Bose v Weir

[2020] QCATA 7

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bose v Weir [2020] QCATA 7

PARTIES:

DIPJIT BOSE
and
SUJATA BOSE

(applicant\appellant)

v

MICHELLE WEIR

(respondent)

APPLICATION NO/S:

APL375-17

ORIGINATING APPLICATION NO/S:

NDR165-16

MATTER TYPE:

Appeals

DELIVERED ON:

17 January 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where appeal on question of law – whether error by tribunal

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstructed a view that previously existed – where no dwelling on the land at the time of registration of neighbour’s interest in the land – whether dwelling present when neighbour took ‘possession’ of the land within meaning of the Act

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(2)(a), s 117, s 142

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(3)(b), s 49, s 62, s 66, s 75

Birnbaum v Akero [2014] QCATA 18

Bose v Weir [2017] QCAT 352
Bose v Weir (No. 2) [2017] QCAT 448
Craig v South Australia (1995) 184 CLR 163
KLDE Pty Ltd (In Liq) v Commissioner of Stamp Duties (1984) 155 CLR 288
Laing v Kokkinos (No 2) [2013] QCATA 247
Mahoney v Corrin [2013] QCAT 318
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford [2016] QCATA 203
Nichol v Campbell [2016] QCATA 204
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Penev v County Court of Victoria [2013] VSC 143
The Queen v Australian Broadcasting Tribunal (1980) 144 CLR 13

Vecchio v Papavasiliou [2015] QCAT 70

REPRESENTATION:
Applicant:	Jason Nott Solicitors
Respondent:	Self-represented
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. The question arising under this appeal is when does a person take ‘possession’ of land for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).

2. The appellants were the applicants in the initial application to the Tribunal for a tree dispute. They claimed obstruction of a view from a dwelling on their land caused by trees growing on the adjoining land of the respondent.

3. As noted in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford,[1] there is no right to a view at law. However, the Act creates a limited ‘right’ to a view.[2] Section 66(2)(b)(ii) of the Act provides that the Tribunal may make an order it considers appropriate where a tree is causing ‘substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land’. That sub-section is qualified by s 66(3)(b)(ii), which provides that where the interference is an obstruction of a view, a remedy arises only if the obstruction is:

   severe obstruction…