Chapman & Chapman v Gravesande - [2022] QCAT 418

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Chapman & Chapman v Gravesande [2022] QCAT 418

PARTIES:

FRANCES THERESE CHAPMAN
PAUL CHAPMAN

(applicants)

v

KAREN LISA GRAVESANDE

(respondent)

APPLICATION NO/S:

NDR135-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

30 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES – DISPUTES BETWEEN NEIGHBOURS – OBSTRUCTION OF VIEW – whether trees causing substantial, ongoing and unreasonable interference with the use and enjoyment of land or property

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 61, s 66, s 71, s 72, s 73, s 75

Laing v Kokkinos (No 2) [2013] QCAT 247

APPEARANCES & REPRESENTATION:

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

BACKGROUND

The applicants own a home at the Gold Coast. The back of their property runs down to a canal. The respondent is their neighbour. Close to the boundary fence, the respondent has a number of mature Golden Cane palms (Dypsis lutescens).
The neighbours have a very poor relationship, and the applicants say that the trees are one source of tension between them. The applicants claim that the trees interfere with their view and obstruct sunlight on their property.
On 20 August 2021, the applicants lodged an application in the Tribunal seeking an order for removal of the trees at the respondent’s cost.
In support of their application, they state:
(a)They are the registered owners of the land affected by the trees;
(b)They have been unsuccessful in their previous attempts to resolve the dispute directly with their neighbours;
(c)The branches and tree trunks intrude into their property by approximately 2.5 metres;
(d)The branches are approximately 1.5 – 7.5 metres above the ground and still growing;
(e)It is possible that a branch could fall on someone on the deck or the walkway. The nuts from the trees are particularly dangerous when walking down the walkway as they can easily cause a person to slip over. They also present a danger when mowing the lawn;
(f)Serious damage to their land or property on the land was likely within the next 12 months because the palm fronds extend over their house and may break a tile or damage the guttering if they fall, and the debris and nuts will block the gutters, leading to internal water damage. They also interfere with the solar panels. The bases of the trees are getting larger as a new trunk grows and it is only a matter of time before they damage the fence and push it over;
(g)Over the past approximately 15 years the situation has been getting worse. The trees are a type where if the trunk is cut down another one will shoot up and as the base of the tree spreads out more trunks will shoot up;
(h)The growth of the trees has significantly interfered with their…

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 Chapman & Chapman v Gravesande

Details

AGLC: Chapman & Chapman v Gravesande [2022] QCAT 418
Case: [2022] QCAT 418
Decision Date

CaseChat Overview and Summary

Chapman & Chapman, the applicants, sought an order for the removal of trees growing on the property of their neighbour, Gravesande, the respondent. The applicants claimed that the trees interfered with their view and obstructed sunlight on their property. The Tribunal was required to decide whether the trees constituted a substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their land. The relevant legislation, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), empowered the Tribunal to make orders to remedy, restrain, or prevent such interference. The Tribunal found that while the trees did obstruct the applicants' view of the canal, this did not constitute a severe obstruction as defined in the Act. The Tribunal also considered the privacy needs of the respondent and the poor relationship between the parties, which had led to the trees being allowed to grow. Given these factors, the Tribunal concluded that the interference was not unreasonable and dismissed the application.

The Tribunal examined the evidence and submissions from both parties, including a tree assessment report. The report noted that the trees were overhanging and obstructing the applicants' view but did not cause severe obstruction or damage. The Tribunal found that the applicants did not have an absolute right to a view, and the obstruction of their view was not severe as they could still enjoy views from other angles. The Tribunal also considered the respondent's need for privacy, especially in light of the poor relationship between the parties. Ultimately, the Tribunal determined that the trees did not cause substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their land, and therefore declined to make any orders regarding the trees. The application was dismissed.

Orders