Campbell v RPD Qld Pty Ltd

CITATION:

Campbell v RPD Qld Pty Ltd [2017] QCAT 82

PARTIES:

Penelope Anne Campbell
(Applicant)

v

RPD QLD Pty Ltd

(Respondent)

APPLICATION NUMBER:

NDR150-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

12 August 2016 with final submissions 14 October 2016

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

9 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES VEGETATION AND HABITAT PROTECTION –DISPUTES BETWEEN NEIGHBOURS – where neighbour’s and tree-keeper’s lots separated by another lot – whether land separated by a road – whether land adjoins – where claim of obstruction of views – where view from extension to building – whether constitutes interference by obstruction of a view that existed when the neighbour took possession of the land

Neighbourhood Disputes (Dividing Fences  and Trees) Act 2011 (Qld), s 46, s 59, s 61, s 62, s 65, s 66, Schedule Dictionary

Schubert v Lee (1946) 71 CLR 589
Mahoney v Corrin [2013] QCAT 318
Bell v Griffiths [2013] QCAT 655
Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES:

APPLICANT:

Ms Penelope Anne Campbell

RESPONDENT:

MS Michelle Catelan, director appeared for RPD Qld Pty Ltd

REPRESENTATIVES:

APPLICANT:

Mrs Campbell was self-represented

RESPONDENT:

RPD Qld Pty Ltd represented by Mr Dillon of Counsel instructed by Merthyr Law

REASONS FOR DECISION

Introduction

1. Mrs Campbell (neighbour) is the owner of land at 115 Adelaide Street East Clayfield. Her land is next door to that owned by RPD QLD at 123 Adelaide Street, Clayfield. The land at 123 Adelaide Street East is occupied by Ms Michelle Catelan the director of RPD Qld. She alleges that trees growing on RPD QLDs (tree-keeper) land are interfering with her views and has applied to the Tribunal for orders that the trees owned by RPD QLD be trimmed to a level which will ensure that those views are reinstated.

2. The Tribunal has jurisdiction to hear such applications under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011(Qld) (ND Act). The requirements of the ND Act include that a neighbours land is affected by a tree[1]. Land may be affected in various ways including as alleged in this case substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land by the obstruction of a view.

   [1]ND Act, s 46 and s 59.

Does the land adjoin?

1. For land to be affected by a tree it must adjoin the land on which the trees is situated or would adjoin the land on which the tree is situated if it were not separated by a road.[2].

   [2]ND Act, s 46(b).

2. RPD Qld’s counsel made submissions at the hearing that Mrs Campbell’s land did not adjoin that of RPD Qld because the land was separated by a private driveway which services 115, 117 and 119 Adelaide Street East and Mrs Campbell does not own the land on which the driveway is located although her property does have the benefit of an easement over it. The driveway is not…