Bull & Anor and Matthiesson - [2019] QCAT 316

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.

Vecchio v Papavasiliou [2015] QCAT 70

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).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bull & Anor and Matthiesson

Details

AGLC: Bull & Anor and Matthiesson [2019] QCAT 316
Case: [2019] QCAT 316
Decision Date: 14 October 2019

CaseChat Overview and Summary

Bull and Anor v Matthiesson is a case concerning a dispute between neighbours regarding trees growing on the respondents’ land. The applicants, Bull and Anor, alleged that the trees obstructed their views from their home. They had purchased a vacant block of land, but when they took possession, there were no trees obstructing the view. The applicants sought relief under the Vegetation Management Act 1999, claiming that the trees constituted an unreasonable interference with their enjoyment of their land. The respondents, Matthiesson, opposed the application on the basis that the tribunal lacked jurisdiction over the matter. The dispute was brought before the Land and Environment Court of New South Wales, where the tribunal had to determine the jurisdiction and the merits of the application.

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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