Hammond v Leighton - [2017] QCAT 178

CITATION:

Hammond v Leighton and Anor [2017] QCAT 178

PARTIES:	Nicolette Marie Hammond (Applicant)
v
Bryan Leighton and Raynor Mary Leighton (Respondent)

APPLICATION NUMBER:

NDR003-17

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

29 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a tree dispute is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – loss of view – where applicant purchased vacant lot – where applicant subsequently built home on the vacant lot – where blocks separated by road – whether severe obstruction of a view, from a dwelling on the neighbour’s land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 46(1)(ii)(C),
s 47(1), s 47(2)(a), s 66(2)(b)(ii), s 66(3)(a),
s 66(3)(b)(ii)

Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120
Jones v Cusack (1992) 109 ALR 313
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271
Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203
Nichol v Campbell [2016] QCATA 204
Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this application about?

Ms Hammond says that trees growing on Mr and Mrs Leighton’s land severely obstruct the view from her dwelling. Ms Hammond has filed an application seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’) for the removal of the trees.
The Leightons’ say that their land does not adjoin Ms Hammond’s land, that their trees do not affect Ms Hammond’s land and that Ms Hammond’s application for a tree dispute should be dismissed.
The Tribunal has directed the parties to file submissions addressing two preliminary issues for determination: does the Tribunal have jurisdiction to hear and determine the application for a tree dispute? Is there a severe obstruction of a view from a dwelling on Ms Hammond’s land that existed when Ms Hammond took possession of the land for the purposes of s 66(3)(b)(ii) of the ND Act?
If the answer to either of these questions is in the negative, I must consider whether it is appropriate to dismiss the application for a tree dispute.

Does the Tribunal have jurisdiction to hear and determine Ms Hammond’s application?

Before considering this issue further, it is appropriate to examine Ms Hammond’s application and submissions and why she says her land is affected by the trees on the Leightons’ land.
Ms Hammond says that her views are obstructed by the trees. She says that the only reason she purchased the land and built her home on the land was to enjoy the views of the coast. In her…

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 Hammond v Leighton

Details

AGLC: Hammond v Leighton [2017] QCAT 178
Case: [2017] QCAT 178
Decision Date: 29 May 2017

CaseChat Overview and Summary

The case of Hammond v Leighton involved a dispute between neighbours concerning the loss of view from a dwelling on the respondent’s property due to the erection of trees by the applicant on a vacant lot they had purchased. The applicant built a home on the lot, which was separated from the respondent’s property by a road. The applicant argued that the trees constituted a severe obstruction of the view from the respondent’s dwelling. The Supreme Court was tasked with determining whether the trees constituted a severe obstruction of the view, warranting the removal or alteration of the trees.

The central legal issues revolved around the interpretation and application of the provisions within the relevant tree protection legislation, particularly those concerning disputes between neighbours. The court had to consider the nature of the obstruction, the extent of the impact on the respondent’s view, and whether the obstruction was severe enough to warrant the removal or alteration of the trees. Furthermore, the court needed to assess the evidence provided by both parties regarding the impact of the trees on the view from the respondent’s property.

The court thoroughly examined the evidence and arguments presented by both parties. It found that while there was some impact on the view from the respondent’s property, it did not amount to a severe obstruction as defined by the relevant legislation. The court emphasised the importance of the evidence demonstrating the extent of the impact on the view, concluding that the trees did not constitute a severe obstruction. Consequently, the application for the removal or alteration of the trees was dismissed.

No further orders were made by the court beyond the dismissal of the application for a tree dispute. The court’s decision was based on the evidence provided and the interpretation of the relevant legislation, affirming that the trees did not constitute a severe obstruction of the view from the respondent’s property.

Orders

Orders of the court

1. The application for a tree dispute 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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