Purcell v Challenor

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Purcell v Challenor & Anor [2020] QCAT 372

PARTIES:

ADRIAN JOHN PURCELL

(applicant)

v

SHANA RICKELLE CHALLENOR

MATHEW SCOTT MORAN

(respondents)

APPLICATION NO/S:

NDR246-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

8 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Stroud

ORDERS:

The Respondents are to cut back the bamboo branches that overhang into the Applicant’s property to the common boundary line.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether the neighbour made a reasonable effort to reach agreement with the tree-keeper to give rise to a power to make an order – whether bamboo caused serious damage to the neighbour’s land or property or is likely to cause serious injury – whether the bamboo causes substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land – loss of view – whether view existed at the time the neighbour purchased the property – whether severe obstruction of view caused by bamboo –  whether bamboo causing obstruction of sunlight and breezes to the neighbour’s land.  

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42, s 45, s 46, s 47, s 48, s 49, s 62, s 65,
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

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

Background

1. Since 2013, the Applicant has been and is the registered owner of land in the suburb of Holland Park in Brisbane.  The Respondents are the registered owners of land which was purchased in March 2015. The Applicant’s land sits higher than the Respondents’ land with which it shares a rear common boundary. At the time of purchase, the Applicant’s land had established trees and vegetation which provided a level of privacy between the two properties. In mid to late 2015, the Applicant removed a large number of trees and vegetation on his property, along with the original balcony to his residence. This, according to the Respondents, resulted in a lack of privacy as the Applicant now had full view into their back yard where their young children played regularly. Conversely, the Respondents now had full view of the Applicant’s property and in particular, the area from which the Applicant operated a business which included the regular coming and goings of workers. The Respondents claim that after the removal of the vegetation by the Applicant, the Applicant’s property remained in a state of disrepair for approximately two years.

2. To obtain a level of privacy, the Respondents planted bamboo approximately 0.2 metres from the rear boundary fence. The bamboo has now grown to between six to eight metres in height and some of the branches extend approximately 1.7 metres into the Applicant’s property.

3. Also situated on the Respondents’ land is a mature mango tree located approximately…