Samuel Court at Woody Point v Brown
[2014] QCAT 435
•2 September 2014 (Reasons)
| CITATION: | Samuel Court at Woody Point v Brown [2014] QCAT 435 |
| PARTIES: | Samuel Court at Woody Point CTS 35689 (Applicant) |
| v | |
| Christopher Brown and Deborah Brown (Respondents) |
| APPLICATION NUMBER: | NDR095-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 7 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 2 September 2014 (Reasons) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant, Samuel Court at Woody Point CTS 35689 and the Respondents, Christopher brown and Deborah Brown must each pay $500.00 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 (Qld) s 112. |
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
Samuel Court has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the NDR Act, to the Tribunal in regard to trees located on Mr and Mrs Brown’s land which, it alleges, have caused substantial, ongoing and unreasonable interference with the use and enjoyment of its land.
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 paragraph 4.
[3]Ibid paragraph 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
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] Ibid paragraph 6.
[5] Ibid paragraph 7.
In this case the Tribunal gave consideration to Samuel Court’s application. Samuel Court stated that it wished to leave the decision in regard to the assessor’s costs up to the Tribunal in response to the Tribunal’s intention to appoint an assessor, as stated in its direction of 8 July 2014.
Samuel Court provided with its application copies of correspondence showing that it had attempted to resolve the issues with the Browns. In that correspondence it raised issues of gutters filling with leaves, constant weeding of germinating seed pods, flowers that produce particles which enter residents units and onto furniture and floors, allergic reactions of residents to the flower particles and the mess made by the leaves. The application also alleges that there is a lack of sunshine in the courtyard causing mould to grow and notes that there trees had previously been lopped and have grown back.
Mr and Mrs Brown have not filed a response to the application but did file submissions in regard to the assessor’s costs. They indicated that a representative of Samuel Court had trespassed on their property for the purpose of getting a quote to cut down trees. That they did not want the assessor on site and the cost of the assessor would likely exceed the cost of the removal of the trees which would financially disadvantage both parties. Neither party has provided a quote to the Tribunal for the removal of the trees.
Mr and Mrs Brown state that Samuel Court has not stated what part of the legislation has been breached and an assessor should not be sent until Samuel Court state what specific legislation has been breached. The legislation is clearly the NDR Act and Samuel Court has alleged substantial, ongoing and unreasonable interference with the use and enjoyment of its land which is one of the grounds which if proven would enable the Tribunal to make an order. Mr and Mrs Brown then raise issues with the claims made in the application in particular as to whether the trees are growing over Samuel Courts’ land that the photos included do not show an accumulation of pods on the ground nor demonstrate an excessive amount of litter in the gutters. The photos do show sunlight reaches the courtyard and that the majority of trees are not on the boundary with Samuel Court. Questions are raised about the sources of information and it is denied that the trees have previously been lopped.
Samuel Court’s application on its face raises issues in regard to substantial, ongoing and unreasonable interference with the use and enjoyment of its land. Mr and Mrs Brown have raised issues in response to the application which go to the validity of the claims made. The independent expert evidence of the tree assessor will assist the Tribunal to make its decision as intended by ensuring that an inspection occurs of the site and that the tree affects if nay can be properly ascertained and it will then be for the Tribunal to determine if any order should be made.
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. There is nothing raised in the submissions of Mr and Mrs Brown which at this stage would change that view. The Tribunal notes the allegation that a representative from Samuel Court trespassed on Mr and Mrs Brown land and confirms that the fact of a tree-dispute does not give a part a right to enter another parties land without consent.
The order of the Tribunal is that, the Applicant, Samuel Court at Woody Point CTS 35689 and the Respondents, Christopher brown and Deborah Brown must each pay $500.00 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.
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