Prince v Clark - [2020] QCAT 177

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Prince & Anor v Clark & Anor [2020] QCAT 177

PARTIES:
RUSSELL JOHN PRINCE

NOREEN ANN PRINCE

(applicants)

v

DARRYL NICHOLAS CLARK

MENGYUAN LIU

(respondents)

APPLICATION NO/S:

NDR 231-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 May 2020

HEARING DATE:

17 April 2020

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

The Application is dismissed.

CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstruct a view from a dwelling – where no dwelling existed on the neighbour’s land when the neighbour took possession of the land – where dwelling later constructed - where there is a concern as to bamboo rhizomes travelling into neighbour’s land but no assertion of damage or possible damage – whether neighbour is entitled to an order that the tree-keeper remove the trees or maintain them at a particular height

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 62, s 66

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Kent v Johnson (1973) 21 FLR 177

Calvisi v Brisbane City Council (2008) 1 PDQR 374
Laing v Kokkinos (No 2) [2013] QCATA 247
Vecchio v Papavasiliou [2015] QCAT 70
Bull & Anor v Matthiesson & Anor [2019] QCAT 316

Bose v Weir [2020] QCATA 7

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented, R Prince

Respondents:

Self-represented, D Clark

REASONS FOR DECISION

Woree is a residential suburb of Cairns to the south of the central business district. Within it, from the foothills of the mountain ranges behind Cairns, one may enjoy expansive views of Trinity Inlet to the east, the city to the north and the Coral Sea beyond, and the mountain ranges to the south and west.
In November 2011, the Applicants purchased a vacant allotment within that residential area. They did so for the purposes of constructing a house in which to live from where they could enjoy such views. The land they purchased shares a common boundary with the land upon which the Respondents then resided. The Respondents’ land is said to be approximately eight metres below the Applicants’ land on the southern side of the downhill slope. At the time of purchase the views were not restricted.
On or about 2 May 2012 the Applicants commenced construction of their house. At about the same time, the Respondents planted bamboo along the western boundary of their land, said to be for the purposes of giving them shade from the western sun. That western boundary runs perpendicular and away from the common boundary shared with the Applicants. That bamboo is said to be now approximately 15 m in height. The Applicants’ complaint is that it severely restricts their views to the south. They also express a concern that the rhizomes from that bamboo will eventually invade their land. They have made an application to this Tribunal seeking an order that the bamboo either be cut down to no more than 2.5 m…

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 Prince v Clark

Details

AGLC: Prince v Clark [2020] QCAT 177
Case: [2020] QCAT 177
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the case of Prince v Clark, the plaintiff, Prince, sought an order for the defendant, Clark, to remove or maintain certain trees at a particular height, claiming they obstructed the view from his dwelling. The trees in question were located on Clark’s land, which he purchased without any pre-existing dwelling structures. After Clark built his house, he became aware of the obstruction caused by the trees on Prince’s property. Clark contended that the trees were protected under relevant legislation, and any action taken against them would infringe upon his property rights. The court was required to determine whether Prince had a legitimate claim for relief regarding the trees that obstructed his view, considering the timeline of events and the legislative protections in place.

The primary legal issue was whether Prince's right to an unobstructed view was recognised under the relevant legislation, given that the trees were already established before Prince built his dwelling. The court also had to consider if the absence of a dwelling at the time Clark purchased the property affected the enforceability of any claim for relief. Furthermore, the court needed to assess the significance of potential damage from bamboo rhizomes travelling into Prince’s land, despite no actual damage being asserted. The case hinged on the interpretation of legislation protecting trees and vegetation, as well as the applicability of these protections in the context of Prince’s delayed claim.

The court found that the absence of a dwelling at the time Clark took possession of the land meant that Prince's right to an unobstructed view was not established at the critical time. The court held that the legislative protections for trees and vegetation applied, and Prince's claim did not meet the criteria for an order compelling Clark to remove or alter the trees. The court emphasised that the absence of any asserted damage from the bamboo rhizomes further weakened Prince's case. Consequently, the court dismissed Prince's application, upholding Clark's rights under the relevant legislation.

The court's final order was that the application by Prince to compel Clark to remove or maintain the trees at a particular height was dismissed. The court found no grounds for interference with Clark’s rights to his property, including the trees in question. This decision reinforces the importance of the timeline of events and the established legislative protections in disputes between neighbours over trees and vegetation.

Orders

Orders of the court

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

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Ratio Decidendi

Legal Principle Established

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