Jones v Romabon[2024] QCAT 266

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   The parties are immediate neighbours in a residential area in Bracken Ridge, a suburb of Brisbane. The applicant’s house and land is elevated relevant to the respondent’s house and land.
2. [2]
   The applicant acquired his property in July 2016. The respondents had owned the house and land immediately below it to the west for approximately 2 years prior. At the time the applicant purchased his property, there were views west to the mountain range from the upstairs rooms and balcony off the living area in the house.
3. [3]
   Approximately three years later, the respondents planted bamboo on their side of the common boundary. It is said this was done so as they may have privacy in their yard in terms of what could be seen from the applicant’s house. That bamboo has become the subject of a dispute between the parties. The applicant asserts it has grown to a height which blocks the views he had when he purchased the house and land, and recently he has raised with the Tribunal that the continued growth of that bamboo will cause blockage of sunlight causing his property to be placed into shadow from around 1 to 2 pm each day.
4. [4]
   Whilst some resolution has occurred in the past with the respondents trimming the bamboo, the applicant says the trimming needs to be at a lower height and more constant. As I understand the case the applicant advances, the respondents do not agree to do this. Thus, the applicant seeks relief in this Tribunal in terms of orders for the trimming of the bamboo at a specific height and that it be maintained at that height.
5. [5]
   The respondents assert in a very general manner, that a tree on the applicant’s land is overhanging their property and causing them concern, and that they have an agreement with the applicant as to what height the bamboo should be trimmed to as well as to the requirement to keep his tree trimmed, and that this Tribunal should hold the applicant to that agreement.
6. [6]
   The respondents’ case is effectively one of bare assertions. In contrast, the applicant’s evidence put before this Tribunal, in comparison to the absence of any compelling evidence in response from the respondents that establishes a contrary position, shows without doubt the existence of bamboo which has the effect of blocking his views west, a view that existed from the house when he purchased it. For this reason, and as explained in more detail herein, the applicant succeeded in his application to this Tribunal.

Relevant Facts and Circumstances

7. [7]
   As from 21 July 2016, the applicant acquired his house and land. He says that when he did so, the main attraction was a view to the west of the house overlooking the Glass House Mountains.
8. [8]
   The applicant says that approximately three years later, the first named respondent decided to plant bamboo along the common boundary so as to give the respondents privacy, but since then the bamboo has “grown out of control very quickly” such that it blocks the applicant’s view to the mountains. He also says that the respondent is not prepared to maintain the bamboo to a reasonable height so as to not restrict his view.
9. [9]
   On or about 12 August 2021, the applicant sent a letter to the respondents formally informing them of his concerns and his request that the bamboo be trimmed so as to restore the view. Despite some discussions and that which followed resulting in the bamboo being trimmed, initially to a level said to be acceptable, but subsequently not being trimmed sufficiently, the parties were unable to reach a final resolution which dealt with the issue.
10. [10]
    On 23 June 2022, the applicant commenced this proceeding, naming the first named respondent as the sole respondent. He does not assert that the bamboo has caused, or is continuing to cause, damage. His complaint is that the height of the bamboo, which is above 2.5 m, is obstructing his view, thus it being a ‘substantial, ongoing, and unreasonable interference with his use and enjoyment of his land’.^[1] He seeks orders that the respondent trim the bamboo and that it be maintained at a specified height,^[2] but there also be orders made that a person can enter the respondents’ land to carry out those orders, and/or for the purposes of obtaining a quote to do so, and that the respondents pay the costs of carrying out such orders.
11. [11]
    On 2 August 2022, the first named respondent filed his response to the application. Therein he asserts that the parties reached a resolution following the 12 August 2021 letter whereby the respondent would trim the bamboo, and the applicant would trim a tree that is on the applicant’s property but overhanging the respondent’s property. He asserts that whilst he trimmed the bamboo, the applicant did not trim the tree sufficiently such that it blocks his solar panels, clogs his gutters, and drops leaves and branches onto his cars causing damage to them. He also asserts that where he planted the bamboo there was a tree in place at the time the applicant purchased his land, and that he replaced that tree with the bamboo so as to give him privacy, and to create a noise barrier and block light emanating from the balcony of the applicant’s house when the applicant is having parties or drinking sessions thereon.
12. [12]
    On 15 February 2023, by a direction given by this Tribunal, the second named respondent was joined as a respondent in this proceeding.
13. [13]
    On 19 July 2023, in what is recorded as being a Directions Hearing, directions were given requiring:

