Van Bovene v Gay[2024] QCAT 319

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   The applicant is a co-owner of a unit in an apartment complex in Wellington Point, a bayside suburb of Brisbane. The respondent is co-owner of land to the east which adjoins the land on which the apartment complex sits, such being a community title scheme.
2. [2]
   The applicant complains that the view, which he asserts existed from the balcony of his unit when he purchased the unit, is severely obstructed by trees growing on the respondent’s land along the common boundary between the two properties. He argues that such is a substantial, ongoing, and unreasonable interference with the use and enjoyment of his unit. The applicant also asserts that the trees are causing substantial interference to scheme land by way of overhanging branches and debris falling into the pool which is within the apartment complex. He does so identifying himself as the body corporate chairperson. He seeks relief in this Tribunal that the respondent be ordered to trim the trees and maintain them as a certain level so as to return and maintain that view.
3. [3]
   The respondent opposes the application. He argues that the asserted view did not exist when the applicant acquired the unit and thus took possession of it.
4. [4]
   By way of Directions issued by this Tribunal on 14 December 2023, it was directed that the question of whether there is such a substantial, ongoing, and unreasonable interference be determined as a preliminary matter, on the papers.
5. [5]
   For the reasons given herein, I have determined that preliminary matter adverse to the applicant. That being so, his application by which this proceeding was commenced is lacking in substance. Accordingly, to avoid further unnecessary use of this Tribunal’s resources, it was appropriate to dismiss the proceeding. Orders were made reflecting these findings.

Relevant Facts and Circumstances

6. [6]
   In December 2019, the applicant acquired, and took possession of, Unit 4 in an apartment complex in Wellington Point, a bayside suburb of Brisbane (“Unit 4”).^[1] He asserts that, at that time, he had views from the balcony of that Unit east over Moreton Bay to North Stradbroke Island.
7. [7]
   Whilst he acknowledges in his application document that, at the time he acquired Unit 4, trees were planted on the respondent’s land^[2] along the common boundary between the land on which the apartment complex sits and the respondent’s land, he asserts that those trees “did not obstruct our views”. In his application he says that has changed and that the trees in question, which he describes as ‘Eumundi Quandong’ trees, have grown to a height, and will continue to grow, such that the trees now, and will continue to, severely obstruct his view. He also asserts the trees obstruct light into the main bedroom of his unit.
8. [8]
   In addition, he asserts that the branches of the trees are overhanging the land and he is experiencing accumulation of leaves into the pool. However those assertions appear to be made by him in his capacity as the stated ‘Chair’ of the Body Corporate for the apartment complex.
9. [9]
   In November and December 2022, correspondence was exchanged between the applicant, expressed as having been sent by the applicant in his capacity as the ‘Chair’, and the respondent. Therein the applicant raised the issue of the obstructed view, requesting the respondent to  reduce the height of the trees to restore the view. He also requested that the overhanging branches be cut back. He did not however raise any issue with allegedly obstructed light into his unit.
10. [10]
    The respondent’s response to those requests was that:

    1. The trees in question were planted in 2009, well before the apartment complex was constructed in 2018;
    2. The height of the trees at the time the applicant acquired his Unit in that complex in December 2019 were such that he did not have the view he complains of having since lost;
    3. An assertion that other unit owners within the apartment complex have stated they do not want the trees cut back, holding a preference to retain a privacy screen to the apartment complex’s pool.
11. [11]
    Not satisfied with that response, on 17 January 2023 the applicant commenced this proceeding by filing an Application for a Tree Dispute in this Tribunal. Therein he named himself as the applicant.
12. [12]
    What then followed was a series of directions given by this Tribunal for the filing of relevant material, all of which were complied with albeit, as I will discuss later in these reasons, not entirely satisfied in terms of body corporate issues. The last of those directions, issued 14 December 2023:

    1. required the applicant to file and serve ‘evidence’ of the view he asserts existed at the time he took possession, and the view current at the time of submission of that evidence, such required by 1 March 2024; and
    2. provided that the question of whether there is a substantial, on-going, and unreasonable interference with the use and enjoyment of the applicant’s land by him was to be determined on the papers as a preliminary matter.
13. [13]
    It is against this background that the proceeding came before me for determination.

