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Hammond v Leighton[2017] QCAT 178

CITATION:

Hammond v Leighton and Anor [2017] QCAT 178

PARTIES:

Nicolette Marie Hammond

(Applicant)

v

Bryan Leighton and Raynor Mary Leighton

(Respondent)

APPLICATION NUMBER:

NDR003-17

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

29 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for a tree dispute is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – loss of view – where applicant purchased vacant lot – where applicant subsequently built home on the vacant lot – where blocks separated by road – whether severe obstruction of a view, from a dwelling on the neighbour’s land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 46(1)(ii)(C), s 47(1), s 47(2)(a), s 66(2)(b)(ii), s 66(3)(a), s 66(3)(b)(ii)

Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120

Jones v Cusack (1992) 109 ALR 313

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

Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271

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

Nichol v Campbell [2016] QCATA 204

Vecchio v Papavasiliou [2015] QCAT 70

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

What is this application about?

  1. [1]
    Ms Hammond says that trees growing on Mr and Mrs Leighton’s land severely obstruct the view from her dwelling. Ms Hammond has filed an application seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’) for the removal of the trees.
  2. [2]
    The Leightons’ say that their land does not adjoin Ms Hammond’s land, that their trees do not affect Ms Hammond’s land and that Ms Hammond’s application for a tree dispute should be dismissed.
  3. [3]
    The Tribunal has directed the parties to file submissions addressing two preliminary issues for determination: does the Tribunal have jurisdiction to hear and determine the application for a tree dispute? Is there a severe obstruction of a view from a dwelling on Ms Hammond’s land that existed when Ms Hammond took possession of the land for the purposes of s 66(3)(b)(ii) of the ND Act?
  4. [4]
    If the answer to either of these questions is in the negative, I must consider whether it is appropriate to dismiss the application for a tree dispute.

Does the Tribunal have jurisdiction to hear and determine Ms Hammond’s application?

  1. [5]
    Before considering this issue further, it is appropriate to examine Ms Hammond’s application and submissions and why she says her land is affected by the trees on the Leightons’ land.
  2. [6]
    Ms Hammond says that her views are obstructed by the trees. She says  that the only reason she purchased the land and built her home on the land was to enjoy the views of the coast. In her submissions, Ms Hammond says that she purchased the land in 2001 and built her home in 2002. She says that at the time she built the home her views were unobstructed.[1] 
  3. [7]
    It is not controversial that the trees, the subject of the dispute, are situated on land of which the Leightons are the registered owners. The Leightons are tree keepers[2] and Ms Hammond is a neighbour for the purposes of the ND Act.[3]
  4. [8]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, at the date of the application to QCAT, land is affected by the tree.[4]  Ms Hammond alleges that her land is affected by the trees on the Leightons’ land.
  5. [9]
    Whether Ms Hammond’s land is affected by a tree requires a consideration of s 46 of the ND Act. Section 46 provides:

Land is affected by a tree at a particular time if—

(a) any of the following applies—

(i) branches from the tree overhang the land;

(ii) the tree has caused, is causing, or is likely within the next 12 months to cause—

(A) serious injury to a person on the land; or

(B) serious damage to the land or any property on the land; or

(C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

(b) the land—

(i) adjoins the land on which the tree is situated; or

(ii) would adjoin the land on which the tree is situated if it were not separated by a road.

  1. [10]
    Ms Hammond’s property is described as lot 230 on Survey Plan 115740. The Leightons’ property is described as lot 172 on Survey Plan 115740. A copy of the survey plan has been filed.[5] But for the presence of a road, lots 230 and 172 would adjoin. I am satisfied that Ms Hammond’s land and the Leightons’ land would adjoin if the lots were not separated by a road.
  2. [11]
    Ms Hammond relies upon s 46(a)(ii)(C) and says that the trees on the Leightons’ land cause a substantial, ongoing and unreasonable interference with her use and enjoyment of her land.  The interference complained of is what Ms Hammond says is the severe obstruction of a view.
  3. [12]
    If a tree is affecting a neighbour’s land, s 66(2)(b)(ii) empowers the Tribunal to make appropriate orders to remedy, restrain or prevent a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. Section 66(2)(b)(ii) mirrors s 46(a)(ii)(C) although the latter provision is limited to the neighbour’s use and enjoyment of their land whereas the former provision is not so limited.
  4. [13]
    The power of the Tribunal to make orders about a substantial, ongoing and unreasonable interference that is an obstruction of sunlight or a view is circumscribed by s 66(3). An order to remedy, restrain or prevent an obstruction of a view can only be made if the Tribunal is satisfied that the tree rises at least 2.5 metres above the ground[6] and the obstruction is a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.[7]
  5. [14]
    The nature of the interference referred to in s 46(a)(ii)(C) is not defined or otherwise limited in any way in contrast to s 66(3) which limits the circumstances in which an order addressing a claimed interference with sunlight or a view can be made.
  6. [15]
    The Tribunal has jurisdiction to hear and decide an application for a tree dispute where it is claimed that a tree obstructs sunlight or a view and thereby affects a neighbour’s land. The Tribunal has jurisdiction to hear and decide Ms Hammond’s application.

