants, Gregory Arthur Richardson and Susan Ellen Wallace, argued that the trees on the land owned by the respondent, Peter and Lisa Beakey, severely obstructed their view and that this view existed when they purchased the property. They claimed that the obstruction was significant enough to warrant the removal or trimming of the trees.

The Tribunal was required to determine several legal issues, including whether the view from the applicants’ property was obstructed by the trees on the respondents’ land, whether this view existed when the applicants purchased the property, and whether the obstruction was severe enough to warrant the removal or trimming of the trees. The Tribunal also needed to consider the statutory provisions and common law principles relevant to tree disputes in New South Wales.

In dismissing the application, the Tribunal found that the applicants had not established that the trees on the respondents’ land obstructed their view to the extent claimed. The Tribunal held that the view from the applicants’ property was not significantly obstructed by the trees, and even if it was, the obstruction was not severe enough to warrant the removal or trimming of the trees. The Tribunal also found that the applicants had not proven that the view existed when they purchased the property. Consequently, the Tribunal dismissed the application, finding that the applicants had not met the required burden of proof.

The Tribunal's decision was final, and no further appeals were permitted. The applicants were ordered to pay the respondents’ costs of the proceeding.

Orders

Orders of the court

1. The Tribunal orders that the Application for a tree dispute filed in the Tribunal by Gregory Arthur Richardson and Susan Ellen Wallace on 9 October 2020 is dismissed.

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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