The Issues

14. [14]
    The primary issue is the preliminary matter to be determined. It requires me to consider, to the extent the alleged interference is in terms of an obstruction of sunlight or a view only if there is severe obstruction to a window or roof of the applicant’s Unit, and to the extent there is said to be loss of a view, is it a severe obstruction of a view, from the said dwelling, that existed when the applicant took possession of the Unit.
15. [15]
    There is however two other issues arising on the material, such which I will call together the ‘secondary issue’, which in my opinion, for completeness, I should also deal with in this proceeding. This is because of the provisions of s 3(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”) which requires this Tribunal to deal with matters in a way that is inter-alia economical and quick, and s 4(c) therein that provides for ensuring proceedings are conducted in a manner that inter-alia minimises costs to the parties and is as quick as is consistent with achieving justice. These are:

    1. The extent to which the applicant purports to act for and on behalf of the Body Corporate for the apartment complex in terms of the content of his application in regard to the assertions of an obstructed view and as to overhanging branches and debris in the pool; and
    2. Whether this proceeding should now be dismissed given my findings on the preliminary question and this secondary matter.

Relevant Law

16. [16]
    The primary issue falls to be decided under the provisions found in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘ND Act’), more particularly ‘Chapter 3 – Trees’ therein. For ease of reference, extracted here are the relevant provisions of that Act:

Part 1 Introduction

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.

…

44 Action may be taken in relation to more than 1 tree

1. To remove any doubt, it is declared that, if this chapter provides for doing a thing in relation to a tree, the thing may be done in relation to 2 or more trees.

2. …

Part 2 Interpretation

45 Meaning of tree

1. Tree means –

1. any woody perennial plant; or

2. …

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

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

1. (C)
   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. …

47 When is a tree situated on land

1. A tree is situated on land if the base of the tree trunk is, or was previously, situated wholly or mainly on the land.

2. …

48  Who is a tree-keeper

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. …

49 Who is a neighbour

1. Each of the following entities is a neighbour in relation to a particular tree or the tree-keeper for a particular tree –

1. if land affected by a tree is a lot recorded in the freehold land register under the Land Title Act 1994 –

1. a registered owner of the lot under that Act; and

2. …

2. if land affected by a tree is scheme land under the Body Corporate and Community Management Act 1997 – the body corporate for the community titles scheme;

3. …

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. …;

Part 3 Responsibilities, liabilities and rights

52  Responsibilities of a tree-keeper

1. A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.

2. A tree-keeper is responsible for ensuring that the tree does not cause—

1. serious injury to a person; or

2. serious damage to a person’s land or any property on a person’s land; or

3. substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.

3. ….

Part 4 Removal of overhanging branches

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 –

  [Details of that which the notice must contain or that which must be provided with it are detailed herein]

Part 5 QCAT orders to resolve other issues about trees

61 Jurisdiction

QCAT has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

62 Neighbour may apply to QCAT

1. The neighbour may apply, as provided under the QCAT Act, to QCAT for an order under section 66.

2. …

…

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. …;

3. to the extent the issue relates to the land being affected because branches from the tree overhang the land –

1. the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and

2. the neighbour can not properly resolve the issue using the process under part 4;

4. …

66  Orders QCAT may make

1. Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.

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

1. to prevent serious injury to any person; or

2. to remedy, restrain or prevent—

1. serious damage to the neighbour’s land or any property on the neighbour’s land; or

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

3. However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if –

1. the tree rises at least 2.5 me above the ground; and

2. the obstruction is –

1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or

2. severe obstruction of a view , from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

…

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

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

…

4. 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;

5. require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;

6. require the tree-keeper to pay compensation to a neighbour for damages to the neighbour’s land or property on the neighbour’s land;

7. require a report by an appropriately qualified arborist.

