1. Mr Jorgen Thomsen, the registered owner of the lot at 14A Lucas Street Scarborough will arrange for the removal of the Ficus benjamina the subject of this dispute at his own cost.
2. The removal of the Ficus benjamina is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.
3. Mrs Victoria White, the registered owner of the lot at 199B Scarborough Road Scarborough and the Tree-Keeper, will give access to the arborist engaged by Mr Thomsen to carry out the removal of the Ficus benjamina.
4. Mr Thomsen will give Mrs White not less than 14 days notice in writing of the arborist’s intention to attend and remove the Ficus benjamina. Mrs White will not unreasonably refuse access.
5. The removal of the Ficus benjamina is to be carried out within 90 days of the date of this order.
CATCHWORDS:
TREE DISPUTE – where pre-existing tree – where neighbour’s house built close to rear alignment – where tree litter present – where bat droppings present – where surface roots present – where roots may interfere with drainage – where tree blocks access to sunlight – whether tree causing serious damage – whether causing substantial, ongoing and unreasonable interference – appropriate order – whether pre-existence of tree affects the tribunal’s decision
Mrs White has a weeping fig in her backyard. An arborist appointed by the tribunal reports that the tree is approximately 40 to 50 years old, about 15 metres high and 24 metres wide.
Mr Thomsen lives next door. He wants the tree removed. He has also claimed compensation for damage caused by the tree.
The canopy of the tree overhangs Mr Thomsen’s property. The roots of the tree are visible on the surface of his land. It is clear that his land is affected[1] by the tree. The tribunal can make an order about a tree to remedy, restrain or prevent serious damage to Mr Thomsen’s land or any property on his land or to remedy, restrain or prevent substantial ongoing and unreasonable interference with Mr Thomsen’s use and enjoyment of his land[2]. If I decided that the tree interfering with Mr Thomsen’s land in this way, I must decide what should be…
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
AGLC
Thomsen v White [2012] QCAT 381
Case
[2012] QCAT 381
Decision Date
CaseChat Overview and Summary
In the matter of Thomsen v White, the dispute centred on a Ficus benjamina tree on Mr Thomsen's property, which Mrs White alleged was causing serious damage. The tree, which predated the construction of Mrs White's house, was situated close to the rear boundary line between the two properties. Mrs White claimed that the tree's litter, bat droppings, and surface roots were detrimental to her property, potentially interfering with drainage and obstructing sunlight. Furthermore, she asserted that the roots of the tree might interfere with her drainage system, leading to substantial, ongoing, and unreasonable interference with her enjoyment of her land.
The primary legal issues that the court needed to address were whether the tree was causing serious damage, substantial, ongoing, and unreasonable interference, and how the pre-existence of the tree should factor into the decision. The court had to balance the property rights of both parties and determine the appropriate remedy to resolve the dispute.
In arriving at its decision, the court considered the impact of the tree on Mrs White's property and the rights of Mr Thomsen as the tree's owner. The court found that the tree was indeed causing substantial, ongoing, and unreasonable interference with Mrs White's use and enjoyment of her property. Given the pre-existence of the tree, the court ruled that Mr Thomsen was required to arrange for the tree's removal at his own expense. The court mandated that the removal be carried out by a qualified arborist and stipulated specific timelines and access arrangements for the removal process.
The final orders of the court required Mr Thomsen to remove the tree within 90 days, with Mrs White providing necessary access and not unreasonably refusing entry. Mr Thomsen was also to notify Mrs White in writing at least 14 days before the removal.
Orders
Orders of the court
1. Mr Jorgen Thomsen, the registered owner of the lot at 14A Lucas Street Scarborough will arrange for the removal of the Ficus benjamina the subject of this dispute at his own cost.
2. The removal of the Ficus benjamina is to be completed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3.
3. Mrs Victoria White, the registered owner of the lot at 199B Scarborough Road Scarborough and the Tree-Keeper, will give access to the arborist engaged by Mr Thomsen to carry out the removal of the Ficus benjamina.
4. Mr Thomsen will give Mrs White not less than 14 days notice in writing of the arborist’s intention to attend and remove the Ficus benjamina. Mrs White will not unreasonably refuse access.
5. The removal of the Ficus benjamina is to be carried out within 90 days of the date of this order.