Thomsen v White

[2013] QCATA 37

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)
Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b)

Dearman v Dearman (1908) 7 CLR 549 at 561, cited
Fox v Percy (2003) 214 CLR 118 at 125-126, 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. In further evidence to QCAT, Mr Thomsen stated that the roots in his yard were a…