CT v PC - [2024] QCAT 66

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

CT v PC [2024] QCAT 66

PARTIES:

CT

(applicant)

v

PC

(respondent)

APPLICATION NO/S:

NDR090-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

8 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

1. The Application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – view – whether trees causing a secure obstruction of sunlight on the neighbour’s property - whether trees on the tree keeper’s property obscure a view from the neighbour’s property – whether view existed when the property was purchased by the neighbour – whether severe obstruction of the view

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 45, s 46, s 48, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 75

Belcher v Sullivan [2013] QCATA 304

Finch v Grahle [2017] QCAT 80

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

Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (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 23 July 2021 claiming that:
(a)Trees on the Respondent’s property have caused substantial, ongoing and unreasonable interference with their use and enjoyment of their land due to:
(i)      Severe obstruction of sunlight to the main window of the living area.
(ii)      Obstruction and interruption of access to natural breeze/ventilation.
(iii)     Severe obstruction of view that existed when purchased house.
(iv)     Excessive leaf litter likely to be generated from bamboo plants, likely to affect the outdoor living space within the next 12 months.
(b)The trees are bamboo which were planted on 28 February 2021 by the Respondent to obstruct the view of the retaining wall and fence without notice or consultation with the Applicant.
(c)The Applicant attempted to resolve the dispute by face-to-face meeting, SMS and email correspondence exchanged from 1 March 2021 to 8 April 2021.
(d)Given the growth potential of the bamboo, the trees need to be removed as pruning will be ineffective.
The Applicant sought the following orders:
(i)      To remove the trees.
(ii)      In the alternative, to remove or prune the branches of the trees to 2.5 metres, with maintenance pruning every 6 months to the same level.
(iii)     An order that a person can enter the land to carry out the order.
(iv)     An order that a person can enter the land to obtain a quote to carry out the order.
(v)      An order the Respondent pay the costs for carrying out these orders.
The Respondent lodged a response with the Tribunal on 20 August 2021 stating:
(a)The Respondent denies that the trees currently have any effect on the Applicant’s use or enjoyment of their land, or that…

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 CT v PC

Details

AGLC: CT v PC [2024] QCAT 66
Case: [2024] QCAT 66
Decision Date: 8 February 2024

CaseChat Overview and Summary

In the matter of CT v PC, the applicant sought relief from the Civil and Administrative Tribunal of New South Wales regarding the impact of trees on the respondent's property, which allegedly obstructed sunlight and views from the applicant's property. The applicant contended that the trees caused a severe obstruction of sunlight and view, and that there was an unreasonable interference with the use and enjoyment of their land. The respondent did not file any application or counterclaim, nor was there evidence that the legislative requirements had been complied with.

The primary legal issue before the Tribunal was whether the trees on the respondent's property constituted a severe obstruction of sunlight or view, or caused an unreasonable interference with the applicant's use and enjoyment of their land. The Tribunal had to assess the evidence presented to determine if the applicant's land was affected by the trees to a substantial, ongoing, and unreasonable degree. Given the lack of evidence to support the applicant's claims, the Tribunal found that there was no severe obstruction of sunlight or view, and no unreasonable interference. As a result, the Tribunal could not make any orders to address the alleged interference.

The Tribunal's reasoning was grounded in the absence of substantial evidence supporting the applicant's claims. The Tribunal noted that there were no submissions by either party on costs, and that each party generally bears their own costs unless it is in the interest of justice to make a costs order. Given that the application was unsuccessful and there was no evidence of costs incurred by the respondent, the Tribunal made no order in relation to costs.

The Tribunal ultimately dismissed the application, finding that there was no severe obstruction of sunlight or view, and no unreasonable interference with the applicant's use and enjoyment of their land. The Tribunal ordered that the application is dismissed, and made no orders in relation to costs.

Orders

Orders of the court

1. 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

The Respondent has not filed any application or counter claim in relation to the trees, nor was there any evidence that the legislative requirement has been complied with. As such I can make no finding on this point, and do not consider it a relevant consideration in the determination of the matter. Decision Based on the lack of evidence to support the Applicant's claim that there is a severe obstruction of sunlight or view, or that leaf litter is causing an unreasonable interference, either now or in the next 12 months, I am unable to find that the Applicant’s land is affected by the subject trees due to substantial, ongoing and unreasonable inference with the Applicant’s use and enjoyment of their land.[34] [34]The Act, s 46. As there is no severe obstruction, I am unable to make an order dealing with any interference. There were no submissions by either party on costs and the starting position in the Tribunal is that each party usually bears their own costs, unless it is in the interest of justice to make a costs order.[35] As the application was unsuccessful, it would not be in the interest of justice to make a cost order in favour of the Applicant, and there is no evidence before the Tribunal of any costs incurred by the Respondent, noting the Applicant paid the contribution towards the Tree assessor’s report. Accordingly, I make no order in relation to costs. [35]Ibid, ss 100, 102. For these reasons I refuse to make any orders and I order that the application is dismissed.

Ratio Decidendi

Legal Principle Established

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