Withers v McHugh - [2018] QCATA 186

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Withers v McHugh [2018] QCATA 186

PARTIES:

RUSSEL WITHERS
(applicant)

v

RANDALL McHUGH

(respondent)

APPLICATION NO:

APL358-17

ORIGINATING APPLICATION NO:

NDR035-16

MATTER TYPE:

Appeals

DELIVERED ON:

30 November 2018

HEARING DATE:

20 August 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Kanowski

ORDERS:

1. Leave to appeal is refused.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where conflict of evidence – where conflicting expert opinion – whether findings by the tribunal open on the evidence

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – whether final orders by tribunal uncertain

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) mandates the requirements for the assessment of a tree – whether arborist appointed by the tribunal as an assessor undertook appropriate assessment of tree – whether use of a quantified assessment tool by an arborist is required

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a), s 45, s 46(a), s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 48(1)(a), s 49(1)(a), s 49(1)(a)(i), s 59, s 61, s 62(1), s 65, s 66, s 66(2), s 73
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147(1), s 147(2), s 147(3)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cachia v Grech [2009] NSWCA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
Fox v Percy (2003) 214 CLR 118
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this appeal about?

There is a large silky oak tree on Mr Withers’ property (‘the tree’). Mr McHugh, who lives with family in a property adjoining that of Mr Withers, applied to the tribunal for an order that the tree be removed. The focus of the application was the risk, said Mr McHugh, of branches falling into his property. There is a swimming pool on Mr McHugh’s property that is near the tree. In 2008 some large branches fell from the tree into the pool.
The tribunal ordered that the tree be removed.[1] Mr Withers appeals against that decision.
[1]McHugh v Withers & Anor [2017] QCAT 346.

Appeals – the statutory framework

An appeal on a question of law is as of right.[2] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.[3]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(1).
[3]Ibid, s 142(3)(b).
If an appeal is one against a decision on a question of fact only or a question of mixed…

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 Withers v McHugh

Details

AGLC: Withers v McHugh [2018] QCATA 186
Case: [2018] QCATA 186
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the case of Withers v McHugh, the dispute arose between the parties over the assessment and potential removal of a tree situated on the boundary between their respective properties. The Queensland Civil and Administrative Tribunal (QCAT) had previously determined that the tree should be removed due to its potential to cause harm, and this decision was the subject of an appeal by Mr Withers. The Court of Appeal was tasked with determining whether the QCAT's findings were supported by the evidence, whether the use of a quantified assessment tool was necessary, and whether procedural fairness was upheld.

The key legal issues before the court included whether the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) required the use of a quantified assessment tool in tree evaluations, and if not, whether such tools were necessary. The court also had to consider whether the evidence supported QCAT's findings on the tree's potential to cause harm and its value, as well as whether procedural fairness was compromised. Furthermore, the court examined whether the removal order was sufficiently certain.

The Court of Appeal found that the Neighbourhood Disputes Act did not mandate the use of a quantified assessment tool. It held that the use of such tools was not necessary for a qualified arborist to conduct an assessment, and therefore the absence of these tools did not affect the admissibility or weight of the evidence presented. The court also determined that the evidence did support QCAT's findings regarding the tree's potential to cause harm and its lack of historical, cultural, social, or scientific value. The tribunal's findings on these matters were consistent with the evidence, and the use of a quantified assessment tool was not a prerequisite for a valid assessment. The court further found that procedural fairness was upheld and that the removal order was sufficiently certain.

In conclusion, the Court of Appeal dismissed the appeal and denied leave to introduce new evidence. The tribunal's decision to order the removal of the tree was affirmed, as the findings were supported by the evidence and the legal principles applied.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Leave to appeal is refused. Application to introduce new evidence In the course of his oral submissions, Mr McHugh sought leave to rely upon fresh evidence in the form of building plans relating to an extension to the dwelling on Mr Withers’ property. The plans were in fact attached to Mr Withers’ appeal submissions.[72] The plans were not before the tribunal below. In his submissions, Mr Withers said that the plans demonstrate the land on which the tree is situated is not level. We have dealt with this particular ground of appeal.[72]Appeal Book filed 1 February 2018, attachment 3. As we have decided the appeal in Mr McHugh’s favour it is unnecessary to decide the application to rely upon fresh evidence.Conclusion Leave to appeal is refused. The appeal is dismissed.