Is there a severe obstruction of a view from a dwelling on Ms Hammond’s land for the purposes of s 66(3)(b)(ii) of the ND Act?

  1. [16]
    As I have observed, the orders the Tribunal may make where it is claimed that the interference caused by a tree is an obstruction of sunlight or of a view, are strictly circumscribed by s 66(3).
  2. [17]
    A severe obstruction for the purposes of s 66(3)(b)(ii) is a jurisdictional fact. The absence of a finding of such an obstruction will invalidate an order made under s 66 of the ND Act.[8] A jurisdictional fact is a criterion the satisfaction of which enlivens the exercise of a statutory power or discretion.[9]
  3. [18]
    The Tribunal has previously considered the meaning of s 66(3)(b)(ii). In Vecchio v Papavasiliou,[10] the Tribunal held:

There is no general right to a view in Queensland7. The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011(Qld) creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. Section 66(3)(b)(ii) creates a right to a view from a dwelling (my emphasis) that existed at the time the neighbour took possession of the land. If there was no dwelling at the time the neighbour took possession of the land, then there was no view that is protected by the Act.

Therefore, when Mr Vecchio took possession of the land, because there was no house, there was no view capable of protection. Mr Vecchio cannot now seek the tribunal’s assistance to reclaim a view he never had.

  1. [19]
    The Tribunal has subsequently affirmed the correctness of the approach in Vecchio in interpreting s 66(3)(b)(ii).[11] Ms Hammond urges a different interpretation of s 66(3)(b)(ii).
  2. [20]
    Ms Hammond says that s 66(3)(b)(ii) does not require the presence of a dwelling on the neighbour’s land when the neighbour takes possession of the land. She says that the view that existed when a neighbour took possession of land can be one from a vacant allotment and that the obstruction of a view for the purposes of s 66(3) is the view from a dwelling subsequently constructed on the land.
  3. [21]
    This interpretation was rejected by the Appeal Tribunal in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford.[12] Ms Hammond seeks to distinguish Neverfail. She says that in Neverfail the Tribunal was considering a view that existed when a neighbour took possession of land on which there was an unrenovated house and the obstruction of a view from the substantially renovated house.
  4. [22]
    In Neverfail the Appeal Tribunal held that the correct interpretation of s 66(3)(b)(ii) was that adopted in Vecchio and that what the section requires is a comparison between the same two (or more) viewing points – the view that existed when the neighbour took possession of the land and that said to be presently obstructed. This comparison, and the process identified by then President Wilson in Laing & Anor v Kokkinos & Anor (No 2),[13] approved in Neverfail, cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the dwelling, at the time of the hearing.[14]
  5. [23]
    There was no dwelling on Ms Hammond’s land when she took possession of the land. Accordingly, Ms Hammond cannot establish the severe obstruction of a view from a dwelling on her land when she took possession of the land. Ms Hammond cannot establish the jurisdictional fact required by s 66(3)(b)(ii) of the NDA.

What is the appropriate order?

  1. [24]
    What is the appropriate order for the Tribunal to make?
  2. [25]
    The Tribunal may strike out or dismiss a proceeding which the Tribunal considers is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.[15] 
  3. [26]
    The application by Ms Hammond is ultimately futile. She cannot establish the jurisdictional fact necessary for an order under s 66 of the NDA to be made. A proceeding is vexatious if it is productive of serious and unjustified trouble and harassment.[16] The question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously.[17] To require the Leightons to continue to respond to the application for a tree dispute would be to cause them serious and unjustified trouble and harassment in circumstances where the application cannot succeed. It might also be said of the application by Ms Hammond that it is misconceived on the basis that the Tribunal cannot grant the relief sought in the application.
  4. [27]
    I am satisfied that the appropriate order is to dismiss the application for a tree dispute.

Footnotes

[1]Submissions filed 28 March 2017.

[2]ND Act, s 48(1).

[3]Ibid, s 49(a).

[4]Ibid, s 61.

[5]Survey Plan – SP115740.

[6]ND Act, s 66(3)(a).

[7]Ibid, s 66(3)(b)(ii).

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

[9]Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139. 

[10][2015] QCAT 70, 4 [10]-[11].

[11]See Nichol v Campbell [2016] QCATA 204; Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203.

[12][2016] QCATA 203.

[13][2013] QCATA 247.

[14]Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, 13 [38].

[15]QCAT Act, s 47(1), s 47(2)(a).

[16]Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271.

[17]Jones v Cusack (1992) 109 ALR 313.

Close

Editorial Notes

  • Published Case Name:

    Hammond v Leighton and Anor

  • Shortened Case Name:

    Hammond v Leighton

  • MNC:

    [2017] QCAT 178

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    29 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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