Van Bovene v Gay

[2024] QCAT 319

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Van Bovene v Gay [2024] QCAT 319

PARTIES:

JOHANNESS CORNELIUS VAN BOVENE

(Applicant)

v

TAUBIN GAY

(Respondent)

APPLICATION NO/S:

NDR007-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 July 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor

ORDERS:

1. It is declared that, for the purposes of s 46(a)(ii)(C) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the applicant’s land, described as Lot 4 on SP 299107 Title Reference 51175953, is not land which is affected by a substantial, ongoing, and unreasonable interference with his use and enjoyment of that land, by one or more trees which are presently located on the respondent’s adjoining land, described as Lot 42 on RP 14173 Title Reference 50745168.

2. Pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the applicant’s Application for a Tree Dispute filed 17 January 2023 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a row of trees are located on the respondent’s side of a common boundary with community title scheme land – where the trees were planted on the respondent’s land before the building which is part of the community title scheme was constructed - where the applicant is a lot owner within that scheme land – where the applicant is also the body corporate committee chairman - where the applicant asserts a loss of view from his lot which is said to have existed when he acquired the lot, such loss caused by the trees - where the applicant asserts substantial interference of the use and enjoyment of the scheme land, and branches overhanging the scheme land, such interference caused by the trees – where the question of whether there is a substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant’s land was to be determined as a preliminary matter

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – POWER TO SUE AND BE SUED - where a row of trees are located on the respondent’s side of a common boundary with community title scheme land – where the trees were planted on the respondent’s land before the building which is part of the community title was constructed - where the applicant is a lot owner within that scheme land – where the applicant is also the body corporate committee chairman – where the applicant asserts substantial interference of the use and enjoyment of the scheme land, and branches overhanging the scheme land, said to be caused by the trees – where the applicant also asserts a loss of a view from his lot caused by the trees - whether the applicant is empowered to conduct the proceeding on behalf of the body corporate of the community title scheme

Body Corporate and Community Management Act 1997 (Qld), s 100, s 311, s 312