Tighe v Schak - [2015] QCAT 387

CITATION:

Tighe v Schak & Anor [2015] QCAT 387

PARTIES:	Patricia Joan Tighe (Applicant)
v
David Carl Schak Cordia Ming-Yeuk Chu (Respondents)

APPLICATION NUMBER:

NDR235-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

5 August 2015

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

23 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for a Tree Order is dismissed.

CATCHWORDS:

TREE DISPUTE – Where large mature gum trees were growing on a riverside property – where the neighbour complained that the debris from the trees constituted an unreasonable, ongoing and unreasonable interference – where the trees were present before the neighbour bought her property – where the neighbour built a swimming pool with light-coloured surround tiles in the vicinity of the trees, and did not use a pool cover – where consent from the Brisbane City Council would be required to remove or interfere with the trees, and no consent had been sought or given – where the trees contributed to biodiversity and the local ecosystem – where the trees did not represent an unacceptable risk to health or safety - whether a Tree Order should be made

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 66(2), 73(1), 75(b), 75(d)

Edmonds v Yeates & Anor [2013] QCAT 7
Thomsen v White [2012] QCAT 381
Wallace v Keg [2012] QCAT 466

APPEARANCES:

APPLICANT:

Patricia Joan Tighe in person

RESPONDENTs:

Cordia Ming-Yeuk Chu in person

REASONS FOR DECISION

Ms Tighe owns a house at 375 Brisbane Corso, Yeronga, in Brisbane. It is a luxury house with a swimming pool, formal landscaped grounds, a private pontoon, and boulder retaining of the riverbank, on the Brisbane River.
Mr Schak and Professor Chu own the neighbouring house at 373 Brisbane Corso, Yeronga. They also have a desirable home on the river with a private pontoon, but they have a completely different style of landscaping. Their block has extensive natural vegetation over more than half the block, on the river side.
Ms Tighe filed an Application on 17 December 2012 seeking on Order that the trees be removed or pruned, and compensation. The basis of her application was that debris from the trees had caused serious damage and substantial, ongoing and unreasonable interference with her use and enjoyment of her land.
The claim for compensation in the amount of $22,173.89 was comprised of:[1]
a)    Costs of repairing the pool filtration system and Polaris pool cleaner totalling approximately $1,199.50 (GST inclusive);
b)    Installation of Leafguard and other measures to safe guard the gutters and valleys of the Applicant’s roof totalling approximately $13,618.00 (GST inclusive);
c)    Gardening costs to remove the debris from the trees totalling approximately $2,262.39 (GST inclusive);
d)    Costs of repairing damage caused by internal water penetration from leaves being blocked in the gutters totalling $5,094.00 (GST inclusive).
[1]Application 17 December 2012, Annexure A para 6.
The damage that was caused was described as including:[2]
a) Damage to the tiles surrounding the pool;
b) Continual blockage to the pool filtration…

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 Tighe v Schak

Details

AGLC: Tighe v Schak [2015] QCAT 387
Case: [2015] QCAT 387
Decision Date: 23 September 2015

CaseChat Overview and Summary

In the case of Tighe v Schak, the applicant, Mr. Tighe, sought a Tree Order under the Trees Act to remove or alter mature gum trees growing on his riverside property. The respondent, Ms. Schak, alleged that the trees caused an unreasonable interference due to the debris they shed, which affected her property, including her light-coloured pool tiles. The case was heard in the Queensland Civil and Administrative Tribunal. The central legal issues revolved around whether the trees constituted an unreasonable interference, considering their pre-existing condition and their contribution to biodiversity and the local ecosystem. Additionally, the court had to consider whether the trees posed an unacceptable risk to health or safety.

The Tribunal found that the trees were present before Ms. Schak bought her property, and there was no evidence that they posed an unacceptable risk to health or safety. The Tribunal also considered that the trees contributed positively to the local ecosystem and biodiversity. The Tribunal emphasised the lack of evidence showing that the trees were a direct cause of damage to Ms. Schak’s pool tiles, noting that the tiles were light-coloured and not covered, potentially exacerbating the issue. Furthermore, any action to remove or alter the trees would require consent from the Brisbane City Council, which had not been sought or granted. Given these factors, the Tribunal concluded that the interference caused by the trees was not unreasonable and dismissed the application for a Tree Order.

Orders

Orders of the court

1. The Application for a Tree Order is dismissed.

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.