Division 4 Matters for QCAT consideration

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.

…

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 the 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;

…

…

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.

Discussion on the Evidence and Submissions before the Tribunal, and the Contest between the Parties

17. [17]
    As threshold issues, I am satisfied that for the purposes of the ND Act, the trees in issue are ‘trees’, those trees are situated on the respondent’s land, the respondent is the tree-keeper, the applicant is a neighbour,^[3] and the applicant’s land adjoins the respondent’s land, and whilst it is the subject of the primary issue the applicant’s land could, at least potentially, be affected by those trees, particularly in terms of  s 46(a)(i) and/or 46(a)(ii)(C) of the ND Act.^[4]
18. [18]
    I am also satisfied that the requirements of s 65(a), and s 65(c) to the extent the application raises issues of overhanging branches, of the Act have been met. This is so notwithstanding what I say in the next paragraph herein.
19. [19]
    As I noted it earlier herein, whilst the applicant conveyed his concern about the trees and sought an agreement with the respondent that he would take the requisite action to alleviate those concerns, at no time did the applicant provide a ‘Notice’ as it is referred to in s 57 of the Act, namely that as described in detail in subsection (3) thereof. But the provision of that notice is not mandatory. Whether to issue such a notice was a matter for the applicant’s discretion. The requirement for same is not a precondition to the applicant having filed his application in this Tribunal by which this proceeding was commenced. On any reading of exchange of correspondence to which I referred in paragraphs [9] and [10] herein, it is sufficiently clear to me that the issues could not properly be resolved using the process under Chapter 3 Part 4 of the ND Act, thus there being no utility in issuing the Notice.
20. [20]
    For these reasons, save only for what I say on the secondary issue concerning the body corporate, I do not see there is any statutory prohibition to the applicant pursuing the relief he seeks in this proceeding.

The secondary issue

21. [21]
    It is convenient to deal with the secondary issue first. Not only can it be disposed of quickly, in some respects it has a bearing on the primary issue.
22. [22]
    As I noted it earlier, the applicant seemingly purported to press his application in this Tribunal as Chairperson of the committee for the body corporate. Whilst the thrust of his argument was the asserted loss of his view from Unit 4, the manner in which he expressed parts of the application suggested it was as an argument by the body corporate members as a group, eg “the trees are becoming a problem for our pool” and “the hiher (sic) branches are overhanging into our property air space …”.^[5]
23. [23]
    As I mentioned it in paragraph [12] herein, Directions were issued by this Tribunal which were not entirely satisfied in terms of body corporate issues. Under the first of those directions, issued shortly after the proceeding was commenced, the applicant was directed to file inter-alia evidence by way of a resolution, minutes of meeting or a letter from the [Named] body corporate that:

    1. correctly identifies the body corporate;
    2. consents to the body corporate being joined as an applicant to these proceedings in lieu of the Johannes Cornelius van Bovene; and
    3. consents to Johannes Cornelius van Bovene being granted leave to represent the body corporate in these proceedings.
24. [24]
    By way of a document filed 10 February 2023, the applicant filed material which he stated was:

Evidence by way of a resolution from the committee meeting held 10^th January 2023 item 6 Other matters (sic) is attached:

…

II The Body Corporate Consents (sic) to the Body Corporate being joined as an applicant to these proceedings in lieu of the Johannes Cornelius van Bovene; and

III The Body Corporate Consents (sic) to Johannes Cornelius van Bovene being granted leave to represent the Body Corporate in these proceedings.

