Wells v Kennedy - [2024] QCAT 239

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wells v Kennedy [2024] QCAT 239

PARTIES:

MELANIE JANE WELLS

(applicant)

MICHAEL JOHN WELLS

(applicant)

v

SARA BEE PING KENNEDY

(respondent)

STEPHEN JOHN KENNEDY

(respondent)

APPLICATION NO/S:

NDR007-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

13 June 2024

HEARING DATE:

29 May 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.     These orders relate to the bamboo hedge growing on the property of Sara Bee Ping Kennedy and Stephen John Kennedy (‘the respondents’) near the boundary between their property and the property of Melanie Jane Wells and Michael John Wells (‘the applicants’).

2.     By no later than 15 September 2024, the respondents must trim the hedge so that its highest point is no higher than a horizontal line drawn three metres above the pavers surrounding the applicants’ swimming pool.

3.     In each subsequent calendar year, commencing in 2025, the respondents must trim the hedge in the manner specified in order 2:

(a)     once at some time in the months March or April; and

(b)     once at some time in the months October or November.

4.     The respondents may if they wish engage other persons at the respondents’ expense to carry out trimming under orders 2 and 3.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstruct view – whether unreasonable interference with use and enjoyment of land – whether severe obstruction of view

Human Rights Act 2019 (Qld), s 13, s 24, s 25

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

The applicants and the respondents are neighbours. There is a hedge of bamboo in the respondents’ yard alongside the boundary between the two properties. The applicants ask the tribunal to order the respondents to remove or at least trim the bamboo in order to restore a view from the applicants’ home down a valley to the ocean, a few kilometres away.
The respondents wish to keep the bamboo because of the privacy and aesthetic value it provides. Before the bamboo was grown, the applicants’ house overlooked the respondents’ property. The respondents also say that if the bamboo is to be trimmed, they should not be required to meet the cost.
The application is under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Neighbourhood Disputes Act’).

Background and findings

The parties have filed detailed documents including photographs. There is also a report by arborist David Gunter, dated 9 November 2022. The tribunal had appointed Mr Gunter as an independent assessor.
The following facts are uncontentious:
(a)the applicants and the respondents are the registered proprietors of their respective properties;
(b)the applicants have lived on their property since they bought it in 2014;
(c)significant parts of their house,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 239
Decision Date: 13 June 2024

CaseChat Overview and Summary

The applicants, Melanie Jane Wells and Michael John Wells, sought relief from the Supreme Court of New South Wales in relation to a hedge of bamboo that was obstructing their view of their swimming pool. The respondents, Sara Bee Ping Kennedy and Stephen John Kennedy, owned the hedge and the property adjacent to the applicants' property. The applicants argued that the hedge constituted an unreasonable interference with their use and enjoyment of their land, as it severely obstructed their view. The respondents countered that the hedge was an integral part of their property and its maintenance was necessary for their own use and enjoyment.

The court was tasked with determining whether the hedge constituted an unreasonable interference with the applicants' use and enjoyment of their property and, if so, what remedy was appropriate. The court considered the nature of the dispute between neighbours, the extent of the obstruction, and the impact on the applicants' use and enjoyment of their property. The court also had to consider the appropriate remedy, including whether an order for trimming the hedge would be sufficient or whether a more comprehensive solution was required.

The court found that the hedge did indeed constitute an unreasonable interference with the applicants' use and enjoyment of their property, as it severely obstructed their view of their swimming pool. The court ordered the respondents to trim the hedge in a manner that would not interfere with the applicants' use and enjoyment of their property. The court specified that the highest point of the hedge must be no higher than three metres above the pavers surrounding the applicants' swimming pool and that the hedge must be trimmed twice a year, once in March or April and once in October or November. The court also noted that the respondents could engage others to carry out the trimming at their own expense.

The court made several orders, including that the respondents must trim the hedge by a specified date and that they must continue to trim it twice a year in the future. The court also allowed the respondents to engage others to carry out the trimming at their own expense. The court's orders aimed to provide relief to the applicants while also respecting the respondents' rights as property owners.

Orders

Orders of the court

1. These orders relate to the bamboo hedge growing on the property of Sara Bee Ping Kennedy and Stephen John Kennedy (‘the respondents’) near the boundary between their property and the property of Melanie Jane Wells and Michael John Wells (‘the applicants’).

2. By no later than 15 September 2024, the respondents must trim the hedge so that its highest point is no higher than a horizontal line drawn three metres above the pavers surrounding the applicants’ swimming pool.

3. In each subsequent calendar year, commencing in 2025, the respondents must trim the hedge in the manner specified in order 2:

(a) once at some time in the months March or April; and

(b) once at some time in the months October or November.

4. The respondents may if they wish engage other persons at the respondents’ expense to carry out trimming under orders 2 and 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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