QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Collyer v Daniells [2024] QCAT 229 PARTIES: PETER COLLYER
(applicant)v MARGARET DANIELLS
(respondent)APPLICATION NO/S: NDR187-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 30 May 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member D Brown ORDERS: The Application is dismissed. CATCHWORDS
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – whether trees on the tree keeper’s property obscure a view from the neighbour’s property that existed at time of purchases – where original house demolished and new house built – whether obstruction of view was a substantial, ongoing and unreasonable interference of the neighbour’s use of their property.
Neighbourhood Disputes (Dividing Fences and Trees) Act
2011 (Qld)
Queensland Civil and Administrative Tribunal Act 2009
(Qld)Belcher v Sullivan [2013] QCATA 304
Finch v Grahle [2017] QCAT 80
Haindl v Daisch [2011] NSWLEC 1145
Laing v Kokkinos (No 2) [2013] QCAT 247
Neverfail Pty Ltd as Trustee for The Harris Siksna Family
Trust & Anor v Radford [2016] QCATA 203
Tenacity Consulting v Warringah [2004] NSWLEC 140Vecchio v Papavasiliou [2015] QCAT 70 APPEARANCES & This matter was heard and determined on the papers REPRESENTATION: pursuant to s 32 of the Queensland Civil and Administrative
Tribunal Act 2009 (Qld)REASONS FOR DECISION
The applicant and respondent are neighbours sharing a dividing fence between the two properties. The applicant lodged an application in this Tribunal on 17 November 2021 claiming that:
(a) The subject trees on the respondent’s property, being gold cane palms, have caused substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of their land due to the trees severely obstructing a view that existed when they purchased the house in 1997. (b) The applicant attempted to resolve the dispute by having discussions with the respondent and respondent’s daughter in or around July 2020 and sending a letter on 30 July 2020. The applicant’s wife also had a discussion with the respondent’s daughter about the issue on 6 June 2021.
The applicant sought the following orders:
(a) To remove or prune branches. (b) That there be yearly maintenance to maintain the trees at a maximum height of 5 metres. (c) That any branches or roots that are pushing the fence over be removed.
The respondent lodged a response with the Tribunal on 4 February 2022 stating:
(a) They deny that the trees have any effect on the applicant’s use or enjoyment of their land as the subject trees are not causing a severe obstruction to sunlight or views. (b) The original dwelling from when the house was purchased in 1997 was demolished by the applicant in September 2017 and replaced with a dwelling that is a substantially different in structure, height and position which reduced the views. The new dwelling is closer to the respondent’s back fence, and lower in profile. (c) The applicant’s view has changed over 25 years, mostly due to their own actions in…
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Details
- AGLC
- Collyer v Daniells [2024] QCAT 229
- Case
- [2024] QCAT 229
- Decision Date
CaseChat Overview and Summary
The case of Collyer v Daniells involved a dispute between neighbours regarding the growth of trees on the respondent's property, which the applicant claimed obscured a view from their property that existed at the time of purchase. The applicant argued that the respondent's Golden Cane palm trees interfered with their use and enjoyment of their land, particularly their view from the deck of their new house. The dispute came before the tribunal, which was required to determine whether the trees on the respondent's property were causing a severe obstruction of the applicant's view that existed at the time of purchase and, if so, whether such obstruction constituted a substantial and unreasonable interference with the applicant's use and enjoyment of their land.
The tribunal considered the evidence presented and the relevant legal principles, including the standard of proof required, which was the balance of probabilities, albeit to a sliding scale. The tribunal found that the evidence did not establish that the trees on the respondent's property were causing a severe obstruction of the applicant's view that existed at the time of purchase. Even if the obstruction of the view caused by the trees could be found to be severe, the tribunal was not persuaded that the obstruction, when considered objectively, was a significant and unreasonable interference with the use and enjoyment of the applicant's land. The tribunal concluded that it could not make any orders for a remedy for interference unless it found that the tree affected the neighbour's land in accordance with section 66(2) of the Act.
In light of the above findings, the tribunal dismissed the applicant's application and made no orders. The tribunal found that the applicant had not established that the trees on the respondent's property were causing a severe obstruction of their view that existed at the time of purchase or that such obstruction constituted a substantial and unreasonable interference with their use and enjoyment of their land. The tribunal was unable to make any orders for a remedy for interference, as the evidence did not support such a finding. Therefore, the application was dismissed, and no orders were made in relation to the subject trees.
The tribunal considered the evidence presented and the relevant legal principles, including the standard of proof required, which was the balance of probabilities, albeit to a sliding scale. The tribunal found that the evidence did not establish that the trees on the respondent's property were causing a severe obstruction of the applicant's view that existed at the time of purchase. Even if the obstruction of the view caused by the trees could be found to be severe, the tribunal was not persuaded that the obstruction, when considered objectively, was a significant and unreasonable interference with the use and enjoyment of the applicant's land. The tribunal concluded that it could not make any orders for a remedy for interference unless it found that the tree affected the neighbour's land in accordance with section 66(2) of the Act.
In light of the above findings, the tribunal dismissed the applicant's application and made no orders. The tribunal found that the applicant had not established that the trees on the respondent's property were causing a severe obstruction of their view that existed at the time of purchase or that such obstruction constituted a substantial and unreasonable interference with their use and enjoyment of their land. The tribunal was unable to make any orders for a remedy for interference, as the evidence did not support such a finding. Therefore, the application was dismissed, and no orders were made in relation to the subject trees.
Orders
Orders of the court
The Application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the circumstances it would not seem unreasonable for the respondent to allow her Golden Cane palm trees to grow to create privacy from the neighbour’s larger deck. It is noted that the trees on the applicant’s property appear to be grown to the same height or higher, potentially for the same reason to provide privacy. Decision The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. According to Justice Dixon in Briginshaw v Briginshaw[37] “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. [37] (1938) 60 CLR 336, at 362. Taking into consideration the whole of the evidence, including weighing the issues in terms of evidencing the extent to which the loss of the pre-existing view is caused by the subject trees given the other factor in relation to the development of the new property and lack of clarity as to where the old landing would now be and the impact of the applicant’s own trees on the view; and the nature of the view that the applicant would have without the trees being present which is one which extends over dense housing; and weighing the matters in sections 73 and 75 of the Act, I am not persuaded or satisfied on the evidence that it is established that the trees are causing a severe obstruction of the applicant’s view which existed at the time of purchase. In addition, even if the obstruction of the view caused by the tree could be found to be severe, I am not persuaded on the evidence that the obstruction, while ongoing, is, when considered objectively, a significant and unreasonable interference with the use and enjoyment of the applicant’s land. The Tribunal cannot make any orders for a remedy for interference unless it finds that the tree affects the neighbour's land in accordance with section 66(2). That is, the Tribunal cannot make any order for remedy where it has found that ongoing interference is not substantial or unreasonable. I am therefore unable to make an order in relation to the subject trees. For these reasons I refuse to make any orders and I dismiss the application.
Ratio Decidendi
Legal Principle Established
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