25. [25]
    This document is shown as purportedly having been signed by the applicant as Chairperson, and three other asserted Members of the body corporate committee, namely the Secretary, Treasurer, and an Ordinary Member.
26. [26]
    The Minute to which reference is made is expressed as follows:

The Owners of Unit 4 informed the Committee that they have lodged a case with QCAT concerning on (sic) a line of trees on a neighbouring property. The trees have grown to a height which obscures the water views that existed at the time of the Unit’s (sic) purchase. This has impacted adversely on the market value of Unit 4 and potentially on the resale of other units at [apartment complex named].

Motion by [person named]

That the Committee agree to reimburse the owners of Unit 4 for the cost of the QCAT application fee ($367). Other costs to me met by the owner’s (sic) of Unit 4.

Second [named person]

5 Yes

Discussion on the issue

27. [27]
    The applicant’s evidence does not show that which the applicant asserts it does. Thus, he did not comply with this Tribunal’s direction to provide the requisite evidence. The minute to which reference is made shows only a resolution by the committee to reimburse the applicant the application fee he paid to this Tribunal. It does not say anything about the body corporate being a party to this proceeding, or about the applicant being authorised to represent the body corporate in the action.
28. [28]
    It seems to me that the applicant fails to understand, or potentially he is entirely unaware of,^[6] relevant provisions of the Body Corporate and Community Management Act 1997 (Qld) (the “BCCM Act”), and/or the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) (the “BCCM Regulations”), namely:

    1. Under s 312(1)(b) of the BCCM Act, given that the proceeding is not a ‘prescribed proceeding’ as provided for under s 312(4) of that Act, the body corporate may start a proceeding, in the case of this proceeding in terms of its initial commencement purportedly for the body corporate members as a whole and/or in terms of the Direction issued for it to consent to be named as the applicant in this proceeding, only if the proceeding is authorised by a special resolution by the body corporate;
    2. Whilst under s 100(1) of the BCCM Act a decision of the committee is a decision of the body corporate, there is an exception to this under subsection (2) therein which provides it does not apply to a decision under the relevant regulation module that it is a decision on a restricted issue for the committee;
    3. In turn that requires reference to s 44(1)(e)(i) of the BCCM Regulations that provides for a decision to start a proceeding, or once again  in the case of this proceeding in terms of its initial commencement purportedly for the body corporate members as a whole and/or  in terms of the Direction issued for it to consent to be named as the applicant in this proceeding, is a restricted issue for the committee; and
    4. Given the restricted nature of the issue, any decision made by the committee that is asserted to have given the body corporate’s consent is not valid.
29. [29]
    Moreover, there is no such special resolution recorded in any minutes of a general meeting, be it annual or extraordinary, either as a resolution preceding the commencement of the action or subsequent to it which cures the absence of it being passed initially by way of a subsequent ratification,^[7] that has been put before this Tribunal to show that s 312 of the BCCM Act has been complied with.
30. [30]
    For these reasons, to the extent the applicant purported to commence and press this application for and on behalf of the body corporate, his actions were without statutory power and accordingly the proceeding is invalid. It must therefore follow that, to that extent, the proceeding must be dismissed.

The primary issue

31. [31]
    I thus now turn to the primary issue; it being left to be dealt with in terms of the applicant in his own capacity as the owner of Unit 4.
32. [32]
    It does not involve the question of overhanging branches. To the extent such was raised in the application, it was said such were overhanging scheme land. Thus it is limited to the issue of whether the Unit, it being the ‘land’ for the purposes of s 46 of the ND Act is affected by the trees on the respondent’s land to the extent that there is a substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of Unit 4. On the application as made, that interference is alleged to be the loss of a view which existed when he took possession of Unit 4, and an obstruction of sunlight into the main bedroom via the window. I deal with each of these in turn.

Obstruction of sunlight

33. [33]
    This can be disposed of succinctly, and so I address it first. The applicant raises it only in his application document. He did not provide any details or evidence of the extent and/or duration of the alleged obstruction. At its highest he made a bare assertion in his evidence filed 8 February 2024 under the heading ‘Summary’ as to the trees “reducing available sunlight”. Thus there is an absence of information on which any determination could be made as to the accuracy of this assertion. But, more particularly, the absence of anything by which it could properly be said to be a ‘severe obstruction’, such being a requirement under s 66(3)(b)(i) of the ND Act before this Tribunal can make any order in relation to the trees under s 66(2) of the ND Act.
34. [34]
    Put simply, I am unable to accept the applicant’s bare assertions in this regard as being a basis for making any orders relative to the trees. To the extent this issue arises in the application, I dismiss it as being a ground for the relief sought.

Obstruction of a view

35. [35]
    In addressing this issue there are two aspects to it that are necessary to take note of.
36. [36]
    Firstly, 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 referred earlier. It is that there is no general right at law to a view. Such has been the common law position since 1610 in England,^[8] and adopted in Australia,^[9] and in turn the position taken by this Tribunal over many years when considering tree disputes.
37. [37]
    As Alan Wilson J, the then President of this Tribunal, observed in 2013 in Laing v Kokkinos (No 2):^[10]

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.

38. [38]
    As Senior Member Stilgoe OAM, now President Stilgoe of the Land Court of Queensland, observed in 2015 in Vecchio v Papavasiliou:^[11]

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. ….

39. [39]
    As Senior Member Aughterson expressed it in 2020 in Bose v Weir:^[12]

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.”

40. [40]
    It is that law which must be applied to the resolution of the applicant’s complaint as to the alleged loss of a view.
41. [41]
    Very recently this Tribunal, in determining a tree dispute, had cause to address the issue of the loss of a view caused by trees and the application of that law. That was in Jarrett v Bliss. I respectfully adopt the following short passage from the learned Member’s reasons therein. This passage succinctly expresses the state of the law, and the caselaw from which it is sourced, as it relates to the issues for determination by me:^[13]

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.

42. [42]
    Thus, turning to that three step process, the following observations could readily be made from the documentary material the applicant put before this Tribunal.
43. [43]
    The primary step is a determination of the extent to which the applicant had a view at the time he took possession of Unit 4. This was the subject of the Direction given by this Tribunal to which I referred in paragraph [12](a) herein. The applicant’s evidence in response to that direction is that filed by him on 8 February 2024, such which is a number of photographs taken from various positions around the complex and said to be from the balcony of Unit 4.
44. [44]
    To the extent the photos contained therein are not shown as having been taken from Unit 4, I have disregarded them. As I understand the purpose of these other photos, they relate at best to a complaint concerning scheme land on behalf of the body corporate which I have already addressed as being without the proper statutory foundation to proceed with. If however I am wrong in that understanding and they were provided to somehow support the argument of a loss of a view, the photos do not support that argument. Thus, it leaves only:

    1. Photo 3 which is said to be a marketing photo taken in 2019 which shows a view from what is said to be the balcony of Unit 4. As noted in the caption to that photo, which I infer are words expressed by the applicant:

In the above photo the tress are visible in the glass panels.

Over these trees and over [two addresses are given of what is said to be adjoining land (# 26 and # 28) – # 28 being the respondent’s address] roofs, the view as shown in the photo 4 below was possible. This view was towards the SE (Geoff Skinner Wetlands in the foreground and bay views to North Stradbroke Island)

2. Photo 4 which, given the manner it is presented in contrast to Photo 5 which I refer to next, I infer is said to have been taken at the time the applicant took possession, with the following caption given to it:

Taken on the far right of our balcony and looking past the far left of the trees and over the roof. This view is towards the SE (Geoff Skinner Wetlands in the foreground and bay views to North Stradbroke Island)

3. Photos 5 & 6, which I understand is what is said to be the current view, with the following description and caption given to them:

The following show the extent of the tree growth: (sic)

There are approximately 20 of these trees (species Eumundi Quandong) which have been planted along the 12 m dividing fence … The trees have grown substantially since our purchase of Unit 4 in 2019, as seen in the photos below and have the potential (according to species data sheet) to reach up to 25 m.

