Watson-Brown v Heaton - [2014] QCAT 346

CITATION:

Watson-Brown v Heaton & Anor [2014] QCAT 346

PARTIES:	Anthony Watson-Brown (Applicant)
v
Troy Grant Heaton Suzanne Gaye McGrane (Respondents)

APPLICATION NUMBER:

NDR136-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

17 April 2014

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

8 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Prune the golden cane palm located closest to the south-east corner of the dwelling, remove multiple stems, and provide a 400 millimetre clearance from the boundary fence structure; and

2. Remove the two golden cane palms located within the timber decking surface, referenced as G4 (red arrow, diagram 1 in Mr Sowden’s report).

3. The work Ordered in paragraphs 1 and 2 above is to be performed in accordance with the following:

a. All tree debris to be removed from the applicant’s / tree keeper’s property after the recommended pruning and maintenance is performed.

b. All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 “Pruning of amenity trees”.

c. Climbing spurs / climbing gaffs / climbing irons shall not be used during pruning works.

d. All works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.

e. The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.

CATCHWORDS:

NEIGHBOURHOOD TREE DISPUTE – extent of works already performed by tree keepers – what is a “view” – decision that the sky is not a view in circumstances of application.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 66(2)(b) and (3)

Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247

King v Samios [2014] QCAT 165
Calvisi v Brisbane City Council (2008) 1 PDQR 374 at 381-382

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Anthony Watson-Brown in person

RESPONDENT:

Troy Grant Heaton in person
Suzanne Gaye McGrane in person

REASONS FOR DECISION

This long-standing dispute between suburban next-door neighbours relates to a number of trees located at 5 Hume Street in otherwise idyllic Golden Beach.
The applicant, Mr Anthony Watson-Brown, asserts that Mr Heaton and Ms McGrane’s trees create:
a) A severe obstruction to sunlight to the four windows in the kitchen and living area of his home, as well as the rear deck sliding doors on the north-east corner of his home; and
b) A severe obstruction of the view, including the sky and outlook from the rear part of his home, from the four windows located in the living area, rear veranda on the north-east corner, and rear yard of his home across the north.
Mr Watson-Brown further asserts that the trees pose a risk of fence damage, as well as future obstruction of the view and outlook along the west end of the common boundary between the properties.
Mr Watson-Brown brings his application pursuant to s 66(2)(b) and (3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). These sections of the Act provide that the Tribunal can…

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 Watson-Brown v Heaton

Details

AGLC: Watson-Brown v Heaton [2014] QCAT 346
Case: [2014] QCAT 346
Decision Date

CaseChat Overview and Summary

This case arose from a long-standing dispute between neighbouring properties in Golden Beach. The applicant, Mr Anthony Watson-Brown, contended that the trees belonging to the respondents, Mr Troy Grant Heaton and Ms Suzanne Gaye McGrane, caused a severe obstruction to sunlight and obstructed his view from his home. The respondents argued that they had already performed considerable work on the trees and that the applicant's claims were unfounded. The central legal issues before the Tribunal were whether the trees on the respondents' property obstructed sunlight or obstructed a view from the applicant's property as defined by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), and if so, whether the obstruction was severe enough to warrant further pruning or removal of the trees.

The Tribunal examined the evidence presented by both parties, including expert reports from arborists Mr Michael Sowden and Mr Scott Hanley. The Tribunal also conducted an inspection of the property with Mr Sowden to assess the extent of the works already undertaken. Based on this evidence, the Tribunal found that the golden cane palm closest to the southeast corner of the dwelling and the two golden cane palms within the timber decking surface still required pruning and removal. The Tribunal rejected the recommendation to remove a large clump of Budda Bamboo, as it did not obstruct sunlight, did not drop leaves onto the applicant's property, and did not pose a risk of structural damage. The Tribunal also held that the applicant's "view" did not include a view of the sky, as it is not a protected view under the Act.

The Tribunal ordered the respondents to prune and remove the specified trees in accordance with detailed guidelines, including compliance with Australian Standard 4373-2007 "Pruning of amenity trees" and the requirement that all works be performed by a qualified arborist with appropriate insurance. The orders also specified the removal of all tree debris and the prohibition of climbing spurs, climbing gaffs, and climbing irons during pruning works.

Orders