Timmer v Seeto[2017] QCAT 62

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

1. [1]
   Lodewijk Timmer and Nathan and Pamela Seeto are neighbours.  Mr and Mrs Seeto have planted a large clump of bamboo (Bambusa Ventricosa  - commonly called “Buddha Belly“) on their fenceline. It is currently between 9 and 11 meters high.
2. [2]
   Mr Timmer filed an application in QCAT on 1 April 2016 seeking to have the bamboo removed.
3. [3]
   Mr Timmer says the bamboo stops the view and sunshine to his garden and produces substantial  leaf litter for him and his neighbours.  Mr Timmer also wants to prevent further damage to fences.
4. [4]
   Mr and Mrs Seeto have filed no material in response to this application and did not attend the conciliation conference ordered by the tribunal.  In effect, they have decined to take part in the proceedings, despite being appropriately notified of the application and consequential orders of the tribunal.
5. [5]
   In support of his application, Mr Timmer filed a site visit report by Mr Gunter of TPZ Project Arborists.  Mr Gunter says:

   • The bamboo is a Buddha Belly variety;
   • The purchase of the property would be greatly influenced by the view and that the view is significantly obstructed by the bamboo;
   • The bamboo would cause shade to the west during the morning and that the shade will likely affect the amount of light that reaches the first floor bathroom;
   • Clumps of the bamboo have spread under the fence to neighbouring properties and that this will likely continue to occur as the bamboo grows;
   • There is no visible damage to Mr Timmer’s property;
   • Bamboo will continue to grow vertically and horizontally and continue to obstruct view and increase shade;
   • The species is a poor choice for this location given the size of the basal clump and potential height;
   • He makes no recommendation regarding the removal or reduction in height of the bamboo.
6. [6]
   In his written statement, Mr Timmer says he doubts the bamboo is “Buddha Belly” and that his view is obstructed by the growth and it further obstructs sunshine to his bathroom.  
7. [7]
   Mr Timmer points to other neighbouring properties he says are also affected by the bamboo - his neighbour at 5 Galleria Court showing damage to the block fence around the corner and the root system causing it and bamboo expanding into property at 65 Armstrong Way.
8. [8]
   However for this application to succeed, Mr Timmer must show damage to his own property and cannot rely on damage in neighbour’s yards that are not parties to this application.  This also means that any orders that are made, are only in relation to Mr Timmer’s property and proven damage.
9. [9]
   Mr Timmer provides no evidence of physical damage to his property and the arborist’s report comments that he could find no damage.  Mr Timmer is alleging loss of his view and loss of sunlight.  All the other damage he refers to is on his neighbour’s properties and outside the scope of his application.
10. [10]
    When considering the matter the Tribunal has had regard, as it must, to section 73 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Neighbourhood Disputes Act).
11. [11]
    Where unreasonable interference is alleged, the Tribunal may also have regard, given the allegations made in this matter, to the provisions of section 75 of the Neighbourhood Disputes Act.

Obstruction of sunlight

12. [12]
    The Tribunal’s power to make an order about an obstruction of sunlight is available if the tree rises at least 2.5 metres above the ground and there is a severe obstruction of sunlight to a window or roof.^[1] I accept that the bamboo rises above 2.5 metres.
13. [13]
    Mr Timmer contends that the ground floor windows and middle floor bathroom ensuite are shaded by the bamboo in the early morning and second floor windows partly shaded in winter. Mr Timmer has provided the tribunal with photographic evidence of the obstruction through a Sunray obscuring test which compares full sun exposure. However, there are no internal photographs of the dwelling or expert lighting evidence. All of the photographs are external views.
14. [14]
    The best evidence provided by Mr Timmer is that of Mr Gunter who, although outside of his area of expertise, offers some view on that ‘it is clear that the plant would cast shade to the west during the morning, and that this shade is likely to affect the amount of light that reaches the first floor bathroom in particular’. Mr Gunter goes onto to say that as the plant grows ‘the current affects will therefore be compounded with time as greater shade is cast.’
15. [15]
    The tribunal may make an order in relation to a tree affecting the neighbour’s land to remedy, restrain or prevent substantial, ongoing or unreasonable interference with the use and enjoyment of the neighbour’s land.^[2] The obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling.^[3]
16. [16]
    The evidence before me does not satisfy me that the obstruction to Mr Timmer’s ground floor windows and middle floor bathroom ensuite is of such severity as is required to satisfy the test set out in the legislation.
17. [17]
    The obstruction of sunlight must be a significant, ongoing and unreasonable interference with the use and enjoyment of the applicant’s property. Mr Timmer is most concerned with heating his bathroom and that the bathroom has limited sunlight in the early morning.  In my view, this is insufficient evidence to constitute a significant, ongoing and unreasonable interference.
18. [18]
    As I am not satisfied on the evidence presented, Mr Timmer’s claim under this heading does not succeed.

Leaf Litter

19. [19]
    There are few reported Queensland decisions on this issue. In a decision of Thomsen v White^[4] the learned senior member in considering a similar issue, noted that the Neighbourhood Disputes Resolution Act 2011 (as it was titled then) was modelled, in part, on the New South Wales Trees (Disputes Between Neighbours) Act 2006. Section 7 of the New South Wales Act which provides:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

20. [20]
    The learned senior member referred to decisions of the Land and Environment Court of New South Wales where it was determined^[5] that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. The Court took that view because it found that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

21. [21]
    This matter was discussed by the learned senior member acting as the Deputy President of the Tribunal in Edmonds v Yeates and Anor^[6] and I respectfully adopt the senior member’s comments. She said:

This tribunal has determined^[7] that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree. That approach is consistent with a recent decision of the Court of Appeal in Graham & Ors v Welch^[8] 3. Atkinson J said^[9]:

“Trees and bushes are common place and desirable attributes of homes in residential areas. It is not possible to have the Australian gumtree without the possibility of gumnuts falling or a Casuarina without the possibility of seed pods, or many common native or exotic trees or shrubs which flower and then produce nuts, berries, seeds, or seed pods.

The leaf litter of which Mr Davies complains is a natural incidence of a suburban landscape that includes trees. It does not constitute a substantial, ongoing and unreasonable interference.”

22. [22]
    I am satisfied I should follow the concise and considered reasoning I have referred to when considering how to balance whether interference is substantial and unreasonable.
23. [23]
    Mr Timmer submits that significant leaf litter is falling into his garden and into his gutters. He claims $1,800.00 for the work to keep his lawn free from this litter. There is no evidence through photographs of the nature and/or the extent of the leaf litter produced by the bamboo.
24. [24]
    Mr Timmer does not allege his home is at risk of serious damage from the bamboo but rather that the tree causes a substantial, ongoing and unreasonable interference with the use and enjoyment of land.
25. [25]
    As he does not provide any evidence of the litter or the extent of the litter greater than the natural incidence of a suburban landscape, I am unable to give any weight to his submissions. 
26. [26]
    As I am not satisfied on the evidence presented, Mr Timmer’s claim under this heading does not succeed.

Obstruction of the View

27. [27]
    Mr Timmer says the bamboo now obstructed a panoramic view he had of the coastline.^[10]
28. [28]
    Mr Timmer bought the land in March 1998.  He and his wife took possession of their newly built home in May of 1999 and enjoyed unobstructed views for many years.^[11]
29. [29]
    Mr and Mrs Seeto owned the land from 2007 and Mr Timmer says the bamboo was planted soon after that.^[12]
30. [30]
    Mr Timmer’s submission has a fundamental flaw based on the current law in this area. In the 2015 decision Vecchio v Papavasiliou,^[13] the learned senior member said

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.

31. [31]
    This decision was confirmed by the QCAT appeal tribunal in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford^[14] and again in Nichol v Campbell.^[15]
32. [32]
    The decision in Nichol v Campbell is directly instructive to this matter and binding on this tribunal.  After considering all of the submissions and the legislation, the Appeal tribunal found as follows:^[16]

It follows that the protected view under section 66(3)(b)(ii) is that which could be seen from a dwelling (if there was one) on the land at the time when possession of the land was taken. If there was no dwelling on the land at the time of possession then there is no protected view.

This means that the member was right to follow Vecchio v Papavasiliou [2015] QCAT 70 and to dismiss the application brought by Mr and Mrs Nichol because there was no dwelling on the land when they purchased the lot.

33. [33]
    There was no house on the land when the property was purchased by Mr Timmer.  On the basis of the authorities cited above, there is no protected view and this ground must fail.
34. [34]
    On the basis of the reasons above and in the absence of any evidence of physical damage, Mr Timmer’s application must be dismissed.