1. Photo 5 – View from the far left of Unit 4 Balcony the yellow line shows the left side of the trees. A portion of the views is seen over [respondent’s address given] roof-line to the right.
2. Photo 6 – View from the far right of Unit 4 Balcony the yellow line shows the left side of the tress. No views are possible.^[14]

45. [45]
    The respondent responded to this asserted evidence in substantial detail, filing material on 19 February 2024.
46. [46]
    I do not consider it necessary to repeat all of that detail in these reasons however I do extract some of it as I consider to be directly relative and highly probative. But before doing so, I note here that the respondent has taken the time to diagrammatically show, in plan-view with the use of what appears to be google map images of the apartment complex, his land, and the adjacent land which also adjoins the apartment complex land, it being the other address referenced in the caption to Photo 3 which I mentioned earlier (ie # 26), the position from where the current view photos appear to have been taken and the direction in which the view is said to be found. That information was of great assistance to me. As is relevant, his arguments are as follows:

Photo 3 clearly demonstrates that in December 2019 … the 10 year old Eumundi trees already obscured the view along the boundary with [the respondent’s address]. Therefore, there has not been an interference of a view or a “severe obstruction of a view” because the view did not exist when the Applicant took possession of Unit 4.

…

Of significance, Mr van Bovene has not produced a current photo which is comparable to the view above as evidence to establish what view has been obstructed ...^[15]

Photo 4 is a misrepresentation … It is a current “zoomed-in” photo and does not indicate that any view has been lost …

This current view line is over the fence of [#26] and has nothing to do with the Eumundi trees at [#28] as it is not possible to get this view across the boundary with [# 28].

… the photo has been stretched to create a false impression of an expansive view.

