Woulfe v Smith[2024] QCAT 574

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   Mr and Ms Woulfe own a property, the view from which they say is negatively impacted by several trees growing on an adjoining property owned by Mr Smith and Ms Maufrais.
2. [2]
   By an application for a tree dispute filed 12 December 2023, Mr and Ms Woulfe seek orders that the trees be pruned to a reasonable height that establishes the views they have previously enjoyed from their property. Because Mr and Ms Woulfe purchased their land as a vacant block and built their dwelling on it later, a preliminary issue of jurisdiction arose under s 66(3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA), determined herein.

What laws apply?

3. [3]
   Chapter 3 of the NDA applies to trees situated on land recorded in the freehold land register^[1] (subject to some exclusions) and tree keepers are responsible to their neighbours for their trees.^[2]  
4. [4]
   Section 46 of the NDA provides, relevantly that:

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

(a) any of the following applies—

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

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

(b) the land—

(i) adjoins the land on which the tree is situated…

5. [5]
   It is not disputed that Mr and Ms Woulfe are neighbours of Mr Smith and Ms Maufrais, nor that the latter are tree keepers for the purpose of the NDA.
6. [6]
   Under s 66(2) of the NDA, the tribunal can make orders against tree keepers in relation to their trees to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
7. [7]
   Per s 66(3), s 66(2)(b)(ii) applies to interference with a view only if (emphasis added):

   1. the tree rises at least 2.5m above the ground; and
   2. the obstruction is severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
8. [8]
   According to Queensland Titles Registry records, the Woulfes took possession of their property on or around 20 May 1997. It was a vacant block of land at the time.  Therefore, the Woulfes cannot establish a view that existed from a dwelling when took possession of the land, because no dwelling had been built.
9. [9]
   In Nichol v Campbell [2016] QCAT 57 Member Guthrie observed:

There is no general right to a view in Queensland. The Act creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. In Vecchio v Papavasiliou [2015] QCAT 70 the learned Senior Member considered s 66(3)(b)(ii) of the Act and said that the section creates a right to a view from a dwelling that existed at the time the neighbour took possession of the land. The learned Senior Member stated:^[3]

If there was no dwelling at the time the neighbour took possession of the land, then there was no view that is protected by the Act.

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

[41] Following the reasoning in Vecchio v Papavasiliou, as there was no dwelling at the time Mr and Mrs Nichol took possession of the land, because there was no house, there was no view capable of protection.

10. [10]
    The Tribunal in Nichol noted the focus is on the absence of the dwelling on the applicants’ land, rather than the view from the land that existed at the time the neighbour took possession.
11. [11]
    Vecchio was upheld by the Appeal Tribunal in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 who noted that what s 66(3)(b)(ii) requires is a comparison between the same two (or more) viewing points – the view that existed when the neighbour took possession of the land and that said to be presently obstructed. This comparison cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the dwelling, at the time of the hearing.
12. [12]
    Based on the reasoning in Vecchio, upheld in Neverfail and applied in Nicol and in Hammond v Leighton [2017] QCAT 178, the Tribunal finds that s 66(3)(b)(ii) of the Act is not satisfied in this case. Pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the application for a tree dispute is therefore dismissed.