Timmer v Seeto

[2017] QCAT 62

CITATION:

Timmer v Seeto [2017] QCAT 62

PARTIES:

Lodewijk Timmer
(Applicant)

v

Nathan Seeto
Pamela Seeto

(Respondent)

APPLICATION NUMBER:

NDR059-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

15 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The application filed 1 April 2016 is dismissed.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE – TREE
DISPUTE – Where bamboo planted on boundary of three properties – where there was no house when applicant’s property purchased – where leaf litter damage, loss of sunlight and view alleged – whether trees were causing substantial, ongoing and unreasonable interference – whether view could be obstructed where no house when property purchased – whether bamboo ought to be trimmed or removed

Neighbourhood Disputes (Dividing Fences and
Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52,
s 65, s 66, s 67, s 71, s 72, s73, s75, s 76
Queensland Civil and Administrative Tribunal

Act 2009 (Qld), s 100, s 102, s 107

Thomsen v White [2012] QCAT 381

Dooley & Anor v Nevell [2007] NSWLEC 715

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Vecchio v Papavasiliou [2015] QCAT 70

Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203

Nichol v Campbell [2016] QCATA 204

APPEARANCES:

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

REASONS FOR DECISION

1. Lodewijk Timmer and Nathan and Pamela Seeto are neighbours.  Mr and Mrs Seeto have planted a large clump of bamboo (Bambusa Ventricosa  - commonly called “Buddha Belly) on their fenceline. It is currently between 9 and 11 meters high.

2. Mr Timmer filed an application in QCAT on 1 April 2016 seeking to have the bamboo removed.

3. Mr Timmer says the bamboo stops the view and sunshine to his garden and produces substantial  leaf litter for him and his neighbours.  Mr Timmer also wants to prevent further damage to fences.

4. Mr and Mrs Seeto have filed no material in response to this application and did not attend the conciliation conference ordered by the tribunal.  In effect, they have decined to take part in the proceedings, despite being appropriately notified of the application and consequential orders of the tribunal.

5. In support of his application, Mr Timmer filed a site visit report by Mr Gunter of TPZ Project Arborists.  Mr Gunter says:

   ·       the bamboo is a Buddha Belly variety;.

   ·       The purchase of the property would be greatly influenced by the view and that the view is significantly obstructed by the bamboo;

   ·       The bamboo would cause shade to the west during the morning and that the shade will likely affect the amount of light that reaches the first floor bathroom;

   ·       Clumps of the bamboo have spread under the fence to neighbouring properties and that this will likely continue to occur as the bamboo…