Timmer v Seeto

Case [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…

Continue reading Timmer v Seeto

Sign in free to access the full text

Details
AGLC
Timmer v Seeto [2017] QCAT 62
Case
[2017] QCAT 62
Decision Date

CaseChat Overview and Summary

The case of Timmer v Seeto involved a dispute over the maintenance and management of a bamboo plant located on the boundary of three properties. The applicant, Timmer, had purchased the property in question and alleged that the bamboo, which had been planted by the previous owner, was causing substantial, ongoing, and unreasonable interference. The issues included whether the bamboo was causing substantial, ongoing, and unreasonable interference with the applicant's use and enjoyment of the property, and whether the view could be obstructed when there was no house on the property at the time of purchase. Additionally, the court considered whether the bamboo should be trimmed or removed.

The court examined the nature of the interference caused by the bamboo, including the loss of sunlight and the accumulation of leaf litter. The court also considered the fact that there was no house on the property when it was purchased, and therefore whether the view could be obstructed. The court needed to decide whether the interference was substantial, ongoing, and unreasonable, and whether the bamboo should be trimmed or removed. The court also needed to determine whether the interference was substantial enough to justify the removal or trimming of the bamboo.

The court concluded that the interference caused by the bamboo was not substantial, ongoing, and unreasonable. The court found that the applicant had purchased the property knowing that there was a bamboo plant on the boundary, and that the interference was not significant enough to warrant the removal or trimming of the bamboo. The court also found that the view could not be obstructed as there was no house on the property when it was purchased. Therefore, the court dismissed the application filed by the applicant on 1 April 2016.

Orders

Orders of the court

1. The application filed 1 April 2016 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.