Smithies v Lowe - [2020] QCAT 437

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Smithies & Anor v Lowe & Anor [2020] QCAT 437

PARTIES:

In NDR116-19:

LEANNE MARGRET SMITHIES

(first applicant)

NEIL SMITHIES

(second applicant)

v

ALISON JILL LOWE

(first respondent)

NATHAN EDWARD LOWE
(second respondent)

In NDR129-19:

RITA DANIELA BONOMO

(first applicant)

ANTONINO BONOMO

(second applicant)

v

ALISON JILL LOWE

(first respondent)

NATHAN EDWARD LOWE

(second respondent)

APPLICATION NO/S:

NDR116-19; NDR129-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 November 2020

HEARING DATE:

12 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:
In NDR116-19:

1.   The respondents shall prune the Liquidambar tree and lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of those trees to 500 mm above the height of the dividing fence between the properties.

2.   The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondents.

3.   The work shall be completed within four (4) weeks from the date of this Order.

4.   Should that work not be completed within that time the applicants shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.

5.   Should the applicants be required to carry out the work in default of it being done by the respondents, a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicants (or their successors in title) shall be entitled to enter the respondents’ land to carry out the work subject to the applicants giving 14 days’ written notice of that intention to the respondents at the respondents’ last known address.

6.   The costs incurred by the applicants engaging a tree lopper and arborist to do the work in default of the respondents shall be recoverable from the respondents as a debt without further notice being required to be given.

7.   The respondents shall ensure a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the trees every 12 months after the trees are first pruned pursuant to Orders 1 to 3 above.

8.   The respondents and any tree lopper or arborist engaged by them to perform the work or subsequent pruning shall be entitled to enter the applicants’ land abovementioned subject to 24 hours’ notice being given of the work to be done.

9.   A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture.

10.   These orders shall remain in force and effect for a period of 10 years from the date hereof.

In NDR129-19:

1.   The respondents shall prune the lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of…

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 Smithies v Lowe

Details

AGLC: Smithies v Lowe [2020] QCAT 437
Case: [2020] QCAT 437
Decision Date: 10 November 2020

CaseChat Overview and Summary

In the matter of Smithies v Lowe, the applicants sought relief from the Local Court of New South Wales against their neighbours, the respondents, in relation to the maintenance and management of trees on the respondents’ property. The applicants claimed that the trees, specifically a Liquidambar tree and lemon scented myrtle trees, were unreasonably interfering with their use and enjoyment of their land. The primary issues for the court were whether the trees constituted a reasonable use of the land and if the leaf litter and tree debris amounted to an unreasonable interference with the applicants’ property.

The court found that the trees were reasonably used by the respondents, but the height of the Liquidambar tree and the lemon scented myrtle trees was excessive. The Liquidambar tree, which was originally shorter than the myrtle trees, had grown substantially higher, blocking the applicants’ view and reducing the amount of sunlight on their property. The court held that the loss of sunlight and the view amounted to a substantial, ongoing, and unreasonable interference with the applicants’ use and enjoyment of their land. The court rejected the respondents' argument that the lower pruning height recommended by one arborist was not supported by a basis actionable under the legislation. The court concluded that the recommended pruning height was necessary to mitigate the unreasonable interference with the applicants’ property.

The court ordered the respondents to prune the trees to a specified height and to maintain this height through regular pruning. The orders also provided for the applicants to perform the work if the respondents failed to do so, with the associated costs to be borne by the respondents. The court further stipulated that suitably qualified personnel should perform the pruning work, with the necessary qualifications and insurance requirements clearly defined. These orders are to remain in effect for a period of 10 years from the date of the orders.

Orders

Orders of the court

In NDR116-19:

1. The respondents shall prune the Liquidambar tree and lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of those trees to 500 mm above the height of the dividing fence between the properties.

2. The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondents.

3. The work shall be completed within four (4) weeks from the date of this Order.

4. Should that work not be completed within that time the applicants shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist.

5. Should the applicants be required to carry out the work in default of it being done by the respondents, a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicants (or their successors in title) shall be entitled to enter the respondents’ land to carry out the work subject to the applicants giving 14 days’ written notice of that intention to the respondents at the respondents’ last known address.

6. The costs incurred by the applicants engaging a tree lopper and arborist to do the work in default of the respondents shall be recoverable from the respondents as a debt without further notice being required to be given.

7. The respondents shall ensure a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the trees every 12 months after the trees are first pruned pursuant to Orders 1 to 3 above.

8. The respondents and any tree lopper or arborist engaged by them to perform the work or subsequent pruning shall be entitled to enter the applicants’ land abovementioned subject to 24 hours’ notice being given of the work to be done.

9. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture.

10. These orders shall remain in force and effect for a period of 10 years from the date hereof.

In NDR129-19:

1. The respondents shall prune the lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of those trees to 700 mm above the height of the dividing fence between the properties.

2. The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondents.

3. The work shall be completed within four (4) weeks from the date of this Order.

9. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture.

10. These orders shall remain in force and effect for a period of 10 years from the date hereof.

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.

CITATION:	Smithies & Anor v Lowe & Anor [2020] QCAT 437
PARTIES:	In NDR116-19:
LEANNE MARGRET SMITHIES
(first applicant)
NEIL SMITHIES (second applicant)
v
ALISON JILL LOWE
(first respondent)
NATHAN EDWARD LOWE (second respondent) In NDR129-19: RITA DANIELA BONOMO (first applicant) ANTONINO BONOMO (second applicant) v ALISON JILL LOWE (first respondent) NATHAN EDWARD LOWE (second respondent)
APPLICATION NO/S:	NDR116-19; NDR129-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	10 November 2020
HEARING DATE:	12 October 2020
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	In NDR116-19: 1. The respondents shall prune the Liquidambar tree and lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of those trees to 500 mm above the height of the dividing fence between the properties. 2. The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist at the cost of the respondents. 3. The work shall be completed within four (4) weeks from the date of this Order. 4. Should that work not be completed within that time the applicants shall be entitled to have the work performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist. 5. Should the applicants be required to carry out the work in default of it being done by the respondents, a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist engaged by the applicants (or their successors in title) shall be entitled to enter the respondents’ land to carry out the work subject to the applicants giving 14 days’ written notice of that intention to the respondents at the respondents’ last known address. 6. The costs incurred by the applicants engaging a tree lopper and arborist to do the work in default of the respondents shall be recoverable from the respondents as a debt without further notice being required to be given. 7. The respondents shall ensure a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist attends and prunes the trees every 12 months after the trees are first pruned pursuant to Orders 1 to 3 above. 8. The respondents and any tree lopper or arborist engaged by them to perform the work or subsequent pruning shall be entitled to enter the applicants’ land abovementioned subject to 24 hours’ notice being given of the work to be done. 9. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture. 10. These orders shall remain in force and effect for a period of 10 years from the date hereof. In NDR129-19: 1. The respondents shall prune the lemon scented myrtle trees adjacent to the dividing fence of the applicants’ property growing on the respondent tree keepers’ land by reducing the height of…