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.
REPRESENTATION:
Applicant:
Self-represented
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
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.
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.
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.
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).
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]
[1]ND Act, s 46.
[2]Ibid. ss 59, 62.
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]
[3]Ibid, s 66(2).
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- AGLC
- Bull & Anor and Matthiesson [2019] QCAT 316
- Case
- [2019] QCAT 316
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the tribunal had jurisdiction to hear the dispute and, if so, whether the applicants were entitled to relief. The applicants argued that the tribunal had jurisdiction to hear the matter under the Vegetation Management Act 1999, and that the trees constituted an unreasonable interference with their enjoyment of their land. The respondents contended that the tribunal did not have jurisdiction because the trees had grown after the applicants took possession of the land and obstructed their view. The respondents further argued that the tribunal was not the appropriate forum to resolve disputes between neighbours over trees, and that the matter should be resolved through private negotiations or other legal means.
The tribunal found that it did not have jurisdiction to hear the dispute, as the trees had grown after the applicants took possession of the land. The tribunal held that the Vegetation Management Act 1999 did not provide a basis for the tribunal to interfere with the respondents’ enjoyment of their land in such circumstances. The tribunal also found that the dispute between neighbours over trees was not within its jurisdiction and that the matter should be resolved through private negotiations or other legal means. The tribunal dismissed the application, and the applicants’ claim for relief was denied.
The Land and Environment Court of New South Wales dismissed the application for a tree dispute filed on 23 October 2018. The court found that the tribunal did not have jurisdiction to hear the dispute, as the trees had grown after the applicants took possession of the land. The court held that the Vegetation Management Act 1999 did not provide a basis for the tribunal to interfere with the respondents’ enjoyment of their land in such circumstances. The court further found that the dispute between neighbours over trees was not within the tribunal's jurisdiction and that the matter should be resolved through private negotiations or other legal means.
Orders
Orders of the court
The Application for a tree dispute filed 23 October 2018 is dismissed.
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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