47. [47]
    I am persuaded by the respondent’s arguments in response to the asserted evidence of the view that was said to have existed and has since been lost. I accept it as being correct. It carries substantially greater weight than I can attribute to the applicant’s evidence. Put simply, it is evidence that there was no view that has now been lost.
48. [48]
    I also form that opinion as a result of the following exercise I undertook. When I look closely at the applicant’s Photo 3, the existence of trees in the view line from the balcony are readily apparent. These are the trees in issue which existed at that time along the common boundary in 2019, which were at that time of a height such that they were above the top of the glass balustrade. This can be seen behind the chair with a striped cushion on it which is to the right hand side of the photo. These trees obscure what I understand to be the respondent’s house at # 28.
49. [49]
    When I compare this to what is shown in Photo 5, it appearing to have been taken whilst the photographer was standing to the left of where that chair is shown in Photo 3, but standing just in front of the glass balustrade, those same trees are visible. Moreover, the view that was visible to the immediate left of those trees in both Photo 3 and Photo 5 is essentially the same. As best I can make out, both photos show a corner of the respondent’s house and beyond it wetlands and then Moreton Bay with North Stradbroke Island in the distance.
50. [50]
    To the extent the applicant relies on Photo 6 to show what he says is a lost view, he has not provided any evidence to show what he says was the view from the location in which Photo 6 was taken that has been lost. Once again, doing the best I can on reading the entirety of the photos as they have been presented, at best Photo 6 shows that the trees which are seen in Photo 3 through the glass balustrade having simply grown taller with the passage of time. It does not show me any loss of a view. Accordingly my finding is that there was no such view, that is now said to be lost, in existence at the time the applicant took possession of Unit 4.
51. [51]
    Given this finding there is no need for me to consider the second or third steps of the test discussed in Jarrett v Bliss.
52. [52]
    However, having said that, I make these few extra observations in terms of the third step. These photos do one other thing which in my opinion is relevant here. They show the importance of that which this Tribunal may consider under s 75(d) of the ND Act, that being whether the trees existed before the applicant acquired Unit 4.
53. [53]
    It is common ground that these trees existed at the time the applicant acquired Unit 4. That being so, it seems to me that the applicant must also accept that these trees were already visible from the balcony of Unit 4 at a height which impeded, at least in part, the view from that balcony. Such is as shown in his Photo 3 as I referred to it earlier herein.
54. [54]
    Accordingly, it also seems to me that it was a matter for the applicant to have evaluated account when he was considering the purchase of Unit 4. The simple fact is trees will continue to increase in height as they grow until such time as they reach their maximum height or their end of life. If one of the aspects that drew him to acquire Unit 4 was the view, it should be expected that he would have taken the time to at the very least enquire as to what may be the case in years to come with the trees in question and whether the adjoining property owner had in mind the need to keep them at a certain height to maintain any view that the new residents of the apartment complex may have had at the time of purchase. He did not present any evidence to that effect.
55. [55]
    I should also add these two comments for completeness.
56. [56]
    In my opinion there was not, and could not have been, any expectation of an obligation being cast upon the respondent when he planted these trees to be aware of the need to maintain, and to be responsible for maintaining, any view that a person may have in the future when they took possession of a dwelling on the adjoining land to the west of his land, which was at the time of planting not in existence. That is the case here. As I understand the evidence before this Tribunal, there was no such relevant dwelling in existence at that time, the apartment complex in which Unit 4 exists not having been constructed. This is to be compared directly to the circumstance where a land owner plants trees that will grow and block a view from a dwelling that existed when the trees are planted.
57. [57]
    In addition, in my opinion when a person acquires a dwelling from which there is a view, but there are trees already in existence on adjoining land that could readily grow to block that view, such which the evidence shows were planted before that dwelling was even constructed, there must be serious extenuating circumstances to dictate the need for a burden to be cast upon the tree keeper to take steps to maintain that view. It must be the case that with the passage of time the view will be lost, that being a factor that the person acquiring the dwelling must factor into his/her decision to acquire the dwelling.
58. [58]
    Moreover, in such instance it would be a factor which must be taken into account when considering the question as to whether there is a ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’, and more importantly whether there has been a ‘severe obstruction of a view’. In all respects, it is my opinion that which would, with the passage of time, result in the loss of a view with the growth of trees naturally could not be said to be an ‘unreasonable interference’ or a ’severe obstruction’.
59. [59]
    These factors are those which are relevant and applicable in the circumstances in this proceeding. It is on the basis of these factors that I was able to readily conclude that there is no substantial, ongoing, and unreasonable interference with the use and enjoyment of the applicant’s land caused by the trees on the respondent’s land.

Conclusion

60. [60]
    Put simply, I did not accept the applicant had made out any case for remedial action to the trees. He was directed to provide evidence of the view he had lost. He did not do so. Thus, his case lacked an evidentiary basis.
61. [61]
    As I noted it in paragraph [12] herein, procedurally it was a preliminary matter ultimately that came before me for determination in this proceeding, namely the question of whether there is a substantial, on-going, and unreasonable interference with the use and enjoyment of the applicant’s land by him. For the reason I have just given, one explained in detail within this reasons document, in all respects not only was the manner in which the applicant purported to commence the proceeding as a representative of the body corporate entirely misconceived, his case to the extent it dealt with his asserted loss of view from Unit 4 and alleged blocking of sunlight into that Unit was also misconceived. It was without substance. Thus, the question must be answered in the negative. I express that answer by way of a declaration given within the power afforded this Tribunal to do so under s 60 of the QCAT Act. An order was made to that effect.
62. [62]
    That being the conclusion I reached, in the manner contemplated by s 47(1)(a) and (b), s 47(2)(a), and s 60(2) of the QCAT Act, it seemed to me appropriate in such circumstance to bring this proceeding to a close by dismissing the application. With such a declaration made, there was no premise for its continuation. An order was also made to that effect.