Bowyer v Ortlipp

Bowyer v Ortlipp was an appeal against a decision made by the Queensland Civil and Administrative Tribunal (QCAT) in relation to the planting of bamboo on a property boundary. The respondents, Ortlipp and another, sought an order that the applicants, Bowyer and another, remove certain bamboo plants from the boundary between their properties. The QCAT found that the bamboo plants caused a severe obstruction of the respondents’ views and ordered the applicants to prune the bamboo to a maximum height of three metres. The applicants appealed against the QCAT decision, asserting various errors in the tribunal's findings and orders. The legal issues before the court were whether the QCAT erred in finding that the bamboo plants caused a severe obstruction of the respondents’ views, whether the QCAT erred in finding that the obstruction of views constituted a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land, and whether the QCAT erred in making orders in relation to the bamboo plants.

The court held that the QCAT did not err in finding that the bamboo plants caused a severe obstruction of the respondents’ views. The court found that the QCAT had correctly assessed and valued the views and the impact of the obstruction of the views, and had correctly determined that the obstruction of views was severe. The court also found that the QCAT did not err in finding that the obstruction of views constituted a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land. The court held that the QCAT had correctly applied the relevant legal test in finding that the obstruction of views caused a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land. The court further held that the QCAT did not err in making orders in relation to the bamboo plants. The court found that the QCAT had correctly considered the matters for consideration under Chapter 3, Part 5, Division 4 of the Nature Conservation Act 1992 (Qld) and had made appropriate orders in relation to the bamboo plants.

The appeal was dismissed, and leave to appeal was refused. The court found that the QCAT's decision was not affected by any error of law, and that there was no basis for interfering with the QCAT's exercise of discretion in making orders in relation to the bamboo plants. The court held that the QCAT's findings and orders were supported by the evidence and were reasonable in the circumstances. The applicants were ordered to pay the respondents’ costs of the appeal.