Wallace v Keg

[2012] QCAT 466

CITATION: Wallace v Keg [2012] QCAT 466

PARTIES:	Julanne Wallace
v
Lynne Keg

APPLICATION NUMBER: NDR030-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Maryborough

DECISION OF: Aaron Suthers, Member

DELIVERED ON: 18 September 2012

DELIVERED AT: Maryborough

ORDERS MADE:      1.   The Application is dismissed.

CATCHWORDS:

TREE DISPUTE – where tree litter falling into neighbouring property – where tree contained wholly in tree keepers land –whether causing substantial, ongoing and unreasonable interference – appropriate order

Neighbourhood Disputes Resolution Act 2011, ss 42, 46, 65, 66, 72, 73, 75
Trees (Disputes Between Neighbours) Act 2006 (NSW), s 7

Barker v Kyriakides [2007] NSWLEC 292
Thomsen v White [2012] QCAT 381

APPEARANCES and REPRESENTATION (if any):

This matter was scheduled for hearing on the 31st of August 2012 at Hervey Bay.

On that date the Respondent, Ms Keg, was unable to appear due to a recent bereavement.  Whilst she did not seek an adjournment, the Tribunal determined that it was appropriate for Ms Keg to have the opportunity to appear, if she wished, for an oral hearing.  The Tribunal determined that, in the absence of her making an application to do so, the matter would be determined upon the papers.

No such application was received and so this matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Ms Keg is a tree keeper as defined in the Neighbourhood Disputes Resolution Act 2011 (“the NDR Act”).

2. Ms Wallace is her neighbour.

3. The trees referred to in the application are a Moreton Bay ash (Corymbia tessellaris) and a stand of bamboo.  As at the date of hearing, neither the branches of the Moreton Bay ash nor any part of the bamboo overhang Ms Wallace's property.

4. Whilst in her application Ms Wallace raised concern about the potential for damage or injury from branches falling from the Moreton Bay ash, there is no evidence that there is any real risk of this.

5. Ms Wallace does complain that leaf litter and other debris from the Moreton Bay ash fall into her yard and, in particular, block her gutters and dirty her pool.  

6. She further complains that the bamboo, which was planted by Ms Keg close to the common boundary fence, and only noticed by her during the course of the proceedings, was likely to overhang the fence at a height of up to 4 meters, and cause further debris to fall into her yard and pool.

7. Before the matter was required to be decided, Ms Keg took steps to destroy the stand of bamboo, although it is clear from photographs produced to the Tribunal that roots remain which may reshoot if unmanaged.  Ms Wallace is of the view that whilst this remedial action is satisfactory, there is likely to be substantial ongoing and unreasonable interference with her use and enjoyment of the land caused by debris from the bamboo, if it is allowed…