Robertson v Darvas

[2016] QCAT 136

CITATION: Robertson v Darvas [2016] QCAT 136

PARTIES:	Walter Henry Robertson (Applicant)
v
Steven Malcolm Darvas (Respondent)

APPLICATION NUMBER: NDR088-15

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 20 May 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

TREES – whether trees causing serious damage to land or property on land – leaf litter – whether trees causing severe obstruction of sunlight to windows – whether severe obstruction of sunlight to windows constitutes significant, ongoing and unreasonable interference with use and enjoyment of land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46, 48, 49, 52, 59, 62, 65, 66, 73, 74, 75
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 110, 111

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Thomsen v White [2012] QCAT 381

APPEARANCES:

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

What is this application about?

1. Mr Walter Robertson lives next door to Dr Steven Darvas in Buderim. Dr Darvas has, growing on his land along the boundary with Mr Robertson’s land, a number of trees. Mr Robertson says that the trees cause serious damage to his land or property on his land and cause a substantial ongoing and unreasonable interference with the use and enjoyment of his property. Mr Robertson wants the trees either removed or pruned.

The Trees and the dwelling on Mr Robertson’s land

1. The trees and shrubs complained of by Mr Robertson are located on Dr Darvas’s land along the rear boundary with Mr Robertson’s land. There are two lilly pilly trees and three trees, the species of which are unspecified.

2. In addition to the main dwelling on Mr Robertson’s land, there is a secondary dwelling. The secondary dwelling is described by Mr Robertson as self-contained with a kitchen and workshop. It is not entirely clear whether the secondary dwelling is attached to the main dwelling, although from the various photographs before the Tribunal this appears to be the case. In any event, I am prepared to accept that the secondary dwelling is a dwelling for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’).

3. The secondary dwelling has a number of windows on the eastern side of the structure. The trees are situated along the western boundary of Dr Darvas’s land.

The report by the arborist

1. To help the Tribunal, an arborist, Mr Inman, was appointed.[1] Mr Inman inspected the trees on 22 August 2015 and subsequently provided a report to the Tribunal.[2]

   [1]QCAT Act s 110.

   [2]Ibid s 111(1)(d); Report by Benjamin Inman dated 22 August 2015 (the assessor’s report).

2. Mr Inman identifies the lilly pillys as being approximately 7 metres in height, and the remaining trees approximately 3 metres to 4 metres in height. Together, the trees create…