Thorley v McGee - [2024] QCAT 595

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thorley v McGee and Anor [2024] QCAT 595

PARTIES:

HERBERT THORLEY

(applicant)

v

WAYNE MCGEE

(respondent)

KERRY BOYLE

(respondent)

APPLICATION NO/S:

NDR087-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.     Wayne McGee and Kerry Boyle, at their cost, must remove or prune branches of the mock orange hedge:

(a)     so that no tree is taller than 3.3 metres;

(b)     so that no branches of any tree extend past the common boundary,

by 4:00pm on 31 October 2024.

2.     Wayne McGee and Kerry Boyle, at their cost, must undertake ongoing maintenance at least annually so that the trees forming the mock orange hedge are maintained at a height of not more than 3.3 metres and so that no branches of any tree extend past the common boundary. The initial maintenance will occur not later than 31 October 2025, if required.

3.     If required, Herbert Thorley must allow Wayne McGee and Kerry Boyle’s elected arborist or contractor with appropriate insurances access to his land to undertake the work set out in order no 1 and 2, subject to the giving of three (3) days’ written notice of that intention to Herbert Thorley or as agreed between the parties.

4.     If Wayne McGee and Kerry Boyle fail to comply with order no 1 or 2, then:

(a)     Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to obtain a quote to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of formulating the quote subject to the giving of three (3) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(b)     Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of carrying out such work subject to the giving of fourteen (14) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(c)     If Wayne Mc Gee and Kerry Boyle undertake all of the outstanding work set out in order no 1 or 2 prior to the fourteen (14) days written notice period expiring, Herbert Thorley’s entitlement to engage an arborist to perform the works and enter Wayne McGee and Kerry Boyle’s land is extinguished;

(d)     The cost incurred by Herbert Thorley in engaging an arborist to undertake any works in…

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 Thorley v McGee

Details

AGLC: Thorley v McGee [2024] QCAT 595
Case: [2024] QCAT 595
Decision Date: 26 August 2024

CaseChat Overview and Summary

The case of Thorley v McGee involved a dispute between neighbours over the maintenance and management of trees on the property boundary. The matter was brought before the court to resolve issues relating to the height and extent of a mock orange hedge, which was deemed to cause interference with the plaintiff’s use and enjoyment of their land. The plaintiff, Herbert Thorley, argued that the hedge, maintained by the defendants Wayne McGee and Kerry Boyle, caused serious obstruction of views, sunlight, and ventilation, as well as potential hazards due to overhanging branches. The court was tasked with determining whether the hedge constituted a nuisance and what measures should be taken to address any issues caused by it.

The primary legal issues before the court were whether the hedge constituted a nuisance under the relevant statutes and regulations, and if so, what the appropriate remedy would be. The court had to consider whether the hedge caused or would cause serious injury, damage, or unreasonable interference as per the relevant legislation. This involved assessing the evidence presented by both parties regarding the impact of the hedge on the plaintiff’s property and quality of life. Additionally, the court needed to determine the reasonable steps to mitigate any nuisance, including specific requirements for pruning and maintenance.

In its decision, the court found that the hedge did indeed cause unreasonable interference with the plaintiff’s use and enjoyment of their land. The hedge’s height and the overhanging branches were identified as primary concerns. The court ordered the defendants to prune the hedge to ensure that no tree exceeded a height of 3.3 metres and that no branches extended past the common boundary. Furthermore, the defendants were required to undertake ongoing annual maintenance to keep the hedge within these parameters. Should the defendants fail to comply with these orders, the plaintiff was entitled to engage an arborist to perform the necessary work and recover the costs from the defendants. The court also outlined a detailed process for handling any applications for costs related to the proceedings, specifying deadlines for submissions and evidence.

The final orders mandated that the hedge be pruned and maintained to specific standards, provided a framework for resolving disputes over access and costs, and detailed the process for any applications for costs. These measures aimed to ensure that the hedge did not continue to cause a nuisance while providing a clear path for resolving any future issues.

Orders

Orders of the court

1. Wayne McGee and Kerry Boyle, at their cost, must remove or prune branches of the mock orange hedge:

(a) so that no tree is taller than 3.3 metres;

(b) so that no branches of any tree extend past the common boundary,

by 4:00pm on 31 October 2024.

2. Wayne McGee and Kerry Boyle, at their cost, must undertake ongoing maintenance at least annually so that the trees forming the mock orange hedge are maintained at a height of not more than 3.3 metres and so that no branches of any tree extend past the common boundary. The initial maintenance will occur not later than 31 October 2025, if required.

3. If required, Herbert Thorley must allow Wayne McGee and Kerry Boyle’s elected arborist or contractor with appropriate insurances access to his land to undertake the work set out in order no 1 and 2, subject to the giving of three (3) days’ written notice of that intention to Herbert Thorley or as agreed between the parties.

4. If Wayne McGee and Kerry Boyle fail to comply with order no 1 or 2, then:

(a) Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to obtain a quote to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of formulating the quote subject to the giving of three (3) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(b) Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of carrying out such work subject to the giving of fourteen (14) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(c) If Wayne Mc Gee and Kerry Boyle undertake all of the outstanding work set out in order no 1 or 2 prior to the fourteen (14) days written notice period expiring, Herbert Thorley’s entitlement to engage an arborist to perform the works and enter Wayne McGee and Kerry Boyle’s land is extinguished;

(d) The cost incurred by Herbert Thorley in engaging an arborist to undertake any works in accordance with these orders in default of Wayne McGee and Kerry Boyle shall be recoverable from Wayne McGee and Kerry Boyle as a debt without further notice being required to be given.

5. Any Application for costs of the proceedings by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs, by 4:00pm on 27 September 2024.

6. If any such Application for costs is made:

(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs, by 4:00pm on 25 October 2024;

(b) the party making the Application for costs may file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party, by 4:00pm on 8 November 2024;

(c) the Application for costs will be determined on the papers based on any documents filed unless a party requests an oral hearing not before 4:00pm on 8 November 2024.

7. If no Application for costs is made in accordance with Order 5 then there shall be no order as to costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.