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- Unreported Judgment
Bose v Weir QCATA 7
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Bose v Weir  QCATA 7
17 January 2020
On the papers
Senior Member Aughterson
The appeal is dismissed.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where appeal on question of law – whether error by tribunal
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstructed a view that previously existed – where no dwelling on the land at the time of registration of neighbour’s interest in the land – whether dwelling present when neighbour took ‘possession’ of the land within meaning of the Act
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(2)(a), s 117, s 142
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(3)(b), s 49, s 62, s 66, s 75
Birnbaum v Akero  QCATA 18
Bose v Weir  QCAT 352
Bose v Weir (No. 2)  QCAT 448
Craig v South Australia (1995) 184 CLR 163
KLDE Pty Ltd (In Liq) v Commissioner of Stamp Duties (1984) 155 CLR 288
Laing v Kokkinos (No 2)  QCATA 247
Mahoney v Corrin  QCAT 318
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford  QCATA 203
Nichol v Campbell  QCATA 204
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Penev v County Court of Victoria  VSC 143
The Queen v Australian Broadcasting Tribunal (1980) 144 CLR 13
Vecchio v Papavasiliou  QCAT 70
Jason Nott Solicitors
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The question arising under this appeal is when does a person take ‘possession’ of land for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
- The appellants were the applicants in the initial application to the Tribunal for a tree dispute. They claimed obstruction of a view from a dwelling on their land caused by trees growing on the adjoining land of the respondent.
- 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.
- Given that the view must exist when the neighbour takes possession of the land, questions arises as to when ‘possession’ takes place and whether there must be a dwelling on the land, from which a view is available, at that time. When the appellants became registered owners of their land in April 2013 it was vacant land. They built a house there in December 2013. A pre-existing dwelling on the land had been removed prior to the registration of their interest.
- On 23 May 2017, the Tribunal determined that if there is no dwelling on the land at the time of taking possession of the land then there is no view that is protected by the Act and, further, that where, as here, the neighbour is a registered owner, ‘possession’ arises when clear title passes to them. The Tribunal made a declaration that for the purposes of s 66(3)(b)(ii) of the Act there was no view from a dwelling on the appellants’ land when they took possession of the land. Submissions were then invited addressing the question of whether, on that basis, the application for a tree dispute should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). On 11 December 2017, having concluded that the Appellants were unable to establish the jurisdictional fact necessary for the Tribunal to make the orders sought, the Tribunal dismissed the application.
Grounds of appeal and submissions
- An appeal under the QCAT Act on a question of law is as of right. It was submitted by the appellants that the Tribunal misdirected itself as to the proper meaning of the term ‘possession’ in s 66 of the Act. In essence, it was argued that the Tribunal misdirected itself in finding that ‘possession’ arose when the appellants took ‘control of the land to the exclusion of all others’, through registration of their interest in the land.
- It was submitted by the appellants that ‘possession’ within the meaning of the Act arose when either:
- (a)the appellants took possession of the constructed house on the land; or
- (b)the contract for the sale of the land to the appellants became unconditional, at which time the pre-existing dwelling was still on the land.
- The appellants submit that the Tribunal at first instance wrongly relied on the decisions in Vecchio v Papavasiliou and Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford for the proposition that, for the purposes of s 66 of the Act, a neighbour who is a registered owner of land takes possession when clear title passes to them. It is submitted that those cases are distinguishable or, alternatively, they should not be followed.
- The decision in Vecchio is directly on point. In that case, when the neighbour took possession of the land there was no dwelling on the land. It was held that if there is no dwelling on the land at the time of taking possession, then there is no view that is protected by the Act. The neighbour bought the vacant block of land in 2008 and built a dwelling there in 2010. At least implicitly, in finding that there was no view capable of protection under the Act, the Tribunal proceeded on the assumption that possession arose in 2008, when the land was purchased.
- While the facts in Neverfail differ from those in the present case, the adopted principles are consistent. Neverfail concerned a house that was extensively renovated subsequent to the purchase of the property, including through some movement in the location of the entire dwelling. As noted in that case, the Act contemplates a comparison between a view that existed at the time of taking possession and that which existed at the time of the hearing before the Tribunal; that is, ‘the same view must be capable of assessment at differing points in time’. It was added:
It is uncontroversial for the purposes of applying and interpreting the NDA generally, that home renovations which include, for example, the construction of decks, additional rooms and additional levels are commonplace. A view that exists from an after possession addition such as a deck, a living area or a kitchen may be entirely different however to the view that existed from the original dwelling. In these circumstances s 66(3)(b)(ii) requires a consideration of the view as it existed from the original dwelling shorn of any after possession additions and alterations, and an assessment of that same view from the dwelling presently.
