Street v Smith

[2018] QCAT 193

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Street v Smith & Anor [2018] QCAT 193

PARTIES:

PETER ANGUS STREET
(applicant)

v

GRANT SMITH

(first respondent)

KAREN RODGERS

(second respondent)

APPLICATION NO/S:

NDR069-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

29 June 2018

HEARING DATE:

1 June 2018

HEARD AT:

Maroochydore

DECISION OF:

Member Deane

ORDERS:

The Application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –

DISPUTES BETWEEN NEIGHBOURS – whether the neighbour made a reasonable effort to reach agreement with the tree-keeper to give rise to a power to make an order – whether trees caused serious damage to the neighbours’ land or property or likely to cause damage – whether tree causing substantial, ongoing and unreasonable interference – whether the interference that is an obstruction of sunlight is severe – whether the trees ought to be trimmed or removed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
Robertson v Darvas [2016] QCAT 136

Thomsen v White [2012] QCAT 381

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

Self-represented

REASONS FOR DECISION

1. Mr Street lives next door to Mr Smith and Ms Rodgers.

2. Mr Street commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act),[1] claiming that:

   [1]Exhibit 1.

   (a)

   the bamboo was likely to cause serious injury to a person within the next

   
   

   12 months because it was pushing the fence and a collapse would cause damage to property including his dwelling and any person walking next to his house;

   (b)the trees had caused in the past, and were now causing, serious damage to, his land or property on his land, as his gutters had to be removed because of the continual leaf debris;

   (c)the trees had caused in the past, and were now causing, substantial, ongoing and unreasonable interference with his use and enjoyment of his land as:

   (i)       there is limited light available to the east side of his house, including bedrooms and verandah;

   (ii)      the leaf debris caused continual clogging of his gutters, which had destroyed his gutters requiring their removal;

   (iii)     the leaf debris affected his gardens;

   (iv)     the tree(s) affected solar production by shading; and

   (v)      the interference is causing an obstruction of sunlight and breeze.        

3. He sought an order that Mr Smith and Ms Rodgers remove the trees. The Application identified two bamboo trees, both in excess of 10 metres tall, palms, and another unspecified tree.

4. Mr Inman, a tree assessor, provided a report about the trees the subject of the dispute.[2]

   [2]Exhibit 6.

5. Since the proceedings commenced Mr Smith and Ms Rodgers undertook certain maintenance work to trees on their land both before and after Mr Inman’s report was made available to the parties.

6. During the hearing, Mr Street advised that he sought the following…