Decision

Reasons for decision

The tribunal made directions for the parties to file submissions addressing why orders should not be made in the proceedings in accordance with the earlier consent orders made following the compulsory conference.[27] The directions also provided for the application for a tree dispute to be determined on the papers. The tribunal subsequently decided the matter. [27]Directions made 27 April 2017. The decision below Relevant to the present appeal the learned member found:(a)That the upper canopy of the tree extended over Mr McHugh’s land by approximately 4 metres;[28][28]McHugh v Withers & Anor [2017] QCAT 346, [20].(b)Mr McHugh’s land was affected by the tree;[29][29]Ibid. (c)The tree was likely within the next 12 months to cause serious injury to a person on Mr McHugh’s land or serious damage to his land or property;[30] [30]Ibid.(d)Branches had fallen from the tree on previous occasions;[31][31]Ibid.(e)The tree was over-mature to senescent and due to past pruning had areas of decay;[32][32]Ibid.(f)The appropriate order was for the removal of the tree because:(i) The tree was situated 0.27 metres from the boundary fence between Mr Hugh’s property and Mr Withers’ property;[33][33]Ibid, [23].(ii) The tree was 23 metres high with a 10 metre canopy;[34][34]Ibid. (iii) The tree canopy was overhanging 4 metres into Mr McHugh’s property;[35][35]Ibid, [23].(iv) The structural root zone of the tree was estimated to extend to an area of 3.04m radius around the trunk of the tree;[36][36]Ibid.(v) The tree protection zone, which measures the distance around the tree required for its continued health is estimated to be 8.64m;[37][37]Ibid.(vi) The roots of the tree extended well into Mr McHugh’s land and under the pool located on the land;[38](vii) Other infrastructure at risk of damage from the tree included the dwellings on both properties and a child’s cubbyhouse;[39](viii) The tree leant towards Mr McHugh’s land, having an asymmetrical canopy due to at least three major pruning events and had areas of swelling to the trunk and signs of decay at the places where branches have been lopped;[40](ix) There were risks that the tree could cause injury or damage in the event of a cyclone or other extreme weather event;[41](x) The tree was exposed to the wind;[42](xi) The tree was between 60 to 70 years old and considered to be “over-mature to senescent”;[43](xii) The tree had a long history of limb failure;[44](xiii) The tree had visible decay within old pruning wounds on several limbs;[45](xiv) there were numerous epicormically derived branches throughout the canopy which were prone to fail in strong winds due to poor branch attachment;[46](xv) The age of the tree meant that the ability of the tree to resist decay in the future will likely decline and that pruning of this tree at this stage of its life and in view of its location is not a reasonable alternative to its removal.[47][38]Ibid. [39]Ibid. [40]Ibid, [27].[41]Ibid, [30].[42]Ibid.[43]Ibid.[44]Ibid. [45]Ibid. [46]Ibid, [31][47]Ibid, [33].

Ratio Decidendi

Legal Principle Established

As to the submission by Mr Withers that the learned member erred in finding that the tree had last been pruned in May 2016, Mr McHugh agrees that the tree was last pruned in 2017 but that nothing turns on the error in this appeal. Consideration Before proceeding to consider the various grounds of appeal it is appropriate to address Mr Withers’ principal criticism of Mr Sowden’s report, that Mr Sowden did not use the ‘Quantified Tree Risk Assessment (TRAQ)’ tool. The mismatch between the name and the acronym warrants comment. Mr Tom’s report reveals that he used two assessment tools: one called the Quantified Tree Risk Assessment (‘QTRA’) and the other called the International Society of Arboriculture (‘ISA’) Tree Risk Assessment Qualification (‘TRAQ’). Mr Tom in his report lists his QTRA licence number, and mentions that he is ‘ISA TRAQ Certified’. Mr Randall likewise cites his QTRA licence number, and lists ISA TRAQ in his list of qualifications. Mr Sowden’s list of qualifications mentions TRAQ but not QTRA. Mr Withers’ written submissions in the appeal use the acronym QTRA, but in oral submissions he also used the acronym TRAQ. However, nothing appears to turn on this because it is evident that both QTRA and TRAQ involve the use of standard checklists, descriptors and scoring systems. We will refer to these tools as ‘quantified assessment tools’. Mr Tom in his report describes QTRA and TRAQ as ‘two … industry accepted best practice assessment tools’.[55] [55]Report of Adam Tom dated 21 June 2016, page 12.The grounds of appeal - questions of law or fact? Several of the grounds of appeal raised by Mr Withers involve questions of fact including whether the level of risk found by the member was supported by the evidence, whether the evidence supported the findings that the tree had no historical, cultural, social or scientific value and whether the evidence supported the finding that the tree was over-mature to senescent. The appeal grounds also raise questions of law:(a)does the ND Act require the use of a quantified assessment tool?(b)if not, is the use of a quantified assessment tool otherwise necessary?(c)was Mr Withers denied procedural fairness?(d)is the removal order too uncertain? We will address first the questions of law. Does the ND Act require the use of a quantified assessment tool? The ND Act does not prescribe the use of a quantified assessment tool such as the QTRA or the TRAQ, or indeed any other particular method.Is the use of a quantified assessment tool otherwise necessary? Each of the reports of the arborists contains a mix of observational evidence, expert opinion, and recommendation. Mr Withers concedes that there was no evidence before the tribunal below that the use of a quantified assessment tool is a requirement of a tree assessment undertaken by a qualified arborist. In any event, such a requirement would not be determinative of whether evidence could be accepted in QCAT or the weight to be given to such evidence.

CITATION:	Withers v McHugh [2018] QCATA 186
PARTIES:	RUSSEL WITHERS (applicant)
v
RANDALL McHUGH (respondent)
APPLICATION NO:	APL358-17
ORIGINATING APPLICATION NO:	NDR035-16
MATTER TYPE:	Appeals
DELIVERED ON:	30 November 2018
HEARING DATE:	20 August 2018
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Member Kanowski
ORDERS:	1. Leave to appeal is refused. 2. The appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where conflict of evidence – where conflicting expert opinion – whether findings by the tribunal open on the evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – whether final orders by tribunal uncertain ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) mandates the requirements for the assessment of a tree – whether arborist appointed by the tribunal as an assessor undertook appropriate assessment of tree – whether use of a quantified assessment tool by an arborist is required Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a), s 45, s 46(a), s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 48(1)(a), s 49(1)(a), s 49(1)(a)(i), s 59, s 61, s 62(1), s 65, s 66, s 66(2), s 73 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147(1), s 147(2), s 147(3) Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391 Fox v Percy (2003) 214 CLR 118 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented