Bose v Weir[2017] QCAT 352

APPEARANCES:

REASONS FOR DECISION

1. [1]
   Mr and Mrs Boses’ property adjoins that of Mrs Weir. Growing on Mrs Weir’s property are various trees. The Boses’ say that trees situated on Mrs Weir’s land severely obstruct a view from a dwelling on their land that existed when they took possession of the land. The Boses’ say that the obstruction of the view is a substantial and unreasonable interference with the use and enjoyment of their land.
2. [2]
   When Mr and Mrs Bose purchased the property, there was no dwelling on the land. They subsequently built their house. The Boses’ say that one of the reasons they acquired the land and built a house was to take advantage of the views from the land.
3. [3]
   The Tribunal is required to determine a preliminary issue: when does a neighbour take possession of land for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“ND Act”).

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

4. [4]
   The ND Act sets out the obligations of tree keepers and the rights and entitlements of neighbours.
5. [5]
   A tree keeper is responsible for cutting and removing any branches of a tree that overhang a neighbour’s land, and ensuring that a tree does not cause: serious injury to a person or serious damage to a person’s land or any property on a person’s land; or substantial ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.^[1]
6. [6]
   Land may be affected by a tree.^[2] If a neighbour’s land is affected by a tree, and the neighbour cannot resolve the issue with the tree keeper using the process under Part 4 of the ND Act, the neighbour may apply to the Tribunal for an order.^[3]
7. [7]
   The Tribunal can make orders it considers appropriate in relation to a tree affecting the neighbour’s land to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[4] For interference that is an obstruction of a view, the tree must rise at least 2.5 metres above the ground and the obstruction must be a severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.^[5]

What do the parties say?

8. [8]
   Mr and Mrs Bose say that they purchased vacant land in April 2013. There was a house on the land when they first inspected the property however the house had been removed by the time they became the registered owners. They subsequently built a house on the land in December 2013.
9. [9]
   Mr and Mrs Bose acknowledge in their submissions previous decisions by the Tribunal that if there is no dwelling on land when a neighbour takes possession of the land, there can be no claim by the neighbour for a severe obstruction of a view from a dwelling subsequently constructed on the land. Mr and Mrs Bose say however that there is a distinction between possession and ownership. They say that a person, who is not the owner of land, may have possession of the land and that the law recognises that ownership and possession must be distinguished. They say that the nature and content of property rights will evolve and potentially change quite significantly over time.^[6] 
10. [10]
    The Boses’ say that possession involves having physical custody or control, in the present case custody or control of a view, whereas ownership is a right by which something belongs to someone. They say it is the possession of the view that the ND Act provides a remedy for in circumstances where there is an unreasonable interference with that view. 
11. [11]
    Mr and Mrs Bose say that the ordinary meaning of ‘possession’ is not ownership but occupancy. They refer to various decisions of the Tribunal in relation to the application of s 66 of the ND Act.^[7] The Boses’ refer to the definition of ‘owner’ in the ND Act and say that it was the intent of the legislature that a distinction be drawn between the meaning of ownership for the purposes of the Act and possession. They say it is dangerously limiting to confine the meaning of possession to simply be interchangeable with the concept of ownership. The Boses’ refer to s 49 of the ND Act and the definition of a ‘neighbour’. They say that the reference to ‘a registered owner’ and ‘an occupier’ being a ‘neighbour’ suggest that more than the registered owner of the land may make an application for a tree dispute. Mr and Mrs Bose say that the intention of the legislature was not to restrict ‘the right’ (to a view) to the registered owner of the land, but rather achieve the statutory purpose of protecting a possessory right to a view at the time of occupancy, not ownership.^[8]
12. [12]
    The Boses’ say that the established line of jurisprudence in the Tribunal has effectively extinguished any claim by a non owner of residential land to rights to enjoyment from unreasonable interference with their land. Possession, says Mr and Mrs Bose, requires a will and an intention to use the land. They say that control is exercised by the use of a view and that in the absence of physical occupancy there can be no view.
13. [13]
    Mrs Weir says that the dwelling, from which the Boses’ claim their views have been severely obstructed, did not exist when the Boses’ took possession of the land. Mrs Weir says that the balcony, a viewing place in the Boses’ dwelling from which there is said to be an obstructed view, is some 3 metres higher than the vacant land of which Mr and Mrs Bose took possession.
14. [14]
    Mrs Weir says that the Boses’ took possession of the land in April 2013 (when they became the registered owners of the property) not at a later date when construction of the dwelling on the land was completed.

Obstruction of views and the ND Act

15. [15]
    The common law of nuisance does not provide a remedy where trees obstruct a neighbour’s view.^[9] The ND Act does provide a discretionary remedy where trees obstruct a view if s 66 of the Act is enlivened. Contrary to the submissions by Mr and Mrs Bose, the ND Act does not create a right to a view. As the Queensland Civil and Administrative Tribunal (“QCAT”) Appeal Tribunal has observed, s 66 of the ND Act:

… does not create a right to a view, the remedy referred to is a statutory one which is discretionary, and will not be exercised if it is not appropriate in the circumstances.^[10]

16. [16]
    In its review of the ND Act, the Queensland Law Reform Commission said of the purpose of s 66(3)(b)(ii):

The purpose of section 66(3)(b)(ii) in its present form is to ensure the right (to seek to restore a lost view that existed when that neighbour took possession of the land) attaches to that particular neighbour and is lost when the neighbour no longer possesses the land. That right cannot be passed to a subsequent owner who purchases the neighbour’s land. The subsequent purchaser of the neighbour’s land is entitled to seek to restore only the view that existed when that purchaser took possession of the land.^[11]

17. [17]
    The issue of obstruction of a view caused by trees has been the subject of extensive consideration by the Tribunal.
18. [18]
    In Laing & Anor v Kokkinos & Anor (No 2)^[12] the Appeal Tribunal identified the steps to be undertaken in deciding an application under s 66(3)(b)(ii) of the ND Act:

First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, ss 72, 73 and 75.

19. [19]
    In Vecchio v Papavasiliou^[13] the Tribunal considered the application of s 66(3)(b)(ii) in circumstances where there was no dwelling on a parcel of land when a neighbour took possession of the land:

There is no general right to a view in Queensland. 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.

20. [20]
    The correctness of the decision in Vecchio has been affirmed by the QCAT Appeal Tribunal.^[14]
21. [21]
    Accordingly, unless there is a dwelling on land at the time the neighbour takes possession of the land, there can be no consideration of the obstruction of a view for the purposes of s 66(3)(b)(ii) of the ND Act.

‘Possession’ and s 66(3)(b)(ii) of the ND Act

22. [22]
    The term ‘possession’ is not defined in the ND Act. ‘Neighbour’ and ‘owner’ are defined.^[15] A ‘neighbour’ includes the registered owner^[16] or an occupier^[17] of land affected by a tree. ‘Occupier’ is not defined in the Act.
23. [23]
    The ND Act contains a number of other references to an ‘occupier’. For the purposes of Part 4 of Chapter 3 of the ND Act and the removal of overhanging branches by a neighbour, a neighbour is the registered owner of the land affected, not an occupier who is not the registered owner.^[18]
24. [24]
    An occupier of land affected by a tree, who is not the registered owner of the lot, may only apply to QCAT if the registered owner has refused to make the application.^[19]
25. [25]
    Section 48 of the Act sets out who is a tree keeper. In addition to the registered owner of a lot, other persons may be a tree keeper including a lessee or licensee of land under the Land Act 1994,^[20] the grantee of an occupation or stock grazing permit under the Forestry Act 1959,^[21] and the grantee of a stock grazing permit under the Nature Conservation Act 1992.^[22]
26. [26]
    The ND Act also refers to an ‘occupier’ in the context of the requirement for a copy of an application for a tree dispute to be given to the occupier of the tree-keeper’s land if the neighbour has reason to believe the occupier would be affected by an order.^[23] Where an ‘occupier’ is the neighbour for the purposes of an application for a tree dispute, the occupier must give a copy of the application to each registered owner of the land affected by a tree.^[24] Finally, s 79 of the ND Act requires the Tribunal to keep a register of orders made about trees. Land is affected by an order about a tree if an owner or occupier of the land was a tree keeper or a neighbour for the tree at the time the order was made. 
27. [27]
    A tree keeper may therefore be a registered owner of land or, in certain specified circumstances, an occupier of land.
28. [28]
    A neighbour for the purposes of s 66(3)(b)(ii) of the ND Act may, subject to the application of s 62(2), be either a registered owner or an occupier depending upon the particular circumstances of the dispute before the Tribunal.
29. [29]
    In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford^[25] the Appeal Tribunal considered the meaning of ‘possession’ in s 66(3)(b)(ii):

[41] Section 66(3)(b)(ii) requires consideration of when a neighbour takes possession of land. “Possession” is not defined in the NDA and therefore has its ordinary common law meaning in the context in which the word appears and the broader objects of the Act. A neighbour may be a registered owner of land affected by a tree or an occupier of the land. A neighbour who is an occupier may not bring an application for a tree dispute unless the registered owner of the land has refused to make the application. Generally speaking, a neighbour who is a registered owner of land takes possession when clear title passes to them, although ownership of land may be divorced from possession of land in appropriate cases. An occupier, e.g. a tenant, has possessory and proprietary rights when the occupier takes possession of land under a lease or some other type of agreement entitling the occupier to exclusive possession.

[42] It is not open to a neighbour, when a dwelling is renovated after possession is first taken, to argue that they have taken possession of the renovated part of the dwelling subsequent to the renovations being carried out. It is possession of the land, not the dwelling, with which s 66(3)(b)(ii) is concerned. In this context and for the purposes of the section possession of land occurs when clear title first passes to the neighbour or in the case of an occupier when the occupier first takes exclusive possession.

30. [30]
    Words in a statute should be interpreted in accordance with their ordinary and current meaning.^[26] When a word or term is used in a statute it should not be assumed it is used simply and exclusively in its technical, legal sense, rather than according to its ordinary meaning.^[27] However, sometimes where words have acquired a legal meaning, they should be understood in that sense.^[28]
31. [31]
    Possession should be given its meaning at law: the present control of land to the exclusion of all others. At common law, a person is an occupier of land if they have, or have the right to, possession and control of land. Occupation is the right to physical possession and control of land.
32. [32]
    The word ‘possession’ as it appears in s 66(3)(b)(ii) of the ND Act must be read in the context of the section and the Act as whole. Section 66(3)(b)(ii) refers to a ‘neighbour’ taking ‘possession’ of land. As has been noted, a ‘neighbour’ may be the registered owner of land affected by a tree or an occupier of land affected by a tree. A ‘neighbour’ may apply to QCAT for an order under s 66 of the ND Act. An occupier of land affected by a tree, if the occupier is not the registered owner of the land, may only make an application to the Tribunal if the registered owner of the land refuses to do so.
33. [33]
    As has been noted, who is a ‘tree keeper’ under the ND Act is not limited to the registered owner of land on which a tree is situated. Persons other than a registered owner may be a tree keeper, but generally, each person identified at s 48(1) of the ND Act is an occupier of land with the exclusive right of physical possession and control of the land.  Generally, although not exclusively, the types of lease, licence or permit of the type mentioned in s 48(1) give exclusive use of land to the lessee, licensee or grantee who have the right to refuse access to the public.
34. [34]
    The transfer of an interest in land under the Land Title Act 1994 (Qld) has the result that the person registered as the owner of that interest has title to it and the title has the protection of indefeasibility given under the Land Title Act 1994 (Qld). Upon registration of the transfer of that interest the owner has exclusive possession of the land.
35. [35]
    Adopting the meaning at law of ‘possession’ for the purposes of s 66(3)(b)(ii) of the ND Act as outlined in these reasons is consistent with the overall legislative scheme, and intent, of Chapter 3 of the Act.  
36. [36]
    Mr and Mrs Bose took possession of the land on which they subsequently built the dwelling when they were registered on the title as the owners of the land. They were, at that point in time, in control of the land to the exclusion of all others.
37. [37]
    Mr and Mrs Bose erroneously submit that ‘possession’ in s 66(3)(b)(ii) refers to possession of the view. The ‘possession’ with which s 66(3)(b)(ii) is concerned is of the land upon which is situated the dwelling from which the view is obstructed by a tree or trees on the tree keeper’s land.  
38. [38]
    Mr and Mrs Bose refer to the definition in the Act of ‘owner for land’. The definition of ‘owner for land’ is specifically limited in its application to Chapter 2 of the ND Act. Chapter 2 deals with dividing fences. The definition has no application for the purposes of Chapter 3 of the ND Act dealing with trees.
39. [39]
    At the time the Boses’ were registered as owners of the land and thereby took possession of the land, there was no dwelling on the land. As there was no dwelling on the land when they took possession, s 63(3)(b)(ii) of the ND Act is not engaged.
40. [40]
    The tribunal may make a declaration about a matter in a proceeding instead of making an order it could make about the matter or in addition to an order it could make about the matter.^[29] There is no definition in the QCAT Act of a ‘matter’. Whether a view existed from a dwelling on Mr and Mrs Boses’ land when they took possession of the land is, in my view, a matter in the proceeding. It is, at least insofar as their application for a tree dispute is presently framed, the fundamental basis of their claim and is therefore a ‘matter’ for the purposes of s 60(1) of the QCAT Act.
41. [41]
    Accordingly, I make a declaration that, for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), there was no view from a dwelling on the land at 34 Harrison Street, Bulimba when Dipjit Bose and Sujata Bose took possession of the land.
42. [42]
    For the reasons set out, Mr and Mrs Bose are unable to establish the jurisdictional fact identified in Laing & Anor v Kokkinos & Anor (No 2):

… a ‘severe obstruction’ may be categorised as a jurisdictional fact: ‘a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question.’ As a consequence, the absence of such a finding will invalidate an order made under s 66 of the Act.^[30]

43. [43]
    If a proceeding or part of a proceeding is considered by the Tribunal to be frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process, it may order that the proceeding or part of the proceeding be dismissed or struck out.^[31]  If there is a real question to be determined, and the rights of the parties depend upon it, it is not appropriate to dismiss a proceeding.^[32] Here, the Boses’ are unable to establish the jurisdictional fact required in order for the Tribunal to make the orders they seek relating to the trees on Mrs Weir’s land. If the claim by Mr and Mrs Bose in this proceeding is limited to what they say is a severe obstruction of a view caused by the trees on Mrs Weir’s land then, in the absence of jurisdiction, there is no question to be determined by the Tribunal.
44. [44]
    To ensure that the parties are afforded procedural fairness and before making any orders in accordance with s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I will make orders that the parties file submissions as to whether the application for a tree dispute should be dismissed.