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
Continue reading Van Bovene v Gay
Sign in free to access the full text
- AGLC
- Van Bovene v Gay [2024] QCAT 319
- Case
- [2024] QCAT 319
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to decide were whether the applicant had standing to bring the proceeding on behalf of the body corporate, and whether the trees caused a substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant's lot. The court held that the applicant did not have standing to bring the proceeding on behalf of the body corporate, as the power to sue and be sued in relation to the community title scheme was vested in the body corporate and not in the applicant as an individual or as the body corporate committee chairman. The court also found that the applicant's lot was not affected by a substantial, ongoing, and unreasonable interference with his use and enjoyment caused by the respondent's trees.
Accordingly, the court dismissed the applicant's proceeding. The court held that the applicant had not established that the trees caused a substantial, ongoing, and unreasonable interference with the use and enjoyment of his lot. The court noted that the applicant had not demonstrated that the trees had caused any actual harm or damage to his lot, and that the loss of view from his lot was not a substantial interference with his use and enjoyment of the lot. The court further held that the branches overhanging the scheme land were not substantial, ongoing, and unreasonable interferences with the use and enjoyment of the scheme land.
The court made a declaration that the applicant's lot was not affected by a substantial, ongoing, and unreasonable interference with his use and enjoyment caused by the respondent's trees. The court also dismissed the applicant's proceeding for a Tree Dispute.
Orders
Orders of the court
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.
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.