Weerasena v Boyle - [2024] QCAT 327

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Weerasena v Boyle and Anor [2024] QCAT 327

PARTIES:

THELIKADA PALLIYEGURUGE SISIPIYA UPUL WEERASENA

(applicant)

HIMASHI MUTHUMINI WEERASENA

(applicant)

v

MARINA ELSIE BOYLE

(first respondent)

BRISBANE CITY COUNCIL

(second respondent)

APPLICATION NO/S:

NDR054-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

1.   On or before 30 September 2024 the first respondent, Ms Marina Boyle, must engage an Australian Qualified Framework (‘AQF’) level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the initial inspection’) to:

(a)      assess the structural integrity of the trees;

(b)      identify any structural defects; and

(c)      provide recommendations for mitigating the risk of any identified structural defects and the level of lateral canopy reduction which is necessary and can be safely undertaken to maintain the tree’s health and stability.

2.   Unless there is a significant weather event and Order 3 is enlivened, twelve (12) months after the initial aerial inspection, on an annual basis thereafter (to be completed in the same month of each year), Ms Marina Boyle must engage an AQF level 5 arborist with appropriate insurances to undertake a level 2 or level 3 assessment (provided that at least once every two years the inspections include at least one aerial inspection) of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the yearly inspections’) to:

(a)      assess the structural integrity of the tree;

(b)      identify any structural defects; and

(c)      provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken.

3.   If the two Scribbly Gum (Eucalyptus racemosa) trees are subjected to a significant weather event with a Beaufort scale of 9 or greater, Ms Marina Boyle must:

(a)       Engage an AQF level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees, within two months of the significant weather event, (the severe weather inspection’) to:

(i)       assess the structural integrity of the tree;

(ii)       identify any structural defects; and

(iii)      provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken; and

(b)      Conduct an assessment of the tree on an annual basis thereafter (to be completed in the same month of each year) in line with the requirements of the yearly inspections in Order 2.

4.   Ms Marina Boyle must engage an AQF level 3 (or above) arborist with appropriate insurances to undertake any recommendations in the initial inspection, the yearly inspections or the severe weather inspections to mitigate the risk of any identified structural defects or undertake recommended lateral canopy reduction, within two (2) months of receiving those recommendation.

5.   Ms Marina Boyle will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the…

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 Weerasena v Boyle

Details

AGLC: Weerasena v Boyle [2024] QCAT 327
Case: [2024] QCAT 327
Decision Date: 7 August 2024

CaseChat Overview and Summary

In the matter of Weerasena v Boyle, the dispute between neighbours centred around the overhanging branches of two Scribbly Gum trees on the boundary of the parties' respective properties. The Weerasenas, the applicants, sought relief from the Supreme Court of New South Wales, alleging that the trees posed a risk of serious injury or damage due to the overhanging branches, the accumulation of excessive leaf litter, and concerns regarding the trees' structural integrity. The trees in question were also subject to a Vegetation Protection Order (VPO) due to their ecological value.

The court was required to determine whether the trees were likely to cause serious injury or damage and whether the applicants were entitled to any relief in light of the VPO. The key legal issues included the interpretation of the VPO and the balance between the applicants' right to enjoy their property and the respondents' rights to maintain the trees.

The court held that the risk of serious injury or damage was not imminent but required proactive management. It ordered that the respondents must engage qualified arborists to conduct regular inspections and assessments of the trees' structural integrity and to implement any necessary measures to mitigate risks. The court emphasised the importance of balancing the ecological value of the trees with the need to ensure safety and resolve the dispute. The orders mandated specific inspection protocols and timelines, as well as the sharing of inspection reports between the parties.

The final orders included detailed requirements for regular inspections and assessments by qualified arborists, the implementation of recommended measures, and the sharing of inspection reports. These measures were designed to ensure the trees' safety while respecting their ecological value and the respondents' rights under the VPO.

Orders

Orders of the court

1. On or before 30 September 2024 the first respondent, Ms Marina Boyle, must engage an Australian Qualified Framework (‘AQF’) level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the initial inspection’) to:

(a) assess the structural integrity of the trees;

(b) identify any structural defects; and

(c) provide recommendations for mitigating the risk of any identified structural defects and the level of lateral canopy reduction which is necessary and can be safely undertaken to maintain the tree’s health and stability.

2. Unless there is a significant weather event and Order 3 is enlivened, twelve (12) months after the initial aerial inspection, on an annual basis thereafter (to be completed in the same month of each year), Ms Marina Boyle must engage an AQF level 5 arborist with appropriate insurances to undertake a level 2 or level 3 assessment (provided that at least once every two years the inspections include at least one aerial inspection) of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the yearly inspections’) to:

(a) assess the structural integrity of the tree;

(b) identify any structural defects; and

(c) provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken.

3. If the two Scribbly Gum (Eucalyptus racemosa) trees are subjected to a significant weather event with a Beaufort scale of 9 or greater, Ms Marina Boyle must:

(a) Engage an AQF level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees, within two months of the significant weather event, (the severe weather inspection’) to:

(i) assess the structural integrity of the tree;

(ii) identify any structural defects; and

(iii) provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken; and

(b) Conduct an assessment of the tree on an annual basis thereafter (to be completed in the same month of each year) in line with the requirements of the yearly inspections in Order 2.

4. Ms Marina Boyle must engage an AQF level 3 (or above) arborist with appropriate insurances to undertake any recommendations in the initial inspection, the yearly inspections or the severe weather inspections to mitigate the risk of any identified structural defects or undertake recommended lateral canopy reduction, within two (2) months of receiving those recommendation.

5. Ms Marina Boyle will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the work outlined in Orders 1 to 4.

6. Ms Marina Boyle must give the applicants, Mr and Mrs Weerasena, a copy of any reports or findings from the initial assessment, yearly assessment or severe weather assessment of the two Scribbly Gum (Eucalyptus racemosa) trees within fourteen (14) days of Ms Boyle receiving them.

7. If requested, the applicants, Mr and Mrs Weerasena, must allow Ms Boyle’s elected arborist to access their land to undertake the work outlined in Orders 1 to 4.

8. These orders remain in force and effect for a period of 10 years from the date hereof.

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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