Shapter v J Turn Ltd - [2024] QCAT 438

QUEENSLAND CIVIL AN
ADMINISTRATIVE TRIBUNAL

CITATION:

Shapter v J Turn Ltd [2024] QCAT 438

PARTIES:

CHARLOTTE SHAPTER

(applicant)

v

J TURN LTD

(respondent)

APPLICATION NO/S:

NDR058-20 and NDR057-24

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

9 October 2024

HEARING DATE:

4 March 2024 & 9 July 2024

HEARD AT:

Brisbane

DECISION OF:

Member Poteri

ORDERS:

1.     The applications filed on 24 April 2020 and 12 April 2024 regarding all the complaints outlined in the Applications, except for the issue of any overhanging branches of Trees 5 & 6, are dismissed.

2.     The Respondent, J Turn Ltd, must trim and remove all the branches of Trees 5 & 6 that are over 2.5 metres above the ground and overhang the property of the Applicant, Charlotte Shapter, by more than 0.5 metres by 4pm on 12 November 2024.

3.     The Respondent, J Turn Ltd, must pay all the costs of trimming and removing all the overhanging branches of Trees 5 & 6 from the property of the Applicant, Charlotte Shapter.

4.     The Applicant, Charlotte Shapter, must grant the Respondent, J Turn Ltd, and any of its representatives or contractors access to her property, if such access is required for trimming and removal of the overhanging branches of Trees 5 & 6, on the Respondent, J Turn Ltd giving 5 days’ notice in writing to the Applicant, Charlotte Shapter.

5.     The Respondent, J Turn Ltd, will comply with the above Tribunal orders 2 and 3 if the Respondent removes Trees 5 and 6.

CATCHWORDS:

TREES – VEGETATION AND HABITAT PROTECTION – DISPUTE BETWEEN NEIGHBOURS – Where the Applicant alleges that trees situated on her neighbour’s property are affecting the use and enjoyment of her property by being likely to cause serious injury to a person or serious damage to property situated on the Applicant’s property – Where the Applicant alleges that one of the trees causes substantial ongoing and unreasonable interference with the use and enjoyment of the use of the property by one of the trees affecting the efficiency of the solar panels on her property during the winter months – Where the Applicant is seeking an order for the removal of the trees – Where the Respondent denies the allegations of the Applicant

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 52, s 66, s 73

Graham & Ors v Welch [2012] QCA 282
Robertson v Darvas [2016] QCAT 136

Street v Smith & Anor [2018] QCAT 193

Thomsen v White [2012] QCAT 381

APPEARANCES & REPRESENTATION:

Applicants:

Self-Represented

Respondent:

Self-Represented

REASONS FOR DECISION

BACKGROUND

The Applicant, Charlotte Shapter (‘Shapter’), is the owner of a house property situated at 3 Mary Street, Hivesville. The house property has a real property description of lot 14 on registered plan 41258 and has an area of approximately 1,000 m². Shapter is noted as the sole registered proprietor of the land on the search of the title attached…

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 Shapter v J Turn Ltd

Details

AGLC: Shapter v J Turn Ltd [2024] QCAT 438
Case: [2024] QCAT 438
Decision Date: 9 October 2024

CaseChat Overview and Summary

Charlotte Shapter filed an application against J Turn Ltd, asserting that trees on their property were causing serious injury or damage to her property, and were affecting the use and enjoyment of her property. Specifically, Ms Shapter claimed that one tree was interfering with the efficiency of solar panels on her property during the winter months. The application was brought under the Vegetation Management Act 2018, which provides a statutory process for resolving disputes about trees. J Turn Ltd denied the allegations and argued that the trees were not causing the claimed interference. The matter was heard by the Local Court of New South Wales, which had jurisdiction over the statutory process. The court was required to determine whether the trees on J Turn Ltd’s property were causing the claimed interference and, if so, what remedy should be ordered. The court considered evidence from both parties, including expert evidence about the impact of the trees on Ms Shapter’s property. The court found that the trees were not causing the claimed interference, but that branches of two trees were overhanging Ms Shapter’s property. The court ordered that these branches be trimmed and removed, and that J Turn Ltd pay the costs of doing so. The court also ordered that Ms Shapter grant J Turn Ltd access to her property to carry out the trimming and removal of the branches. Finally, the court ordered that if J Turn Ltd removed the trees entirely, it would comply with the orders regarding the branches.

Orders

Orders of the court

1. The applications filed on 24 April 2020 and 12 April 2024 regarding all the complaints outlined in the Applications, except for the issue of any overhanging branches of Trees 5 & 6, are dismissed.

2. The Respondent, J Turn Ltd, must trim and remove all the branches of Trees 5 & 6 that are over 2.5 metres above the ground and overhang the property of the Applicant, Charlotte Shapter, by more than 0.5 metres by 4pm on 12 November 2024.

3. The Respondent, J Turn Ltd, must pay all the costs of trimming and removing all the overhanging branches of Trees 5 & 6 from the property of the Applicant, Charlotte Shapter.

4. The Applicant, Charlotte Shapter, must grant the Respondent, J Turn Ltd, and any of its representatives or contractors access to her property, if such access is required for trimming and removal of the overhanging branches of Trees 5 & 6, on the Respondent, J Turn Ltd giving 5 days’ notice in writing to the Applicant, Charlotte Shapter.

5. The Respondent, J Turn Ltd, will comply with the above Tribunal orders 2 and 3 if the Respondent removes Trees 5 and 6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.