Ridley v Childs

[2014] QCAT 483

CITATION: Ridley v Childs [2014] QCAT 483

PARTIES:	Allan John Ridley and Winifred Anne Ridley (Applicants)
v
Adelheide Childs (Respondent)

APPLICATION NUMBER: NDR122-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: 4 September 2014

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 29 September 2014 (reasons)

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Applicants, Allan John Ridley and Winifred Anne Ridley jointly and the Respondent, Adelheide Childs must each pay $500 to the Tribunal towards the costs of a tree assessor to be appointed in respect to 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 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 (QCAT Act).

REASONS FOR DECISION

1. Mrs and Mrs Ridley have made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to the Tribunal in regard to trees located on Ms Childs’ land which, they allege, are causing substantial, ongoing and unreasonable interference with a view they had from their land.

2. 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]Practice Direction No 7 of 2013.

   [2]Practice Direction No 7 of 2013 [4].

   [3]Practice Direction No 7 of 2013 [5]. (The Tribunal power to appoint an assessor and require a contribution is contained in s 112 of the Queensland Civil and Administrative Tribunal Act 2009.)

3. The Tribunal ‘may make an order requiring a party or all parties to pay all or part of the cost of the assessor up to a total of $1,000.00’[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]Practice Direction No 7 of 2013 [6].

   [5]Practice Direction No 7 of 2013 [7].

4. In this case the Tribunal gave consideration to Mr and Mrs Ridley’s application and their submissions in regard to the Tribunal’s intention to appoint an assessor, as stated in its direction of 20 August 2014.

5. They state in their application that they had paid a premium price for their property when they purchased it in 2000, because of the panoramic mountain and sea views. At the time there was only one tree and now they have lost the view from their BBQ area and are concerned they will soon not have a view from their living area. They have spoken to Ms Childs about the issue and she said she had taken the top off one gum tree. The last time they spoke to her she had refused to discuss the issue. They stated that they are not requesting the removal of the trees only that they be trimmed at a level so as not to impede their view. They agreed in their submissions in regard to the appointment of the assessor to pay up to $500 towards the costs.

6. Ms Childs has not filed a response to the application. She noted this in her submissions and stated that in her response she would provide evidence from an engineer, that this is a dangerous slip area and no vegetation should be removed. She also said that a class 5 arborist has viewed the area and advised that to continue decrowning will kill the tree. She said she has informed the neighbours of this and cannot see why she should be responsible to pay for an assessor.

7. Mr and Mrs Ridley’s application on its face raises issues in regard to trees which may if proven lead the Tribunal to make an order in their favour. Matters raised by Ms Childs go to whether or not the Tribunal should make an order having regard to the characteristics of her land and the trees and will be taken into consideration 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 trees involved their characteristics, growth pattern, the amenity of the tree, and whether the trees are obstructing views and if so how that can be dealt with which would have regard to the matters raised by Ms Childs.

8. The expert evidence of the tree assessor will be required for the Tribunal to makes its decision and as the Tribunal starts from the perspective that each party should bear their own costs it will only be at the end of the hearing process and upon reconsideration that the Tribunal will be able to determine if it should depart from an equal sharing by the parties of the assessor’s costs.

9. The order of the Tribunal is that, the Applicants, Allan John Ridley and Winifred Anne Ridley the Respondent, Adelheide Childs must each pay $500 to the Tribunal towards the costs of a tree assessor to be appointed in respect to this application within 14 days of the date of this order.