Thomsen v White
[2013] QCATA 37
•19 February 2013
| CITATION: | Thomsen v White [2013] QCATA 37 |
| PARTIES: | Jorgen Thomsen (Applicant/Appellant) |
| v | |
| Victoria White (Respondent) |
| APPLICATION NUMBER: | APL316-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Clare Endicott, Senior Member David Pararz, Member |
| DELIVERED ON: | 19 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – where findings of fact challenged – whether exercise of discretion miscarried Neighbourhood Disputes Resolution Act 2011 ss 74, 75, 66(2), 66(5)(a), 66(5)(e) Dearman v Dearman (1908) 7 CLR 549 at 561, cited House v R (1936) 5 CLR 499, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Mr Thomsen and Mrs White are neighbours. There is a weeping fig tree (Ficus benjamina) in Mrs White’s backyard. The tree is about 15 metres high and 24 metres wide. The canopy of the tree overhangs Mr Thomsen’s property and roots from the tree are visible on the surface of his land.
Mr Thomsen applied to QCAT under the Neighbourhood Disputes Resolution Act 2011 for an order that Mrs White remove branches from the tree and remove the roots from his land. Mr Thomsen also applied for an order that Mrs White pay for the costs of carrying out that work and he also sought compensation of $3,900.00 for damage caused to his land and property.
Mr Thomsen contended in his application that he could not use his back yard, loose branches could fall and cause injury, sunlight was being impeded from his windows and bat droppings were everywhere including in his water tank. He contended that the roots from the tree would eventually push over his wall and affect his foundations.
The claim was opposed by Mrs White. She contended that Mr Thomsen should be responsible for disposing of overhanging branches but she opposed any removal of roots on the basis that the tree would become unstable.
An arborist provided a report to QCAT that confirmed that the tree covered the entire width of Mr Thomsen’s property and that the canopy extends eight metres into Mr Thomsen’s property. Mr Thomsen’s house is six metres from the rear boundary of the property and a rear deck is only three metres from the boundary. The report stated that the tree blocks all sunlight to the rear of Mr Thomsen’s house, a large amount of leaf material falls into his property which affects the enjoyment of some areas of his property, seedlings are growing in his gutters, structural roots extend four metres into Mr Thomsen’s yard with multiple small roots present throughout his backyard. The report confirmed the presence of bat droppings on Mr Thomsen’s property.
In further evidence to QCAT, Mr Thomsen stated that the roots in his yard were a trip hazard, prevent him from effective use of this area of his property and were a risk in relation to intrusion into his drainage pipes. The arborist was of the opinion that it was highly probable that there would be root invasion into the drainage pipes over time.
QCAT made an order that Mr Thomsen arrange for the removal of the tree at his own cost. Mr Thomsen has sought leave to appeal against that order. He was successful in obtaining a stay of the order pending the outcome of his application for leave to appeal.
In his application for leave to appeal and appeal, Mr Thomsen argues that the Member erred in ordering the removal of the tree and that the evidence supported that the tree canopy should be pruned on a yearly basis and a root barrier be installed. As the appeal is based on an alleged error of fact and law made by the Member, leave to appeal is required under section 142(3)(b) of the QCAT Act.
The Member noted that the Neighbourhood Disputes Resolution Act 2011 required a person to establish serious damage or a substantial, ongoing and unreasonable interference before an order would be made by QCAT. The Member was satisfied that the evidence provided to the Tribunal established that an order was necessary to prevent roots from the tree causing serious damage to the drainage pipes on Mr Thomsen’s property. The Member was also satisfied that the tree is causing a severe obstruction to sunlight to Mr Thomsen’s house and roof which constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of his land. Additionally the Member found that the presence of structural roots was a trip hazard which renders that part of Mr Thomsen’s land dangerous and unusable without major works carried out.
It would appear from his written submissions to the Appeal Tribunal that those particular findings are not challenged by Mr Thomsen. Rather he seeks to challenge the conclusion made by the Member as to what would be the appropriate response to the serious damage and interference to his enjoyment of his property caused by the tree. In his submissions to the Appeal Tribunal, Mr Thomsen states at paragraph [20] that he does not ask for the tree to be removed but at paragraph [27] of his submissions he states that he agrees that the tree should be removed but he wants Mrs White to bear the cost of the removal.
It appears that Mr Thomsen challenges the finding that removal of the tree is the appropriate outcome but if his challenge is not successful on that point, he also seeks to challenge the order that he pay the costs of the removal.
The Member considered the evidence from the arborist that the problems can be addressed by the installation of a root barrier and by the reduction of the tree canopy. She rejected the effectiveness of that proposed solution as there would need to be yearly inspections and would entail expensive and invasive work. She also noted and accepted the evidence of the arborist that any action to address the structural roots would almost certainly affect the health and integrity of the tree. She rejected the arborist’s proposal that reducing the canopy would effectively address the problem of sunlight obstruction when the tree would continue to grow over Mr Thomsen’s roofline.
