Parker v Ur Unlimited Resources Pty Ltd - [2024] QCAT 28

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Parker v Ur Unlimited Resources Pty Ltd [2024] QCAT 28

PARTIES:

MARK PARKER AND HELEN MAY PARKER

(applicant)

v

UR UNLIMITED RESOURCES PTY LTD

(respondent)

APPLICATION NO/S:

NDR152-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

24 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The application is dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where applicants’ view is impeded by vegetation on the respondent’s land – where respondent’s vegetation along the common boundary intrudes on the applicant’s land – where respondents have maintained the vegetation by pruning as necessary – whether respondent should be required to remove the vegetation interfering with the applicants’ use of their land – whether severe obstruction of applicants’ view

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

The applicants and the respondent share a common boundary in North Mackay. I shall refer to the applicants’ property as no 121 and the respondent’s as no 119.[1] The applicants’ contend that there is a limited view from their house over nearby parklands, Gooseponds Parkland, to the south.[2] The view is mainly from the upper deck at no 121 which runs along the south-eastern side of the house.
[1]I have not included the street address for privacy purposes.
[2]Map attached to the application filed 17 September 2021
To provide some privacy screening the respondent planted lillypillys along the common boundary to a section at the street end and a section at the rear of the block along the boundary. There is another section of plantings at the rear southeast corner of no 121, some distance from the common boundary. About 24 lillypilly trees have been planted in these three locations.
Over the years the trees have grown to the point where the applicants now say that their view of Gooseponds is obstructed, and the tees interfere with cooling breezes from the south/east in summer. It seems from the application that the applicants requested the respondent to trim the trees in 2020. After that the application was filed. The material suggests, although one cannot be certain because this is not an oral hearing, that work on the trees may have occurred in the intervening period.
In any event the respondent’s representatives, Mrs and Mr Hill, have filed a response contesting the allegations in the application that the trees are at an excessive height, blocking views and obstructing the breeze. Some of the points made by them are:
(a)The type of lillypilly planted is Aussie Southern which grows to a height of about 2 – 4 metres and has a spread of about 2 metres. They are not the Creek Cherry variety, as alleged by the applicant, which can grow much higher to about 6 metres. There is no reason for me not to accept what the Hills say about the variety of the lillypilly.[3]
(b)There has been no real dialogue between the parties about the tree issue.
(c)The trees have been trimmed back which is evident in photographs produced and attached to the response.
(d)The Hills attempted to trim back branches overhanging the boundary but were told not to do so from the applicant’s land in case of an accident. The only access to these overhanging branches is from the applicants’ land.
(e)They will continue to maintain the trees.
[3]It is also consistent with the tree assessors report referred to later in these reasons.
The application is brought under Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA’). The NDA imposes certain obligations on tree keepers being the owners of the freehold land where the trees are located.[4] Here there is no dispute that the trees the subject of the application are located on the respondents’ land, and they are the tree-keepers. Therefore, they are responsible for the trees. The NDA also give the Tribunal broad powers to make orders,[5] in particular:
(a)to prevent serious injury or any harm to any person; or
(b)to remedy, restrain or prevent:
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land.
[4]NDA s 48.
[5]NDA s 66(2)
In considering whether there has been unreasonable interference the Tribunal can have regard to, amongst other things, the size of the applicant’s land and whether the trees were planted before the applicants acquired the land.[6] There is no dispute that the Hills planted the trees. The NDA also imposes an obligation on both parties to take all reasonable steps to resolve the dispute under any relevant local law, local government scheme or local government administrative process.[7] The material filed by both parties demonstrates that over the years there has been little real attempt to resolve the dispute through dialogue.
[6]NDA s 75
[7]NDA s 72
Because of this impasse, the Tribunal ordered that an independent tree assessor be appointed to provide a report to the Tribunal about the trees. A report dated 21 November 2022 has been prepared by Mr Steven Richards which addresses the issues raised by the applicants. That is the interference with view and breeze.
Mr Richards helpfully provided an aerial photo in his report identifying the tree groups of trees. Tree 1 is the group I referred to as being at the street end of the common boundary.[8] Tree 2 is the group of trees planted towards the rear of the common boundary. Tree 3 is planted at the south-eastern corner of the respondent’s land. I should also point out that the row of trees commences about halfway across the block to the respondent’s boundary with no 117. In other words, they are not near or on the common boundary.
