Thomas and Thomas v Hines
[2017] QCAT 452
•6 December 2017
CITATION: | Thomas and Thomas v Hines [2017] QCAT 452 |
PARTIES: | Steven Thomas and Jean Thomas |
| v | |
| Barbara Paula Rosa Hines (Respondent) | |
APPLICATION NUMBER: | NDR115-17 |
MATTER TYPE: | Neighbourhood dispute matter |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | John Bertelsen |
DELIVERED ON: | 6 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent’s application to dismiss is refused. |
CATCHWORDS: | ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree maintenance issues not fully determined – necessity for maintenance regime to be put in place for pruning of trees – limited evidence of prior pruning PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where application to dismiss proceeding – where some issues still to be determined |
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
On 12 October 2017, Peter and Carola Hume as representatives of Barbara Hines, the respondent to an application for a tree dispute filed by Jean and Steven Thomas, sought the dismissal of that application for a tree dispute.
Here, there is a longwinded history. Jean and Steven Thomas (Mr and Mrs Thomas) reside at 25 Queens Park Circuit, Oxenford. They share a lengthy common boundary with Barbara Hines (Ms Hines) of 84 California Drive, Oxenford.
Located on Mr and Mrs Thomas’ land is a swimming pool constructed in 1992. On Ms Hines’ land, some five mature gum trees located two to three metres from the dividing fence.
In 2014, Mr and Mrs Thomas applied to the Tribunal for removal of the gum trees because they were a nuisance. Falling branches were dangerous, the pool was being fouled by birds and wildlife, paving was being damaged, overly onerous pool cleaning was required due to leaves and debris. In due course, a joint experts/arborists’ report was produced by order of the Tribunal. A number of matters were agreed upon in respect of the five-odd gum trees including.
a)There was minimal overhang onto Mr and Mrs Thomas’ property;
b)Minimal risk of trees falling or failing so as to cause injury to persons or damage to property;
c)The amount of leaf litter was not excessive given the location;
d)That the tree keeper (Ms Hines) regularly pruned the trees and that they were well-maintained;
e)The trees were appropriate to the area and that removal would not alleviate any perceived problems.
The experts further agreed then concluding that Ms Hines not feed birds in an area which would cause birds to roost in the subject trees. The joint report was crucial to the Tribunal dismissing Mr and Mrs Thomas’ application on 26 June 2015.
Mrs Thomas appealed that decision, asserting the Tribunal failed to consider the impact of the trees on her property and her use and enjoyment of the land; that only the “health of the trees” was considered to the exclusion of her safety, use and enjoyment of the land.
The Tribunal’s appeal decision acknowledged evidence below that the trees were pruned regularly; that birds were being fed at the front of Ms Hines’ property away from Mr and Mrs Thomas’ pool, thus mitigating tree and bird litter. There was confirmation of the experts determination that the leaf litter was not excessive and that pool maintenance, whilst demanding, was within normal range; that there was minimal risk of injury/damage to persons/property; crucially, that the trees were an acceptable distance from the boundary and that removal would not relieve any perceived problems.
The Appeal Tribunal concluded that the experts’ conclave/report was consistent with the Tribunal’s decision to dismiss the application and found that the member below did consider factors beyond the health of the trees only. The member below was entitled “to favour the outcomes documented in the experts’ report”. In short, there was no present danger or unreasonable interference occasioned by the trees.
On 8 September 2017, Mr and Mrs Thomas filed a further application for a tree dispute seeking pruning of branches and tree roots.
The application asserted Ms Hume (Ms Hines’ representative) was feeding birdlife in overhanging branches, fouling the pool paving, and food; that Ms Hines/Ms Hume had stated they would prune the trees regularly; that if they did so, they (Mr and Mrs Thomas) would not have had to reapply to the Tribunal. In seeking orders, Mr and Mrs Thomas stated they would like all overhanging branches cut back to the boundary line and removed.
In response, Mr and Mrs Hume, as Ms Hines’ representatives, said “the tree keeper regularly prunes the trees and that they are well-maintained”. In their application to dismiss filed 12 October 2017, they stated the “allegations contained here in this new application are almost identical to those contained in the original application”. They also stated “it was further accepted by the Tribunal that we had undertaken to regularly prune the trees as directed by our arborist” and that “pruning of the subject trees was undertaken in February 2017”.
A report from Chad Summers, Ms Hines’ arborist, dated 18 August 2017 has been produced to the Tribunal. In that report, he states “there is no specific regime for pruning eucalyptus trees that has been researched, developed or implemented as an Australian Standard … a further onsite assessment would be required to obtain current tree assessments and correct calculations”. These involved the tree protection zone and structural root zone.
Mr and Mrs Hume contended that in any event they have complied with their undertaking to prune the trees as directed by their/Ms Hines’ arborist; that the subject trees have been pruned in accordance with the undertaking previously provided to the Tribunal. That assertion is not fully supported by Chad Summers’ suggestion of a further onsite assessment which may well affect the extent of pruning required. It is now some ten months since some pruning was undertaken in February 2017.
It certainly seems to be the case that the extent of ongoing pruning may be the subject of dispute. This is so, particularly in the context of the original 2014 application simply being dismissed without any regime being put in place for regular, at interval assessment of necessity to prune. Pruning is a live issue.
Dismissal of an application prior to hearing requires absolute and compelling evidence that there is no triable issue. Although the issue or issues here may well now be restricted to one or two without the necessity to revisit other matters already effectively determined, there is enough uncertainty regarding ongoing arrangements such as to warrant a final hearing and perhaps more intensive or particularised orders for future management of the trees.
The principle of res judicata, i.e. in simple terms, one cannot come back to retry that which has already been determined, requires that all issues the subject of this application have been fully determined in the prior decision. It is not sufficient that the bulk or most of what may be applied for here has previously been determined because that leaves some issues raised which may necessitate legitimate determination. That is the case here.
For the above reasons, the respondent’s application to dismiss is refused.
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