The Member, after considering all of the evidence, concluded that she could not find any option other than to order the removal of the tree. She acknowledged the statutory requirement that QCAT should not make an order to remove a living tree unless the issue relating to the tree cannot other wise be satisfactorily resolved.
The Member then went on to consider who should be responsible for the costs of removing the tree. The Member took into account evidence that the tree was in place before Mr Thomsen built his house well back on the block while leaving a large front yard area. The Member was satisfied that Mr Thomsen had deliberately placed his house close to the tree when other options were available to him. Assisted by an authority from the Land and Environment Court in New South Wales about tree cases, the Member determined that considerations about the placement of the house came within the factors in sections 74 and 75 of the Neighbourhood Disputes Resolution Act 2011 that were relevant to the orders to be made.
Mr Thomsen argues that the Member was in error in taking this consideration into account as he contends that the positioning of his house should have nothing to do with the issue of the tree.
When considering whether or not to grant leave to appeal, an appeals tribunal will not undertake what amounts to a re-hearing of the case to substitute their findings on the evidence in place of what the original hearing Member had found. The role of the Appeals Tribunal is to determine whether there has been some demonstrated error on the part of the original decision maker.
Leave to appeal will ordinarily only be granted where there is some question of general importance on which further argument, and a decision of an appeals tribunal, would be to the public advantage; or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. In other words, is leave necessary to correct a substantial injustice to the applicant caused by some error?
The question is whether the findings made by the Member reveal a relevant error which gives rise to the need to correct a substantial injustice in this case. We are not persuaded that there was any such error or that there was any injustice in the outcome reached by the Member. The findings of fact about the presence of roots and obstruction of sunlight by the tree were based on evidence clearly before the Member and on inferences that could properly be drawn from that evidence.
The Member rejected the opinion of the arborist that reducing the canopy of the tree and installing a root barrier would be a satisfactory response to the damage and ongoing interference caused by the tree. The Member provided a logical basis derived from the evidence for the rejection of that opinion.
In his original application filed on 14 December 2011, Mr Thomsen checked the boxes at question 39 that he wanted the Tribunal to make an order that Mrs White carry out work on the tree to remove or prune the branches of the tree, and to remove or prune the roots of the tree. He did not check the box “to remove the tree”.
The Member has made an order other than the specific order that Mr Thomsen originally sought. The basic order that Mr Thomsen was seeking was for work to be carried out on the tree. Section 66(2) of the Neighbourhood Disputes Resolution Act 2011 provides that “QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land”. Such an order may include an order for removal of a tree under section 66(5)(a). It was therefore open to the Member to make the order for removal, notwithstanding that this was not the specific order originally sought.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, on which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any interferences underlining it.[1] We are satisfied that the finding made by the Member that the tree should be removed arose from evidence capable of supporting that conclusion. That finding would not be disturbed on appeal as it cannot be shown that there has been any mistake by the Member in assessing the factual evidence.
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-26.
The Member ordered that Mr Thomsen pay the costs of removal of the tree. Section 66(5)(e) of the Neighbourhood Disputes Resolution Act 2011 authorises QCAT to make an order to require the neighbour to pay the costs associated with carrying out a order under the section. It was therefore open to the Member to make this order.
The conclusion reached by the Member that the costs of the tree removal should be borne by Mr Thomsen arose from an exercise of discretion by the Member. The factors that were taken into account when exercising that discretion are set out clearly in the reasons.
The Member said at paragraph [24] of her reasons that she understood Mrs White’s point of view that the tree would not pose a problem if Mr Thomsen had not built his house to the rear of the block, but had conformed to the usual six metre setback from the front alignment.
The Member found that Mr Thomsen had deliberately placed his house close to the tree when other options were available to him.[2] It was in the context of this finding that the Member determined that it was appropriate that Mr Thomsen should bear the costs of the removal and that Mrs White should not have to bear that burden.
[2] At paragraph 25 of her reasons.
Contrary to what has been argued by Mr Thomsen, there was no wrong principle applied by the Member and no extraneous or irrelevant matter relied on by the Member in considering who should bear the costs of removal.
The factors taken into account by the Member as to the positioning of Mr Thomsen’s house were capable of being part of the considerations arising from sections 74 and 75 of the Neighbourhood Disputes Resolution Act 2011. The Appeals Tribunal will not exercise its own discretion in substitution for the original decision in the absence of some established reason for doing so.[3] There is no such reason in this case.
[3] House v R (1936) 5 CLR 499.
There is no question of general importance on which further argument, and a decision of an Appeals Tribunal, would be to the public advantage in this case.
Leave to appeal is refused.
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