Miles v Gough

In the case of Miles v Gough, the applicants, owners of a penthouse apartment in a building, sought to appeal a decision by a Senior Member of the Queensland Civil and Administrative Tribunal. They contended that awnings erected by the first and second respondents, owners of the apartments immediately below, obstructed their view and constituted an unreasonable interference with their use and enjoyment of their property. This contention was made in the context of s 167(b) of the Body Corporate and Community Management Act 1997. The applicants argued that an adjudicator had erred in finding that the awnings did not constitute an unreasonable interference.

The legal issues before the court included whether the Senior Member had erred in law by rejecting the applicants’ contentions regarding the adjudicator's decisions. The applicants argued that the adjudicator had conflated the tests for nuisance and unreasonable interference, conducted a purely quantitative assessment of the impact on their views, and taken into account factors such as local government approval and the reasonableness of the respondents’ actions. Additionally, the applicants argued that the adjudicator failed to consider the availability of reasonable alternatives and did not make a finding on competing valuation evidence. The court had to determine whether the applicants had a reasonable prospect of demonstrating that the Senior Member erred in law and whether leave to appeal should be granted.

The court found that the applicants did not have a reasonable prospect of demonstrating that the Senior Member erred in law. The court held that the Senior Member had properly considered the relevant principles and evidence, and there was no basis for concluding that the Senior Member's decision was flawed. Consequently, the court refused the application for leave to appeal and ordered the applicants to pay costs.

The court's decision underscores the importance of adhering to legal principles and evidence when resolving disputes related to property and interference. The refusal of leave to appeal indicates that the applicants' arguments did not meet the required threshold for demonstrating a legal error by the Senior Member. The court's order for costs also highlights the consequences for unsuccessful appeals in such matters.