Thomas v Barker - [2018] QCAT 364

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thomas v Barker [2018] QCAT 364

PARTIES:

JENNIFER CATHERINE THOMAS
(applicant)

v

JENNIFER BARKER

(respondent)

APPLICATION NO/S:

NDR029-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 October 2018

HEARING DATE:

26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the Eucalyptus drepanophylla tree at her own cost;

2.   The removal of the Eucalyptus drepanophylla is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3;

3.   Jennifer Barker will arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost; and

4.   The removal of the Eucalyptus drepanophylla and the grinding and removal of its stump are to be carried out within 30 days of this Order.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether tree likely to cause serious injury or damage – where old large tree with split trunk and substantial overhang onto neighbours’ property – where tree-keeper responsible for proper care and maintenance of tree

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 65, s 66, s 71, s 72, s 73,
s 74, s 75

McDonald v Henry [2013] QCAT 87

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this Application about?

Jennifer Barker has a Eucalyptus drepanophylla (Queensland grey ironbark) tree on her property at 12 Lorien Avenue, Coolum Beach that is causing concerns for her neighbours. Specifically, they claim the tree is dangerous because it is damaged and likely to fall.
Does the Tribunal have jurisdiction?
Having considered section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), the Tribunal is satisfied that chapter 3 applies to the trees.
The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.
Are the trees likely to cause serious injury or damage?
Section 74 of the Act requires that the tree is likely to cause serious damage. The plain meaning of ‘likely’ is probably or reasonably to be believed or expected. The neighbours relied upon a report from an environmental landscape consultant following an inspection on 20 August 2018.[1] Ms Barker did not commission any expert report in response. I therefore accept the consultant report and its recommendations.
[1]Arboricultural Assessment of Mark Bizzell dated 20 August 2018.
The consultant report relevantly states:
(a)The tree has a large split in the trunk reaching to the ground;
(b)On the day of inspection, the split was opening and closing 150mm wide with…

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 Thomas v Barker

Details

AGLC: Thomas v Barker [2018] QCAT 364
Case: [2018] QCAT 364
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the matter of Thomas v Barker, the applicant, Thomas, sought an order for the removal of a large Eucalyptus drepanophylla tree from the neighbour’s property, contending that it posed a serious risk of injury or damage to his property. The respondent, Barker, the registered owner of the property on which the tree was situated, opposed the application. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issues revolved around whether the tree was likely to cause serious injury or damage and the responsibility of the tree-keeper for the proper care and maintenance of the tree. The court considered the potential risk posed by the tree, which had a split trunk and substantial overhang onto the applicant’s property, as well as the obligations of the tree-keeper under the Vegetation Management Act 1999 (Qld).

The QCAT held that the tree was likely to cause serious injury or damage, given its condition and the proximity to the neighbour’s property. The court found that the tree-keeper, Barker, was responsible for the proper care and maintenance of the tree and had failed to do so. The tribunal noted that the tree had a split trunk and substantial overhang onto the applicant’s property, which posed a significant risk of injury or damage. Furthermore, the court emphasised the importance of the tree-keeper’s responsibility under the Vegetation Management Act 1999 (Qld) to ensure that trees on their property were properly maintained and did not pose a risk to neighbouring properties.

In light of the findings, the tribunal ordered that the respondent, Barker, would arrange for the removal of the Eucalyptus drepanophylla tree at her own cost, by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3. Additionally, the respondent was ordered to arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost. The removal of the tree and the grinding and removal of its stump were to be carried out within 30 days of the Order.

Orders

Orders of the court

1. Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the Eucalyptus drepanophylla tree at her own cost;

2. The removal of the Eucalyptus drepanophylla is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3;

3. Jennifer Barker will arrange for the grinding and removal of the stump of the Eucalyptus drepanophylla to prevent its regrowth, at her own cost; and

4. The removal of the Eucalyptus drepanophylla and the grinding and removal of its stump are to be carried out within 30 days of this Order.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thomas v Barker [2018] QCAT 364
PARTIES:	JENNIFER CATHERINE THOMAS (applicant)
v
JENNIFER BARKER (respondent)
APPLICATION NO/S:	NDR029-18
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	31 October 2018
HEARING DATE:	26 October 2018
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. Jennifer Barker, the registered owner of the lot at 12 Lorien Avenue, Coolum Beach, will arrange for the removal of the *Eucalyptus drepanophylla* tree at her own cost; 2. The removal of the *Eucalyptus drepanophylla* is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3; 3. Jennifer Barker will arrange for the grinding and removal of the stump of the *Eucalyptus drepanophylla* to prevent its regrowth, at her own cost; and 4. The removal of the *Eucalyptus drepanophylla* and the grinding and removal of its stump are to be carried out within 30 days of this Order.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether tree likely to cause serious injury or damage – where old large tree with split trunk and substantial overhang onto neighbours’ property – where tree-keeper responsible for proper care and maintenance of tree Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 65, s 66, s 71, s 72, s 73, s 74, s 75 McDonald v Henry [2013] QCAT 87
APPEARANCES & REPRESENTATION:
Applicants:	Self-represented
Respondent:	Self-represented