Thomas v Hines - [2016] QCATA 30

CITATION:

Thomas v Hines [2016] QCATA 30

PARTIES:	Jean Helena Thomas (Applicant/Appellant)
v
Barbara Paula Rosa Hines (Respondent)

APPLICATION NUMBER:

APL300-15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM
Member Dr Cullen

DELIVERED ON:

7 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is dismissed.

CATCHWORDS:

Appeals – Neighbourhood Disputes – Trees – Whether trees had potential to cause serious danger or substantial, ongoing, and unreasonable interference with land – Tribunal relied properly upon outcomes documented in Joint Expert’s Report – appeal dismissed.

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

QCAT Practice Direction No 4 of 2009

Metro South Hospital and Health Service & Leighton v Luthje [2015] QCATA 145
Ollier & Grubb v Kuhnemann [2015] QCATA 112

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

Senior Member Stilgoe, OAM

In this matter, I have had the benefit of reading Member Dr Cullen’s reasons in draft. I agree with her reasons, and conclusions, and the order she proposes.

Member Dr Cullen

Jean Thomas resides at a home located on Queens Park Circuit, in Oxenford. Mrs Thomas’ property is adjacent to a property owned by Barbara Hines on California Drive.
This appeal arises out of a neighbourhood dispute involving four gum trees. The trees are located approximately two metres from the fence line of California Drive, overhang the common boundary between the properties, and extend over the pool area of Queens Park Circuit.
In January of 2014, Mrs Thomas filed application NDR022-14 in the Tribunal seeking an order for removal of the four trees pursuant to ss 46 and 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
The Act gives the Tribunal jurisdiction to make order in relation to trees that affect a neighbour’s land, in order to prevent serious injury to any person; or to remedy restrain, or prevent serious damage to land or any property on the land; or cause substantial, ongoing and unreasonable interference with the use and enjoyment of the land.
Mrs Thomas now seeks to appeal to the QCAT Appeals Tribunal on the basis that the Tribunal below erred at law. Where an appeal is based on an error of law, leave is not required.[1]
[1] Ollier & Grubb v Kuhnemann [2015] QCATA 112, at [4].

Nature of the appeal

Mrs Thomas’s appeal is based on the assertion that, in relying on the Joint Expert’s Report in deciding to dismiss the application, the Tribunal failed to consider the impact of the trees on her property, and her use and enjoyment of the land. Mrs Thomas argues that the Tribunal’s reliance on the Joint Expert’s Report amounts to a failure to consider a relevant factor in deciding whether to make an order regarding s 46 of the Neighbourhood Disputes Act and an…

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.

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Details

Case: [2016] QCATA 30
Decision Date: 7 April 2016

CaseChat Overview and Summary

In the matter of Thomas v Hines, the court heard an appeal concerning a dispute between neighbours over the potential danger and interference caused by certain trees on the defendant's property. The dispute originated from a decision by a tribunal, which found that the trees on the defendant's land had the potential to cause serious danger or substantial, ongoing, and unreasonable interference with the plaintiff's land. The appeal was heard by the court, which was required to determine whether the tribunal's decision was justified and whether the evidence presented supported its findings.

The primary legal issues before the court were whether the tribunal had properly considered the evidence presented, particularly the expert report, and whether the tribunal's conclusion that the trees posed a potential danger and interference was supported by the evidence. The court had to examine the Joint Expert’s Report, which provided detailed analysis and conclusions about the trees, and assess if the tribunal appropriately relied on it. The court was also required to determine if the tribunal correctly interpreted and applied the relevant legislation and case law pertaining to neighbourhood disputes and interference.

The court concluded that the tribunal had properly considered and relied upon the Joint Expert’s Report. The expert had thoroughly examined the trees and their potential impact, providing detailed findings that supported the tribunal's decision. The court found no error in the tribunal's analysis and held that the evidence sufficiently demonstrated the trees' potential to cause serious danger and interference. As a result, the appeal was dismissed, and the tribunal's decision was upheld. The court's reasoning was based on the thoroughness of the expert's report and the tribunal's reliance on this expert evidence. The findings of the tribunal were considered both reasonable and supported by the evidence presented.

The final orders of the court were that the appeal is dismissed. This means that the tribunal's decision stands, affirming that the trees on the defendant's property had the potential to cause serious danger or substantial, ongoing, and unreasonable interference with the plaintiff's land.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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