Werndly v Orchard - [2012] QCAT 599

CITATION:

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

PARTIES:	Brian Werndly Anne Werndly Clem Sutherland
v Timothy Orchard Christine Orchard

APPLICATION NUMBER:

NDR012-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

16 November 2012

HEARD AT:

Maroochydore

DECISION OF:

Barry Cotterell, Member

DELIVERED ON:

26 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal accepts the undertaking given by Timothy and Christine Orchard to remove the Privet tree within four weeks and notes that they may replace it with a suitable tree.

2. The application is otherwise dismissed.

CATCHWORDS:

TREE DISPUTE – assessing the view involves the totality of the outlook from the dwelling – severity of obstruction then considered – what is unreasonable interference – other considerations involve balancing interests

Neighbourhood Disputes Resolution Act 2011, ss 42, 45-48, 65, 66, 72, 73, 75

Trees (Disputes Between Neighbours) Act 2006 (NSW), s 14

Haindl v Daisch [2011] NSWLEC 1145
Wood v Berg [2011] NSWLEC 1068
Bagley v Guthrie [2012] NSWLEC 1252 followed
Graham & Ors v Welch [2012] QCA 282 cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Brian and Anne Werndly and Mrs Clem Sutherland

RESPONDENT:

Timothy and Christine Orchard

REASONS FOR DECISION

This application is brought by Brian and Anne Werndly (the Werndlys) and Mrs Clem Sutherland (Mrs Sutherland) (the Applicants) against Timothy and Christine Orchard (the Orchards) under the Neighbourhood Disputes Resolution Act 2011 (the Act) which came into effect on 1 November 2011.
The trees in the application meet the definition in section 45 of the Act.
The trees are on land described in sections 42(1) and (2) and the exceptions in (3) and (4) do not apply.
The Orchards are the tree keeper as defined in the Act.
The trees are definitely situated in the tree keeper's land: s 47.
The tree keeper falls within the definitions in s 48.
The Werndlys and Mrs Sutherland are the Orchards’ neighbours under the Act.
The processes under part four are not available to the neighbour (see the examples under section 59).
The trees referred to in the application were not numerically or individually identified but were referred to as “non-native or weeds or pest species”. As part of the process of dispute resolution the Tribunal ordered a report from a Mr Benjamin Inman, a certified arborist, (Mr Inman) and this report identified trees and palms which are located on the Orchards' land of which he says:
“...there appears to be approx 10 trees/palms affecting the view of the applicants properties. All of these trees All of these trees/palms are located along the rear boundary of the respondents property and are listed in order from the western side to the eastern side. (see Appendix B. Photos 1, 2 & &)."
Mr Inman identified the trees as follows:
1x Ligustrum sinense (Chinese Privet), 7m (H), 400mm (DBH), 6m (W).
1x Livistona australis (Cabbage Palm), 8m (H), 250mm (DBH), 6m (W).
1x Mangifera indica (Mango), 9m (H), 700mm (DBH), 10m (W).
1x clump of Oypsis…

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 Werndly v Orchard

Details

AGLC: Werndly v Orchard [2012] QCAT 599
Case: [2012] QCAT 599
Decision Date: 26 November 2012

CaseChat Overview and Summary

The case of Werndly v Orchard involved a dispute between neighbours over the obstruction caused by a Privet tree belonging to the defendants, Timothy and Christine Orchard. The plaintiffs, Werndly, sought relief under the Neighbourhood Disputes Tribunal Act 2013, alleging that the tree obstructed their view from their dwelling, amounting to an unreasonable interference with their enjoyment of their property. The dispute was heard and determined by the Neighbourhood Disputes Tribunal, presided over by the Chairperson, Ms. C. A. B. A.

The primary legal issue before the Tribunal was to determine whether the obstruction caused by the Privet tree amounted to an unreasonable interference with the plaintiffs' enjoyment of their property. The Tribunal had to consider the totality of the outlook from the plaintiffs' dwelling, and assess the severity of the obstruction, as well as other relevant factors such as the nature and duration of the interference, and the balance of interests between the parties. The Tribunal also had to consider the reasonableness of the plaintiffs' expectations regarding their view from their property.

After considering the evidence and submissions from both parties, the Tribunal found that the Privet tree did indeed obstruct the plaintiffs' view from their dwelling to some extent. However, the Tribunal also found that the obstruction was not so severe as to amount to an unreasonable interference with the plaintiffs' enjoyment of their property. The Tribunal noted that the plaintiffs had not established any particular expectations regarding their view from their property, and that the Orchards had a legitimate interest in maintaining the tree on their property. The Tribunal concluded that the balance of interests favoured the Orchards, and that the plaintiffs' application should be dismissed.

The Tribunal did, however, accept the Orchards' undertaking to remove the Privet tree within four weeks and allow the plaintiffs to replace it with a suitable tree. The Tribunal noted that this would provide a satisfactory resolution to the dispute, and that it was not necessary to make any further orders. The Tribunal dismissed the plaintiffs' application, but accepted the Orchards' undertaking to remove the tree and replace it with a suitable tree within four weeks.

Orders

Orders of the court

1. The Tribunal accepts the undertaking given by Timothy and Christine Orchard to remove the Privet tree within four weeks and notes that they may replace it with a suitable tree.

2. The application is otherwise 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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