Bull & Anor v Matthiesson & Anor [2019] QCAT 316

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bull & Anor and Matthiesson & Anor [2019] QCAT 316 PARTIES: KEVIN MALCOLM BULL AND LYLIE FAY BULL (applicants) V GLENYS MATTHIESSON AND STEPHEN EDWARD MATTHIESSON (respondents) APPLICATION NO/S: NDR220-18 MATTER TYPE: Other civil dispute matters DELIVERED ON: 14 October 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The Application for a tree dispute filed 23 October 2018 is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees growing on respondents’ land – where applicants allege views obstructed by tree – where applicants purchased vacant block – whether land is affected by a tree – where no view from a home on the land when the applicants took possession of the land – where tribunal does not have jurisdiction in respect of the dispute Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 59, s 62, s 66(3)(b)(ii) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47. Vecchio v Papavasiliou [2015] QCAT 70 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented -- 1 of 3 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Mr and Mrs Bull purchased a vacant allotment with the intention of building a house from which they could enjoy the views from the lot. [2] Mr and Mrs Matthiesson live in a house across the road from the Bulls. There are, growing on the Matthiessons’ land, a number of trees which the Bulls say obstruct the view from their home. [3] The Bulls have filed an application seeking orders for the removal of some of the trees and the pruning of others. For the reasons that follow the application by Mr and Mrs Bull must be dismissed. [4] The relevant enabling Act conferring upon the Tribunal jurisdiction in respect of disputes about trees is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). [5] Land may be affected by a tree.1 If a neighbour’s land is affected by a tree, and the neighbour cannot resolve the issue with the tree keeper using the process under Part 4 of the ND Act, the neighbour may apply to the Tribunal for an order.2 [6] The Tribunal can make orders it considers appropriate in relation to a tree affecting the neighbour’s land to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.3 For interference that is an obstruction of a view, the tree must rise at least 2.5 metres above the ground and the obstruction must be a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.4 [7] The Bulls do not say that the branches from the trees overhang their land, nor do they say that the trees have caused, are causing, or are likely to cause serious injury to any person on their land or serious damage to their land or property on the land. Nor do they say that the trees cause a substantial, ongoing and unreasonable interference with the use and enjoyment of their land as a result of, inter alia, the severe obstruction of sunlight to the roof or a window of their home. [8] What the Bulls say is that their land is affected by the trees on the Matthiessons’ land because the trees severely obstruct the view from their home.5 1 ND Act, s 46. 2 Ibid. ss 59, 62. 3 Ibid, s 66(2). 4 Ibid, s 66(3). 5 Ibid, s 66(3)(b)(ii). -- 2 of 3 -- 3 [9] The ND Act does not create a right to a view. The Tribunal may exercise a discretion to remediate a severe obstruction of a view if the Tribunal is satisfied that the requirements of the ND Act have been met. [10] Section 66(3)(b)(ii) of the ND Act is only engaged if a neighbour (that is, the applicant) can establish, on the evidence, that trees cause a severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land. If there is no dwelling on a parcel of land when a neighbour takes possession of the land, there can be no obstruction of a view from that dwelling for the purposes of s 66(3)(b)(ii) Act.6 [11] It is not contentious that when the Bulls took possession of their land, there was no dwelling on the land. Accordingly, s 66(3)(b)(ii) of the ND Act is not engaged. It follows that the Tribunal cannot make an order pursuant to s 66(2) of the ND Act insofar as the Bulls assert an obstruction of a view. [12] The Tribunal can make orders it considers appropriate in relation to a tree affecting a neighbour’s land.7 As the Bulls’ land is not affected by the trees, the Tribunal has no power to make orders about the trees. [13] The Bulls rely upon what they say is a covenant entered into by the Matthiessons when they purchased their land. The Tribunal has no jurisdiction under the ND Act to determine a dispute arising out of such a covenant. If the Bulls seek to enforce the covenant they must do so in another place. As the Tribunal has no power to make orders about the trees, the proceeding is misconceived and without substance and should be dismissed.8 I order accordingly. 6 Vecchio v Papavasiliou [2015] QCAT 70. 7 ND Act, s 66(2) 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47. -- 3 of 3 --