Vanderdrift & Wray v Eisenmenger & Braithwaite - [2013] QCAT 583

CITATION:

Vanderdrift & Wray v Eisenmenger & Braithwaite [2013] QCAT 583

PARTIES:	Mrs Jeanette Vanderdrift Mr Kenneth William Wray (Applicants)
v
Mrs Gail Eisenmenger Mr Alan Braithwaite (Respondents)

APPLICATION NUMBER:

NDR157-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

30 May 2013

HEARD AT:

Brisbane

DECISION OF:

Fiona FitzPatrick, Member

DELIVERED ON:

30 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Eisenmenger Pty Ltd, the registered owner of 15 Pikett Street Clontarf, must arrange for the removal of the Tipuana Tipu, the Eucalyptus major and the tree stump which are the subject of this dispute, including the roots of each tree, at its own cost, (including the cost of removing and reinstating the dividing fence).

2. The trees are to be removed by an appropriately qualified and insured arborist with a minimum qualification of an Australian Qualifications Framework level 3, before 30 November 2013.

3. Eisenmenger Pty Ltd will install a two course besser block wall, to prevent sand encroaching on the dividing fence, before 30 November 2013.

CATCHWORDS:

TREE DISPUTE- whether trees should be removed; trees providing substantial shade to play area in a child care centre; loss of amenity; structural integrity of trees compromised by abatement work on tree canopies and root systems; one of the trees classed as a “pest or weed”; statutory obligation on Tribunal to make personal safety the primary consideration when resolving tree disputes; who should pay for works; who to pay for shade structure to replace the shade provided by the trees.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 46, 52, 61, 66, 71, 72, 73

Thomsen v White (2012) QCAT 381
Black v Johnson (No 2) 2007 NSWLEC 513

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mrs Jeanette Vanderdrift and Mr Kenneth William Wray were self represented

RESPONDENT:

Mrs Gail Eisenmenger and Mr Alan Braithwaite were self represented

REASONS FOR DECISION

The Braithwaites are the sole directors of Eisenmenger Pty Ltd which is the registered owner of land at 15 Pikett Street Clontarf. Mrs Eisenmenger now goes by the name of Mrs Braithwaite.
The trees which are the subject of this dispute had already been planted when the Braithwaites purchased the land. They established Beehive Kindy child care centre on the land prior to Mrs Vanderdrift and Mr Wray purchasing the vacant land next door in 2004.
After obtaining the necessary council approvals, Mrs Vanderdrift and Mr Wray built a home which is centred on their block, with a 1-2 metre set back from the side boundaries. The home takes up approximately 65-75% of the land footprint.
Mrs Vanderdrift and Mr Wray have asked the Tribunal to order the removal of three trees on the Braithwaites’ land. The first is a Tipuana (Tipuana Tipu) which is 18m high, with an average canopy spread of 18m. It is 200mm from the boundary fence at its closest point. The second is a Grey Gum (Eucalyptus major), which is 24m high with an average canopy spread of 12m, and situated 400mm…

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 Vanderdrift & Wray v Eisenmenger & Braithwaite

Details

AGLC: Vanderdrift & Wray v Eisenmenger & Braithwaite [2013] QCAT 583
Case: [2013] QCAT 583
Decision Date

CaseChat Overview and Summary

The applicants, Mrs Jeanette Vanderdrift and Mr Kenneth William Wray, sought the removal of three trees on the neighbouring property owned by Mrs Gail Eisenmenger and Mr Alan Braithwaite, who were the sole directors of Eisenmenger Pty Ltd. The trees, which were present when the Braithwaites purchased the land, were a Tipuana Tipu, a Grey Gum (Eucalyptus major), and a tree stump. These trees had caused damage to the applicants' property, including their home, path, and the dividing fence. The applicants sought orders for the removal of the trees, and for the Braithwaites to pay for the removal and for any damage caused. The Braithwaites initially resisted the removal of the trees because they provided essential shade for the play area of the child care centre they operated on the property. However, they later agreed to remove the trees on the condition that the applicants pay for the removal and for the installation of an artificial shade structure.

The legal issues before the Tribunal were whether the trees should be removed, who should bear the cost of removal and any resulting damage, and who should be responsible for the replacement shade structure. The Tribunal found that the trees should be removed on the basis of safety and property damage concerns, despite the shade they provided to the child care centre. The Tribunal held that the Braithwaites, as the tree keepers, were liable for the cost of removal, including the reinstatement of the dividing fence, but did not make an order regarding the replacement shade structure. The Tribunal also found that the sand against the dividing fence was not a matter it could order removed under the relevant legislation.

The Tribunal ordered that Eisenmenger Pty Ltd must arrange for the removal of the trees by an appropriately qualified arborist before 30 November 2013. The Braithwaites also agreed to install a two-course besser block wall to prevent sand from encroaching on the dividing fence before the same date. The Tribunal did not make an order regarding the replacement shade structure or the sand against the fence, leaving those matters for the parties to resolve.

Orders