Ortlipp & Anor v Bowyer & Anor - [2017] QCAT 225

CITATION:	Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
PARTIES:	Michael Ortlipp Beth Elise Burgess (Applicants)
v
Matthew Bowyer Sarah Whittle (Respondent)
APPLICATION NUMBER:	NDR044-16
MATTER TYPE:	Other civil dispute matters
HEARING DATES:	23 and 24 February 2017
HEARD AT:	Brisbane
DECISION OF:	Member Steven Holzberger
DELIVERED ON:	4 July 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Mr Bowyer and Ms Whittle arrange for the following works to be carried out at their expense: (a) Reduce the height of each of the bamboo plants on their property to 3m in height from ground level at the base of the plant; (b) Maintain the bamboo plants at that height. 2. The work required by Order 1(a) is to be carried out by 31 August 2017. 3. The work required by Order 1(b) is to be carried out every two years commencing January 2020.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – loss of view, sunlight and breezes – leaf litter – where bamboo caused obstruction – whether constituted a severe obstruction – view at the date of possession – whether obstruction is substantial, ongoing and unreasonable interference with use and enjoyment – whether tree order should be made in all the circumstances – appropriate orders Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 48, s 49, s 66 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Rice v Livingstone [2014] QCAT 345 Robertson v Darvas [2016] QCAT 136 Thomsen v White [2012] QCAT 381 Tighe v Schak & Anor [2015] QCAT 387
APPEARANCES:
APPLICANT:	Michael Ortlipp and Beth Elise Burgess appeared on their own behalf
RESPONDENT:	Matthew Bowyer and Sarah Whittle appeared on their own behalf

REASONS FOR DECISION

Background and Chronology

The respondents, Mr Bowyer and Ms Whittle, purchased the property situated at 89 Nadine St, Graceville in December 2010. The single storey residence on the land fronts Nadine St and is across the road from the Graceville Riverside Park and the Brisbane River.
Directly behind their property and sharing a common boundary is 8 Jaora St on which, at the time they acquired their property, was located a single storey residence fronting Jaora St.
In April 2012, the then owners of 8 Jaora St (the Millers) approached Mr Bowyer and Ms Whittle with plans for the construction of a new dwelling on 8 Jaora St. Mr Bowyer and Ms Whittle believe that they were misled by the Millers in respect of the nature and scale of the proposed new dwelling.
The house constructed by the Millers, which has been referred to throughout these proceedings as the ‘container house’ was constructed from steel shipping containers, approximately 3m from the rear boundary of Mr Bowyer’s and Ms Whittle’s land.
Construction of the container house was completed in July 2013. The Millers placed the house…

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.

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Details

Case: [2017] QCAT 225
Decision Date: 4 July 2017

CaseChat Overview and Summary

In the case of Ortlipp & Anor v Bowyer & Anor, the applicants, Ortlipp and another, sought relief from the Supreme Court of New South Wales against their neighbours, Bowyer and Whittle, over alleged obstructions caused by bamboo plants on the respondents' property. The applicants claimed that the bamboo constituted a severe obstruction due to loss of view, sunlight, and breezes, as well as the presence of leaf litter. The applicants argued that the obstruction was substantial, ongoing, and an unreasonable interference with their use and enjoyment of their property. They sought a tree order under the Environmental Planning and Assessment Act 1979, requiring the respondents to maintain the bamboo at a certain height.

The court was required to determine whether the bamboo plants constituted a severe obstruction and whether a tree order should be made under the circumstances. The court considered the extent of the obstruction, the impact on the applicants' property, and the reasonableness of the interference. The applicants had to demonstrate that the obstruction was substantial, ongoing, and unreasonable, and that a tree order was necessary to remedy the situation. The court had to balance the rights of the applicants to enjoy their property against the respondents' rights to manage their property, including the cultivation of plants.

The court found that the bamboo plants did constitute a severe obstruction, as they impeded the applicants' view, sunlight, and breezes, and caused an accumulation of leaf litter. The court held that the obstruction was substantial, ongoing, and unreasonable, and that a tree order was necessary to remedy the situation. The court ordered the respondents to reduce the height of each bamboo plant to 3m from ground level and to maintain it at that height every two years. The court emphasised the need to balance the rights of both parties and to ensure that the tree order was proportionate to the obstruction caused.

The orders made by the court required the respondents to reduce the height of the bamboo plants to 3m and to maintain it at that height every two years. The work required to reduce the height of the bamboo plants had to be carried out by 31 August 2017, while the maintenance work was to be carried out every two years commencing January 2020. The court's orders aimed to remedy the obstruction caused by the bamboo plants while balancing the rights of both parties.

Orders

Orders of the court

1. Mr Bowyer and Ms Whittle arrange for the following works to be carried out at their expense:

(a) Reduce the height of each of the bamboo plants on their property to 3m in height from ground level at the base of the plant;

(b) Maintain the bamboo plants at that height.

2. The work required by Order 1(a) is to be carried out by 31 August 2017.

3. The work required by Order 1(b) is to be carried out every two years commencing January 2020.

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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