Werndly v Orchard

[2013] QCATA 149

CITATION: Werndly v Orchard [2013] QCATA 149

PARTIES:	Brian Werndly Anne Werndly Clem Sutherland (Applicants/Appellants)
v
Christine Orchard Timothy Orchard (Respondents)

APPLICATION NUMBER: APL438-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 16 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The appeal is allowed.

3.    The Tribunal’s decision of 26 November 2012, dismissing the application for a tree dispute, is set aside.

4.    The application for a tree dispute is remitted to the Tribunal at Maroochydore for hearing by a different Member or Adjudicator.

5.    Before the next hearing, an inspection of the applicants’ properties be conducted.

6.    Before the next hearing, an experts’ conclave be conducted by a Member of the Tribunal.

CATCHWORDS:

APPEAL – TREE DISPUTE – where the respondents’ trees obstructed the views from the applicants’ dwellings – where the Tribunal found the interference was not a severe obstruction – where the Tribunal found there was not a substantial, ongoing and unreasonable interference to the use and enjoyment of the applicants’ land – where the applicants seek leave to appeal that decision – whether leave to appeal should be granted

PRACTICE AND PROCEDURE – NATURAL JUSTICE – where the Tribunal appointed a tree assessor to produce a report – where the respondents were granted leave to submit an additional arborist report – where QCAT Practice Direction No 5 of 2011 provides that an expert who produces a report is required to attend an experts’ conclave with the appointed tree assessor – where the Tribunal did not convene an experts’ conclave – where respondents’ arborist led evidence at the hearing in the absence of the appointed tree assessor – whether the Tribunal’s non-compliance with the practice direction amounts to a breach of natural justice

Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 61, s 66(2)(b)(ii), s 66(3), s 72, s 73, s 75
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c), s 28(3), s 226

QCAT Practice Direction No 4 of 2009
QCAT Practice Direction No 5 of 2011

Werndly and Ors v Orchard and Anor [2012] QCAT 599, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. On 25 November 2011, Brian and Anne Werndly, and Clem Sutherland brought an application for a tree dispute against Timothy and Christine Orchard.

2. The application was made under Chapter 3, Part 5 of the Neighbourhood Disputes Resolution Act 2011 (as it then was)[1] seeking orders for the removal or pruning of some of the trees in the Orchards’ backyard, on the basis that they obstruct views of the ocean, Mount Coolum and the Maroochydore River from the dwellings of the Werndlys and Mrs Sutherland.

   [1]The Neighbourhood Disputes Resolution Act 2011 (‘NDR Act’) was amended by the Classification of Computer Games and Images and Other…