Bose v Weir (No. 2) [2017] QCAT 448

CITATION: Bose v Weir (No. 2) [2017] QCAT 448 PARTIES: Dipjit Bose and Sujita Bose (Applicants) v Michelle Weir (Respondent) APPLICATION NUMBER: NDR165-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 11 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for a tree dispute dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstruct a view that previously existed – where no dwelling upon the land at the time of settlement – where s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) not engaged if no dwelling on neighbour’s land when the neighbour took possession of land – where Tribunal found that the applicants were unable to establish the jurisdictional fact required for the Tribunal to make an order in relation to the trees – where the Tribunal must decide whether the proceeding should be dismissed on the basis that it is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process – where application unsustainable in law – Where Tribunal finds that Application should be dismissed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66(3)(b)(ii) -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(2)(a) Bose v Weir [2017] QCAT 352 Jones v Cusack (1992) 109 ALR 313 Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 13 October 2017 I made a declaration that, for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), there was no view from a dwelling on the land at 34 Harrison Street, Bulimba, when the applicants took possession of the land. I directed the parties to file submissions addressing whether the Application for a tree dispute should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [2] As I set out in my earlier reasons, because there was no dwelling on their land when they took possession of the land, the applicants, Mr and Mrs Bose, are unable to establish the jurisdictional fact required for the Tribunal to make an order in relation to the trees situated on Mrs Weir’s land, at least insofar as the applicants complain that the trees cause an obstruction of a view. [3] In order to ensure that the parties were afforded procedural fairness, directions were made for the parties to file submissions addressing whether the proceeding should be dismissed on the basis that it is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. [4] Mr and Mrs Bose have filed no submissions. Mrs Weir has. Mrs Weir says that the basis of the tree dispute by the Boses has never been clearly established. Mrs Weir says that the Application for a tree dispute by the Boses should be dismissed. Discussion [5] It is relevant to consider what, in the Application for a tree dispute, Mr and Mrs Bose say is not in dispute: a) The dispute is not about branches overhanging 50cm or more from the common boundary;1 b) The tree has not caused serious injury to any person;2 1 Application for a tree dispute filed 10.10.16 at Part C, 8. 2 Application for a tree dispute filed 10.10.16 at Part C, 11. -- 2 of 4 -- 3 c) The tree has not caused serious damage to Mr and Mrs Boses’ land or property on their land.3 [6] The only matter complained about by Mr and Mrs Bose in the Application is the impact that the trees situated on Mrs Weir’s land will have on the views from the rear balcony and formal lounge sitting area of their home. In their Application Mr and Mrs Bose state that: We are concerned that as the trees grow, they will create severe obstruction of views.4 [7] In stating the reasons they consider orders should be made for the removal or pruning of the trees on Mrs Weir’s land, Mr and Mrs Bose state: Since taking possession we have been enjoying an expanded view of the Brisbane city skyline including part of South Bank, Woolloogabba, on the Southern side (sic) These are visible from our rear balcony and formal lounge sitting area. The price of the land we paid and design of the house took into consideration of these appealing views upon construction completion. These views are an important part of our enjoyment of our home including valuation. We are concerned that as the trees grow, they will create a severe obstruction of our views. This was evident from mid-2015 due to the olive trees growing over my line of view and they were failed to be pruned after repeated requests. The foxtail palms are causing obstructions currently. Please see detailed letter and arborist report.5 [8] Attached to the Application is a report from an arborist6 and a letter from Mr and Mrs Bose to Mrs Weir.7 Both the report and the letter refer to the impact of trees growing upon Mrs Weir’s land upon views from Mr and Mrs Boses’ land. Neither the report nor the letter refer to any other way in which it is said that the trees on Mrs Weir’s land affect Mr and Mrs Boses’ land or property on their land. [9] In what they describe as a ‘counter response’ to the Response filed by Mrs Weir, Mr and Mrs Bose refer to the Response failing to address ‘the sole problem of her trees blocking our views’.8 Insofar as the manner in which the trees on Mrs Weir’s land affect Mr and Mrs Boses’ land is concerned, the ‘counter response’ addresses only issues relating to the obstruction of views. [10] The submissions filed by Mr and Mrs Bose addressing the preliminary question the subject of my earlier decision9 do not suggest that the trees on Mrs Weir’s land affect Mr and Mrs Boses’ land in any way other than the obstruction of views. 3 Ibid, Part C, 13. 4 Ibid, Part C, 30. 5 Ibid, Part F, 40. 6 Report Matt Williams, 10.08.16. 7 Letter dated 12.08.16. 8 Counter Response attached to Application for Miscellaneous Matters filed 30.01.17. 9 Directions 20.02.17; Applicants’ submissions filed 05.05.17, 05.06.17 and 22.06.17. -- 3 of 4 -- 4 [11] I have found that Mr and Mrs Bose are unable to establish the jurisdictional fact required in order for the Tribunal to make the orders they seek in relation to the trees situated on Mrs Weir’s land.10 Mr and Mrs Bose have not identified or otherwise alleged, other than the obstruction of views, any way in which the trees situated on Mrs Weir’s land affect their land. It is clear that the only way in which Mr and Mrs Bose say that their land is affected by the trees on Mrs Weir’s land is as a result of the obstruction of views from their land caused by the trees. [12] Mr and Mrs Bose cannot succeed with their application, limited as it is to a claim relating to the obstruction of a view. The proceeding might be categorised as vexatious, misconceived or lacking in substance. A proceeding is vexatious if it is productive of serious and unjustified trouble and harassment.11 The question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously.12 The proceeding by Mr and Mrs Bose is obviously hopeless and bound to fail, it is unsustainable in law and unable to justify relief on any reasonable view. Mrs Weir would be put to serious and unjustified trouble in being required to further respond to the application by Mr and Mrs Bose. [13] In circumstances where the Tribunal considers a proceeding by an applicant to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the Tribunal may, pursuant to s 47(2)(a) of the QCAT Act, dismiss the proceeding. The Tribunal may act under s 47(2) of the QCAT Act on the application of a party to the proceeding or on the Tribunal’s own initiative.13 The appropriate order is that the Application for a tree dispute filed 10 October 2016 is dismissed. 10 Bose v Weir [2017] QCAT 352 at [43]. 11 Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271. 12 Jones v Cusack (1992) 109 ALR 313. 13 QCAT Act, s 47(3). -- 4 of 4 --