Wallace v Keg

Case [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…

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Wallace v Keg [2012] QCAT466
Case
[2012] QCAT 466
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant, Wallace, and the respondent, Keg. Wallace sought an injunction and damages, alleging that Keg's tree was causing substantial, ongoing, and unreasonable interference with his property. The tree in question was located entirely on Keg's land, but tree litter was falling into Wallace's property. The court had to determine whether this constituted a sufficient interference to warrant an injunction or damages. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the tree litter falling from Keg's tree into Wallace's property constituted substantial, ongoing, and unreasonable interference. The court considered the extent of the interference, the balance of convenience, and whether an injunction would be an appropriate remedy. In considering these factors, the court examined the nature of the interference and the measures that could be taken to mitigate it. The court also had to consider whether an injunction would be a disproportionate response to the interference caused by the tree litter.

The court found that the interference caused by the tree litter was not substantial, ongoing, and unreasonable enough to warrant an injunction or damages. The court noted that the interference was limited to tree litter falling into Wallace's property, and that Keg had taken steps to mitigate the issue by regularly cleaning up the litter. The court also found that an injunction would be a disproportionate response to the interference caused by the tree litter. The court held that an injunction would effectively result in the removal of the tree, which was not necessary to address the interference caused by the tree litter. The court also noted that the balance of convenience favoured Keg, as an injunction would cause significant inconvenience to him.

The application was dismissed, and no orders were made in favour of Wallace. The court found that the interference caused by the tree litter was not substantial, ongoing, and unreasonable enough to warrant an injunction or damages, and that an injunction would be a disproportionate response to the issue. The court also found that the balance of convenience favoured Keg, as an injunction would cause significant inconvenience to him.

Orders

Orders of the court

1. The Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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