[8]I refer to the boundary as the ‘common boundary’ and am cognizant of the survey obtained by the applicants’ and the location of the planting.
Notably the tree height for Tree 1 is 1.5 metre, Tree 2 is 5 metres as is Tree 3. Tree 1 had been dramatically reduced in height at the time of the inspection. They are about 30cm inside the boundary line and there are no overhang branches into the applicants’ property. This group of trees do not cause substantial, ongoing, and unreasonable interference with the applicants’ land.
As for Tree 2, grown to a height of 5 metres, they are similarly positioned about 30cm inside the boundary. Although he referred to a “dividing fence”, there is none and I take him to mean the wall which is serving as such in a practical sense. This (tree) hedge is well maintained. At the time of the report, the aerial shows a large tree growing in the back yard of the applicants’ property, which had been cut back at the time of the application. This tree does, as Mr Richards points out, interfere with the view to Gooseponds in any event.[9]
[9]Richards report page 5
Leaving that to one side, the does make the following comment:
The applicants’ position is that the planting of this hedge has prevented airflow and inhibited a view to a tributary of the Pioneer River and John Breen Memorial Park.
Although the applicants property is positioned higher on the slope of land than the respondent’s. The rear deck of the respondent’s is in a more elevated position and has a clear view to the south-west. Photos taken from this vantage clearly show no view of the river or the park is possible due to all the vegetation that grows on all of the blocks in between.
The current height of Tree 2 from the position of the applicants’ deck would not exceed the roof heights of all the dwellings to the south-west.[10]
[10]Ibid page 4
The applicants are critical of the reference to the Pioneer River and John Breen Memorial Park as their complaint is in relation to not being able to see Gooseponds Parkland. I note that John Breen Memorial Park forms part of Gooseponds Parkland. What Mr Richards was trying to ascertain was, to what extent was the view obstructed by Tree 2.
The survey of the common boundary obtained by the applicants’ establishes the block wall (dividing fence) at the rear of the applicant’s land where Tree 2 (and for that matter Tree 1) is planted is wholly on the applicants’ land. Therefore, they argue that the respondent must maintain the trees to ensure they do not exceed more than 50cm from the true boundary line and not the inside face of the block wall on the applicants’ side. They contend that the lillypillys are overhanging by about 80cm. That may be correct, but the applicants’ main point of contention is the loss of breeze and/or loss of aspect or view. This slight excess overhang, if it exists, does not go to that issue. The respondent has already demonstrated a willingness to maintain the trees and if access is required to no 121, it should be given to resolve this part of the complaint.
As for Tree 3 this group was at or just about at its maximum height. It did not obstruct the view because of vegetation and house roofs between the group and the parkland.
Mr Richards addressed the matters referred to in ss 70 – 75 of the NDA and said that:
Tree No 1 has the capacity to grow to a height that would obscure a view that was existing prior to the planting of the hedge as well as prevent airflow, which is critical in tropical climates for comfort. This front hedge needs to be maintained at a height not exceeding 1.5 metres and formalised to remain so.
Tree No 2 does not directly impede or obscure any view that was observable nor can be discerned. There is a capacity for lateral branches overtime to extend to within the applicants property and this can he be easily managed with normal hedge maintenance. The position of this hedge does not impede airflow any more than surrounding infrastructure and adjacent vegetation.
Tree No 3 has no bearing on the applicant's concerns and no recommendations are necessary.
The recommendation made by Mr. Richards is that there be ongoing hedging work to ensure that vertical branches are maintained 250 centimetres over the common boundary.
This application is really about the loss of a view the applicants say they had of Gooseponds Parklands prior to the planting of the lillypillys. However, their own photographic evidence demonstrates that the tree in their back yard also impedes the view if not fully cut back. Even looking at this photograph, there is only a small portion of clear view in a line from the back corner of their property. Even without the hedge according to what Mr Richards is saying, there would still be some obstruction because of the vegetation growth, and roof lines, between no 121 and Gooseponds Parkland
For the Tribunal to make an order about the hedge, Tree 2, it must be satisfied under s 66(3)(b)(ii) that the trees causing the obstruction are higher than 2.5 metres and that the obstruction is:
severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
In view of Mr. Richards report, the applicant’s response to that report and my own observations of the photographic evidence, I am not satisfied the hedge comprising Tree 2 satisfies s 66(3) of the NDA.
Because the Hills have demonstrated an awareness of the need, and willingness, to maintain all hedges they have planted, I do not propose to make any formal orders.
The application is dismissed.