Bose v Weir

Case [2017] QCAT 352


CITATION: Bose v Weir [2017] QCAT 352
PARTIES: Dipjit Bose and Sujata Bose
(Applicants)
v
Michelle Weir
(Respondent)
APPLICATION NUMBER: NDR165-16
MATTER TYPE: Other civil dispute matters
HEARING DATE: 23 May 2017
HEARD AT: Brisbane
DECISION OF: Senior Member Brown
DELIVERED ON: 13 October 2017
DELIVERED AT: Brisbane
ORDERS MADE:

1. The Tribunal declares 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 in the State of Queensland when Dipjit Bose and Sujata Bose took possession of the land.

2. Dipjit Bose and Sujata Bose must file in the Tribunal two (2) copies and give to Michelle Weir one (1) copy of submissions addressing whether the Application for a tree dispute filed 10 October 2016 should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld), by:

4:00pm on 26 October 2017.

3.    Michelle Weir must file in the Tribunal two (2) copies and give to Dipjit Bose and Sujata Bose one (1) copy of submissions in response, by:

4:00pm on 9 November 2017.

4. The Tribunal will determine whether the Application for a tree dispute should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld), not before:

4:00pm on 9 November 2017.

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) does not apply if there is no dwelling on the neighbour’s land – where dispute about the term ‘possession’ – where neighbour contends ‘ownership’ and ‘possession’ have different meanings

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 49(1)(a)(i), s 49(1)(a)(ii), s 66(3), 66(3)(b)(ii)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(2)(a), 60(1)

Aldred’s Case (1610) 9 Co Rep 57B
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
J & D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2013] QCA 406
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203
Nichol v Campbell [2016] QCATA 204
Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES:

APPLICANT:

The applicants represented themselves

RESPONDENT: The respondent was represented by Darren Weir

REASONS FOR DECISION

  1. Mr and Mrs Boses’ property adjoins that of Mrs Weir. Growing on Mrs Weir’s property are various trees. The Boses’ say that trees situated on Mrs Weir’s land severely obstruct a view from a dwelling on their land that existed when they took possession of the land. The Boses’ say that the obstruction…

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AGLC
Bose v Weir [2017] QCAT 352
Case
[2017] QCAT 352
Decision Date

CaseChat Overview and Summary

Dipjit Bose and Sujata Bose, residents of 34 Harrison Street, Bulimba, Queensland, filed an application to the Queensland Civil and Administrative Tribunal (QCAT) regarding a dispute with their neighbour, Michelle Weir, over the removal of trees on her property that were obstructing their view. The dispute was centred around whether there was a view from a dwelling on the Boses' property at the time they took possession of the land. Specifically, the case addressed the applicability of section 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), which excludes the provision from applying if there was no dwelling on the neighbour's land at the time of settlement. Michelle Weir contended that the terms 'possession' and 'ownership' have different meanings, complicating the interpretation of the statute.

The primary legal issue before the Tribunal was whether the Boses had a view from a dwelling on their land when they took possession, and consequently, if section 66(3)(b)(ii) applied to the case. The Tribunal also had to determine if the application should be dismissed under section 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld) due to the Boses' failure to provide particulars of the view in their application. The court examined the evidence presented to establish the presence or absence of a view at the time the Boses took possession and evaluated the submissions of both parties regarding the interpretation of 'possession'.

The Tribunal found that there was no view from a dwelling on the land at 34 Harrison Street when the Boses took possession, and thus, section 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) did not apply. The Tribunal also determined that the application should not be dismissed under section 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld), and ordered both parties to submit further written submissions on the matter. The Tribunal scheduled a future date for determining whether the application should be dismissed.

The Tribunal made several orders to facilitate the continuation of the dispute resolution process. Firstly, it declared that there was no view from a dwelling on the land at 34 Harrison Street when the Boses took possession. Secondly, it ordered the Boses to file and serve submissions on whether the application should be dismissed by a specified date. Thirdly, it required Michelle Weir to file and serve her response to the Boses' submissions by another specified date. Lastly, the Tribunal set a deadline for deciding whether to dismiss the application. These orders ensured that the dispute could progress through the Tribunal's process while addressing the key legal issues raised by the parties.

Orders

Orders of the court

1. The Tribunal declares 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 in the State of Queensland when Dipjit Bose and Sujata Bose took possession of the land.

2. Dipjit Bose and Sujata Bose must file in the Tribunal two (2) copies and give to Michelle Weir one (1) copy of submissions addressing whether the Application for a tree dispute filed 10 October 2016 should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld), by:

4:00pm on 26 October 2017.

3. Michelle Weir must file in the Tribunal two (2) copies and give to Dipjit Bose and Sujata Bose one (1) copy of submissions in response, by:

4:00pm on 9 November 2017.

4. The Tribunal will determine whether the Application for a tree dispute should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2011 (Qld), not before:

4:00pm on 9 November 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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