    1. The applicants to provide evidence showing the view from the house when he took possession of the land, and the current view from the house, plus any further material to be relied on; and
    2. The respondents to file any material and submission in response.
14. [14]
    It was also noted therein that following filing of such, the proceeding would be determined on the papers.
15. [15]
    Whilst the applicant had, just prior to that directions hearing, by e-mail sent 16 July 2023, provided this Tribunal with some photographs taken that day of what was said to be the ‘regrowth’ of the bamboo, identifying therein the need for it to be trimmed to a height not exceeding 3.5m, such which in my opinion satisfies the second part of the direction requiring evidence of the current view, on 10 August 2023 the applicant provided a bundle of material which appears to be his evidence of the uninterrupted views at the time of his purchase of the property. Therein, he provides a letter which is shown to be authored by a Roxanne Paterson of Ray White Bracken Ridge, in which the following statement is made:

… I was the selling agent for the property at [address given of the applicant’s property]. …

When marketing the property for sale and when Brett purchased the property, I confirm the home had uninterrupted views on the Western (sic) side of the property. This was a marketing feature of the home with views to the mountains visible from the side and front of the property.

16. [16]
    There is nothing on the file before me as to anything further being filed by the respondents beyond that which was contained in the first named respondent’s response document.
17. [17]
    It is against this background that the matter came before me for determination on-thepapers.

Relevant Law

18. [18]
    The issues arising in this proceeding fall to be decided under the provisions found in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) Chapter 3 - Trees. To the extent the applicant’s case does not raise any issue of overhanging branches, Parts 3 and 4 therein do not apply but rather it is under Part 5 that his case is to be determined. Under s 61 therein, this Tribunal is seized of jurisdiction to do so. 
19. [19]
    However, to the extent the respondents raise an issue of a tree they assert is situated on the applicant’s land and branches from it overhang their land causing issues for them, such is an issue that could fall within Parts 3 and/or 4, and as such I have referenced relevant sections therein within the following relevant provisions which I have extracted from that Chapter:

Part 1 Introduction

1. 41
   Overview

1. A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.
2. Generally, this chapter provides for the following ways in which a person may deal with an issue about a tree affecting the person’s land—
   1. part 3 deals with the person’s right under the common law to take action to abate a nuisance;
   2. part 4 provides for a remedy under which the person may—
      1. give a notice to the tree-keeper asking them to remove overhanging branches; and
      2. if the work is not done, remove the branches and recover the cost from the tree-keeper;
   3. part 5 provides for the person to apply to QCAT for an order.

Part 2 Interpretation

1. 45
   Meaning of tree

1. (1)
   Tree means –

1. any woody perennial plant; or
2. any plant resembling a tree in form and size; or

Examples –

Bamboo, banana plant, palm, cactus

3. …

1. 46
   When is land affected by a tree

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

1. any of the following applies—
   1. branches from the tree overhang the land;
   2. the tree has caused, is causing, or is likely within the next 12 months to cause—
      1. serious injury to a person on the land; or
      2. serious damage to the land or any property on the land; or
      3. substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
2. the land—
   1. adjoins the land on which the tree is situated; or
   2. …

1. 48
   Who is a tree-keeper

1. (1)
   The following person is the tree-keeper for a tree—

1. if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994—the registered owner of the lot under that Act;
2. …

1. 50
   Meaning of work

Work, on a tree, includes—

1. cutting and removing any part of the tree (including its branches or roots); and
2. …; and
3. ….

Part 3  Responsibilities, liabilities and rights

1. 52
   Responsibilities of a tree-keeper

1. ….
2. A tree-keeper is responsible for ensuring that the tree does not cause—
   1. …;
   2. …; or
   3. substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
3. This section does not create a civil cause of action based on a breach of a tree-keeper’s responsibilities.

Part 4 Removal of overhanging branches

1. 57
   Notice for particular overhanging branches

1. This section applies in relation to each of the overhanging branches—
   1. only if the branch extends to a point over the neighbour’s land that is at least 50cm from the common boundary; and
   2. only to the extent the branch is 2.5m or less above the ground.
2. The neighbour may give a written notice to the tree-keeper asking the tree-keeper to cut and remove the overhanging branches.
3. The notice must—
   1. …

Part 5 QCAT orders to resolve other issues about trees

1. 65
   Requirements before order may be made

QCAT may make an order under section 66 if it is satisfied of the following matters—

1. the neighbour has made a reasonable effort to reach agreement with the tree-keeper;
2. the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
3. …

1. 66
   Orders QCAT may make

1. ….
2. QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

1. …; or
2. to remedy, restrain or prevent—

1. …; or
2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

…

5. Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

2. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

• an order that requires the removal of the tree within 28 days
• an order that requires particular maintenance work on the tree during a particular season every year 
• an order that requires particular work to maintain the  tree at a particular height, width or shape

3. …;
4. …;
5. authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
6. require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
7. ….

Division 4Matters for QCAT consideration

1. 70
   Application of div 4

1. This division states matters for QCAT to consider in deciding an application for an order under section 66.
2. This division does not limit the matters QCAT may consider.

1. 73
   General matters to consider

1. QCAT must consider the following matters—

1. the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;

…

7. any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke; 

…

10. the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;

…

1. 75
   Other matters to consider if unreasonable interference alleged

If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—

1. anything other than the tree that has contributed, or is contributing, to the interference; and
2. any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
3. the size of the neighbour’s land; and
4. whether the tree existed before the neighbour acquired the land; and
5. for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.

20. [20]
    As well as those statutory provisions, there is a legal premise established by the common law that must not be overlooked, but which to some degree has been ameliorated by some of the provisions of the ND Act to which I have just referred. It is that there is no general right at law to a view. Such has been the common law position since 1610 in England,^[3] and adopted in Australia.^[4] Such has been the position taken by this Tribunal over many years when considering tree disputes.
21. [21]
    As Alan Wilson J, the then President of this Tribunal, observed in 2013 in Laing v Kokkinos (No 2):^[5]

Section 66 of the Act provides that an applicant may seek an order of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land. That section 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.

22. [22]
    As Senior Member Stilgoe OAM, now President Stilgoe of the Land Court of Queensland, observed in 2015 in Vecchio v Papavasiliou:^[6]

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 that existed at the time the neighbour took possession of the land. ….

23. [23]
    As Senior Member Aughterson expressed it in 2020 in Bose v Weir:^[7]

As noted in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford, there is no right to a view at law. However, the Act creates a limited ‘right’ to a view. Section 66(2)(b)(ii) of the Act provides that the Tribunal may make an order it considers appropriate where a tree is causing ‘substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land’. That sub-section is qualified by s 66(3)(b)(ii), which provides that where the interference is an obstruction of a view, a remedy arises only if the obstruction is: “severe obstruction of a view, from a dwelling on a neighbour’s land, that existed when the neighbour took possession of the land.”

24. [24]
    It is that law which must be applied to the relevant facts and circumstances which I identified earlier herein.

Discussion on the Contest between the Parties

25. [25]
    As threshold issues, I should note I am satisfied that the offending bamboo is a tree as provided for under s 45 of the ND Act, the applicant’s land is affected by the tree as contemplated by s 46 of the Act, that the respondents are the relevant tree-keepers as provided under s 48 of the Act, and in such capacity are charged with the responsibilities for the bamboo as identified in s 52 of the Act.
26. [26]
    I am also satisfied that before commencing this proceeding the applicant made all reasonable steps, and made all efforts to reach an agreement with the respondents, as required by s 65 of the Act.
27. [27]
    For these reasons there is no statutory prohibition to the applicant pursuing the relief he seeks in this proceeding.

The respondents’ case in defence

28. [28]
    I deal firstly with the issue the respondents raise in their response, such being a complaint about a tree on the applicant’s land that is said to have branches which overhang their property and causing them some issues.
29. [29]
    It is entirely unclear as to the purpose for which the respondents raise this as a response to the action against them. If it is to show that there was some agreement which the applicant should be held to, which is in effect a quid-pro-quo deal where each neighbour trims an offending tree, then it is not something that I was able to deal with in this proceeding. This is for two reasons:

    1. There is no evidence of any such agreement provided to support the respondents’ assertion in that regard;

2. There is no formal complaint made by the respondent about such overhanging branches and the effect of them such as to enliven this Tribunal’s jurisdiction to make any orders about that tree. Should the respondents have a valid complaint to make about that tree, then the respondents must first have addressed the issue in the manner required under the ND Act Chapter 3 Part 4 before seeking relief  in this Tribunal, all as provided for inter-alia under s 57, and in turn s 59 and s 62.

30. [30]
    There is also the assertion in the respondents’ material as to a tree being in the position where the bamboo was planted, that tree being there when the applicant purchased the house. Once again, the purpose of this assertion is entirely unclear from the material, but I infer it is, at the very least, suggest that any view may have been blocked at that time. Whatever is the reason for the assertion, it is not supported by any evidence given by the respondents. It remains a bare assertion of no substance.
31. [31]
    For these reasons, their response in this regard does not advance any meaningful challenge to the relief the applicant seeks. I did not give it any weight, and effectively dismissed it as being entirely irrelevant.

