McGowan v Griffiths

[2013] QCAT 373

CITATION: McGowan v Griffiths [2013] QCAT 373

PARTIES:	Gary Kevin McGowan (Applicant)
v
Graeme William Griffiths (Respondent)

APPLICATION NUMBER: NDR198-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: 26 April 2013

HEARD AT: Brisbane

DECISION OF: Ms Peta Stilgoe, Senior Member

DELIVERED ON: 26 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

Application is dismissed. Each party must bear their own costs of and incidental to the application.

CATCHWORDS:

TREE DISPUTE – whether substantial ongoing and unreasonable interference – whether tree existed before acquisition of property by neighbour
COSTS – whether costs should be ordered

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 66
Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102

Thomsen v White [2012] QCAT 381.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Gary Kevin McGowan
RESPONDENT:	Graeme William Griffiths

REASONS FOR DECISION

1. Mr McGowan built a house in leafy Fig Tree Pocket. He wanted to put solar hot water panels on his roof, but he says overhanging trees from the neighbour’s land prevent this. He also complains of tree litter blocking his gutters and clogging his swimming-pool.

1. The application he filed nominates eight trees to be removed. Queensland Civil and Administrative Tribunal (QCAT) sent an arborist to assess the problem.  The arborist concluded that the trees were healthy and that removing them would have no influence on Mr McGowan’s leaf litter problem.

1. The arborist did recommend the removal of dead wood from the canopy and the removal of one tree, which is growing towards Mr McGowan’s property.

1. The tree-keeper, Mr Griffiths, engaged his own arborist. The arborist agrees that the trees are healthy and pose no serious risk to the neighbour. The arborist also agrees that one tree is growing towards Mr McGowan’s property, but he says that can be managed by pruning.

1. Section 66(2) of the Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 provide that QCAT may:

(2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

(a) to prevent serious injury to any person; or

(b) to remedy, restrain or prevent—

(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or

(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

1. This Tribunal has already determined that leaf litter is not of itself a substantial ongoing and unreasonable interference, and in that regard I refer to Thomsen v White [2012] QCAT 381.

1. There is no evidence in any of the material of a likelihood of serious damage to the neighbour’s land or any property on the land, which leaves the question of sunlight.

1. Section 66(3) of the Act does provide that interference can be a severe obstruction of sunlight to a roof. However, the Tribunal must also have regard to section 72, which says that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved, and section 75(d) which says, in determining whether to make an order, the Tribunal can consider whether the tree existed before the neighbour acquired the land.

1. Clearly, these trees did exist before Mr McGowan built his house. The issue of sunlight pre-existed the construction of his house, and in those circumstances I don’t propose to make any order in relation to the sunlight.

1. The Tribunal appoints assessors to help the Tribunal by giving expert evidence. The arborist can and does make findings of fact, but it is not the arborist’s function to decide the issues in dispute. The Tribunal has found that arborists often make recommendations for the health of the tree, but those recommendations do not respond to the Tribunal’s obligations in s.66(2).

1. The function of deciding the issues in dispute is my job. The suggestions by both arborists in relation to the leaning tree and the clearing of the dead wood might be useful for the future tree management, but neither of those things is necessary to address any of the problems identified by the Act.

1. In that case, I make no order and Mr McGowan’s application is dismissed.

1. Mr Griffiths wants compensation for the trees he says Mr McGowan cut down without authority. As the Act gives me no power to make the orders that Mr McGowan seeks, similarly there is no power to make orders in relation to a tree that is not the subject of the dispute, so in that respect Mr Griffiths’ counter-application is dismissed.

1. Mr Griffiths also wants costs of $440 for the arborist’s report that he had prepared.

1. As I mentioned during the hearing, s.100 provides that, generally speaking, each party must bear its own costs. The exception to that is, unless it is in the interests of justice to do so.

1. When I’m considering an order for costs, section 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 says that:

(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

1. Mr Griffiths argued that Mr McGowan was acting in a way that unnecessarily disadvantaged him in these ways: that Mr Griffiths invited Mr McGowan to obtain legal advice, which he apparently did not do; that his claim started off being related to solar panels but then changed to leaf litter and safety; that Mr Griffiths told him early that he did not want the trees cut down; and that Mr McGowan entered into Mr Griffiths’ property without authority and cut down trees.

1. I have already told Mr Griffiths, and these reasons record, that I cannot and will not make an order in relation to the destruction of trees.

1. Mr Griffiths’ report is dated 12 December. It was not provided to Mr McGowan until 18 April 2013. It is a cost in the proceeding----

1. ADJUDICATOR: The report that the Tribunal has is 12 December, and it was received by the Tribunal on the 18^th, it was received earlier by the Tribunal on 18^th April, but it was ---

1. ADJUDICATOR: Mr Griffiths. They are not costs that would normally be awarded in a Tribunal hearing, because they are costs of the proceedings.

1. Despite Mr McGowan clearly proceeding with this application in the face of all contrary indications, I am not satisfied that it goes so far as to constitute vexatious behaviour, as is understood by the Tribunal; but it is a very near run thing, Mr McGowan.

1. In the circumstances, it is simply a cost of litigation, Mr Griffiths, and I do not propose to order any costs.

1. The application, Mr McGowan, is dismissed.