Young v Puck - [2021] QCAT 231

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Young and Anor v Puck [2021] QCAT 231

PARTIES:

NATHAN STEWART YOUNG, SHASTA WATSON and BODY CORPORATE PODIUM CTS 47285

(applicant)

v

GOTLIEB PUCK

(respondent)

APPLICATION NO/S:

NDR093-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 June 2021

HEARING DATE:

7 June 2021

HEARD AT:

Maroochydore

DECISION OF:

Member King-Scott

ORDERS:

1.   The Tribunal makes the following orders:

2.   The tree to be pruned (the initial pruning) subject to the conditions and in accordance with the recommendations of the tree assessor in his report dated 24 February 2020 within 60 days of the date of this order.

3.   Maintenance pruning be carried out in accordance with and subject to the conditions of the tree assessor’s recommendations.

4. Unless the Respondent ceases to be the tree-keeper or the tree dies, is destroyed, or removed this order will continue in operation after 10 years after the day the order was made and is excepted from the limitation of s.78(1) of the Neighbourhood Disputes Resolution Act 2011 (Qld).

5.   The Body Corporate Podium CTS 47285 be responsible for appointing and engaging the arborist to carry out the initial pruning and the maintenance pruning.

6.   The Body Corporate Podium CTS 47285 will give the Respondent at least 14 days’ notice in writing of the arborist’s intention to attend and carryout the initial pruning and subsequent maintenance pruning.

7.   The Respondent will give the arborist appointed by the Body Corporate Podium CTS 47285 all appropriate access to his property necessary to carry out the pruning.

8.   The Respondent and the Body Corporate Podium CTS 47285 will share equally the costs of the initial pruning and the future maintenance pruning carried out in accordance with paragraph 1 and 2 hereof.

9.   The Respondent pay to Body Corporate Podium CTS 47285 the sum of $1,752.30 by 4.00 pm 30 July 2021.

CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Where land affected by a tree situated on adjoining land – where lot owners filed application for a tree dispute – where ‘tree keeper’ owns adjoining property – whether a lot owner subject to the Body Corporate and Community Management Act 1997 (Qld) is a ‘neighbour’ under s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) -Where removal of tree branch appropriate to prevent serious injury to a person or serious damage to property or land – Where agreement reached between parties as to the works to be undertaken – Where it is necessary for the Tribunal to make an order relating to the cost of the work required – where the tree keeper has frustrated previous attempts to have the tree pruned and caused the neighbour to incur unnecessary expense

Body Corporate and Community Management Act 1997 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Act 2009 (Qld)

Lowe v BGC Technical [2016] QCATA 124

APPEARANCES & REPRESENTATION:

Applicant:

Ms Jacqueline Morrison, Secretary…

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 Young v Puck

Details

AGLC: Young v Puck [2021] QCAT 231
Case: [2021] QCAT 231
Decision Date

CaseChat Overview and Summary

The case of Young v Puck involved an application for an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) to address a dispute between neighbours over the maintenance and pruning of a large tree on the adjoining property. The applicants, Nathan Stewart Young, Shasta Watson, and the Body Corporate Podium CTS 47285, sought to compel the tree keeper, Gottlieb Puck, to undertake necessary pruning to prevent damage to their property. The legal issues before the Tribunal were whether the applicants had standing to bring the application and whether the Tribunal had jurisdiction to make the orders sought. The Tribunal found that the applicants had standing and that it had jurisdiction to hear the matter. The Tribunal also considered the evidence and submissions regarding the history of the dispute, the need for pruning, and the costs associated with the pruning works.

The Tribunal made several orders, including that the tree be pruned in accordance with the recommendations of an arborist’s report, that the initial pruning and maintenance pruning be shared equally between the applicants and the respondent, and that the respondent pay a portion of the costs and damages. The Tribunal found that the respondent should pay half of the costs of the pruning carried out in 2019 and damages to the applicants’ property, as well as costs incurred due to the respondent’s actions. The Tribunal also found that the respondent should pay the sum of $1,752.30 to the applicants by a specified date. The orders were to continue in operation beyond the 10-year limitation period specified in the Neighbourhood Disputes Resolution Act 2011 (Qld) to avoid further disputes.

Orders