The applicant’s complaint

32. [32]
    As I have noted it herein, the applicant’s complaint is about a loss of the view he says he had when he purchased the house and land. Very recently this Tribunal, in determining a tree dispute, had cause to address the issue of the loss of a view caused by trees. That was in Jarrett v Bliss [2024] QCAT 234. I respectfully adopt the following short passage from the learned Member’s reasons therein, which in my opinion expresses succinctly the state of the law, and the caselaw from which it is sourced, as it relates to the issues for determination by me:^[8]

There is no general right to a view from a person’s land and the Act does not create one. However, subsection 66(2)(b)(ii) of the Act enables the Tribunal to make orders on the basis of an obstruction of a view only if the tree rises at least 2.5 metres above the ground and the Applicants can establish the trees on the Respondents’ land have caused a severe obstruction of a view, from a dwelling on the Applicants’ land, that existed when the Applicants took possession of the land. This applies even if the Applicants took possession of the land before the commencement of the Act. 

The Appeal Tribunal has identified a three-step process when determining whether or not there is a severe obstruction of a view. First, the Tribunal must determine what the Applicants’ view was from their dwelling at the time they took possession of their land. Second, the Tribunal must determine whether the trees are causing, or within the next 12 months will cause, a severe obstruction of that view and, if so, the Tribunal must balance the interests of the parties considering the matters listed in sections 73 and 75 of the Act.

33. [33]
    Thus, turning to that three step process, the following observations could readily be made from the documentary material the applicant put before this Tribunal, recalling again that the respondents did not offer anything to challenge that material in any meaningful manner:

    1. There was a view to the Glass House Mountains from the west side of the house, such which was described as a ‘marketing feature’ from which I infer it was a significant aspect of the house and one which, if lost, would amount to a  substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of his land;

2. The offending bamboo, at the height shown in the photographs provided by the applicant in which he demonstrated clearly that height, such  exceeding the requisite 2.5 m above the ground level in which it is grown being that required under the Act before the question of obstruction of a view could be considered, it also exceeding the applicant’s nominated 3.5 m above the level of the applicant’s land which would suffice as a maximum to ensure his views were not obstructed, does create a ‘severe’ obstruction of that view;^[9]
3. Noting the applicant does not seek to have the bamboo removed in its entirety, and has nominated a height of 3.5m above the level of his land as being sufficient to ensure his views are restored, which he says is a height that would retain the privacy measure the respondents sought to gain by planting the bamboo along the common boundary, a fact not challenged by the respondents, this results in the interests of the parties being balanced in the manner contemplated by the factors as laid down in s 73 and s 75 of the ND Act.

34. [34]
    For all these reasons, it seems to me the applicant should be granted the relief he seeks in terms of having the offending bamboo trimmed to a nominated height. That would address the issue of the blocked view. To the extent the applicant also complains of the increasing height of the bamboo leading to a blocking of sunlight, it being an issue I did not make any definitive findings because ultimately it was not germane to the relief the applicant was seeking, as I understand the applicant’s complaint it would also resolve that issue.
35. [35]
    But he also sought orders that provide for on-going maintenance of the bamboo at that height. as well as for other person to be engaged, at the respondents’ cost. He sought to justify the need for such additional orders by saying they were required should the respondents not carry out an order to trim the bamboo. Whilst I expect that the respondents would comply with the orders of this Tribunal, and as such these orders should not be necessary, based on the most recent photos the applicant provided this Tribunal on 16 July 2023 and 10 August 2023 it appeared to me that the respondents had not been keeping the bamboo trimmed, thus it seemed to me it would be of a benefit for such orders to be made such which should avoid the need for a return to this Tribunal should that be the position the respondents chose to take notwithstanding the orders I made requiring them to do otherwise. For this reason I made orders addressing the relief the applicant sought, but cast them in language slightly differently to that which the applicant proposed. 

Conclusion

36. [36]
    On reading and considering the material as filed by the parties in this proceeding, I was satisfied that the applicant had a valid complaint. Whilst the bamboo which the respondents planted along the common boundary had a purpose, one which I did not overlook namely, to afford the respondents privacy, it did not mean that such purpose  should be given a paramount position to the applicant’s desire to maintain the view he had when he purchased the house and land. The solution the applicant proposed in terms of the orders he sought from this Tribunal, when implemented and maintained, not only returned the view to him, but it did not interfere with the privacy the respondents sought to maintain. In all respects it was a sensible solution and one which should be implemented.

37. [37]
    Accordingly, orders were made to that effect.