- In Neverfail reference was also made to a ‘second possible interpretation’ of s 66(3)(b)(ii) of the Act: that the view alone at the time of taking possession is determinative and that it is not necessary that it be from a dwelling; that is, ‘a neighbour may acquire vacant land from which there is a view, and subsequently a dwelling is built on the land and it is the obstructed view from the dwelling that the section addresses’. In relation to that possible interpretation, it was stated:
If the second interpretation is applied, s 66(3)(b)(ii) requires a comparison between (for example) a view that existed when standing on vacant land, and a view from the upper level of a two story dwelling subsequently built on the land. Such comparison requires consideration of very different views from completely different viewing points and clearly could not have been contemplated by the legislature.
- In Neverfail the Tribunal addressed the question of when ‘possession’ arises. After noting that the term ‘possession’ is not defined in the Act and that it should therefore have its ordinary common law meaning ‘in the context in which the word appears and the broader objects of the Act’, it was added:
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, eg. 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.
- As is noted at  above, the appellants submit that ‘possession’ arose for the purpose of the Act either when the appellants constructed the dwelling on the land or when the contract for the sale of the land became unconditional. Each of those submissions is addressed in turn.
‘Possession’ when house constructed
- The appellants submit that ‘possession’ within the meaning of s 66(3)(b)(ii) of the Act arose when they constructed and took possession of the dwelling on their land. While they became registered owners of the vacant land in April 2013, they did not build their dwelling until December 2013. It was submitted that the approach taken in Neverfail is too restrictive and, further, that in other cases the tribunal has equated physical residence with possession. Reference was made to Mahoney v Corrin and Birnbaum v Akero.
- In Mahoney, a question of law was referred to the President pursuant to s 117 of the QCAT Act, as to whether the Tribunal had jurisdiction to hear and decide an application in relation to a view that existed prior to the commencement of the Act and which view no longer existed after commencement. It was held that there was jurisdiction. While the underlying facts were that the dwelling was built after purchase of the land, that factor and the meaning of ‘possession’ were not considered. Though the Tribunal did note: ‘It is not the purpose of the NDA to provide an applicant with greater or better views that those that existed at the time of purchase’.
- In Birnbaum v Akero both the appellant and the respondent bought the land in question when the estate was first developed. They built dwellings there. On appeal, it was submitted that at the hearing at first instance there was no evidence and no findings in relation to views from the land at the time of taking possession of the land. While it seems to have been assumed by the Appeal Tribunal that ‘possession’ referred to possession of the dwelling rather than possession or purchase of the land, there was no discussion of that issue. It seems that the argument before the Tribunal centred on whether or not a view existed at the time of first taking up residence in the dwelling.
- A submission in terms of the present submission was rejected in Nichol v Campbell, the Appeal Tribunal noting that at law ‘a person takes possession of land when they are entitled to rents and profits from the land’ and, in that case, possession arose when the lot was purchased. It was added that there was nothing in the sub-section to suggest that the words adopted, taken in their statutory context, should be interpreted differently.
- As noted by the learned Senior Member in the decision at first instance, the term ‘possession’ should be read in the context of the relevant section of the Act and the Act as a whole. In that regard, reference is made above to what was said in Neverfail. It is also noted that by s 75 of the Act, certain matters may be considered by the Tribunal where it is alleged that a tree causes ‘unreasonable interference, including, at 75(d), ‘whether the tree existed before the neighbour acquired the land’ (emphasis added). Further, s 66(3)(b)(ii) itself refers to taking possession of ‘the land’.
- More generally, in my view, it is unlikely that it was intended that the ‘right’ to a view extended to circumstances where the dwelling, from which a view is now claimed, did not exist at the time of acquisition of the property. That is because it would create uncertainty for the adjoining owner in relation to the management of their land. Where there is a dwelling on a neighbour’s land, the adjoining owner is cognisant of that fact and of any available views from that dwelling when planning the planting of trees. However, where no dwelling exists but the potential ‘rights’ of the neighbour arise regardless, the adjoining owner not knowing where a dwelling might be built on the neighbour’s land would be placed in the position of not being able to plan their tree planting with any confidence. A dwelling might be built by the neighbour many years after acquisition of the land and at any point on the lot. The trees that have been planted on the adjoining property may now block a view from the new dwelling; a view that existed from that vantage point when the vacant land was acquired. The impact on the capacity of the adjoining owner to manage their land could be considerable, given that the relevant provisions of the Act extend to parcels of land of up to 4 hectares. A future dwelling might be built on the neighbour’s land anywhere along a very long boundary.
- The special position of real property is embedded in our legal system, protecting the interests of land owners. This has been reinforced by land registration systems, so that there can be no doubt as to ownership of real property and as to any limitations and obligations relating to that ownership. While there have been legislative incursions on rights pertaining to real property, the historical development of the law and the need for certainty is a relevant consideration in ascertaining the intention of the legislature. As noted by Kirby J in North Ganalanja Aboriginal Corporation v Queensland: ‘In land law certainty is a dominant demand of any mature legal system’.
- For the reasons outlined, the submissions of the appellants that ‘possession’ arose when a dwelling was built on the land, subsequent to registration of the appellants’ interest in the land, should be rejected.
‘Possession’ when contract for sale of land unconditional
- In the alternative, the appellants submit that ‘possession’ within the meaning of s 66(3)(b)(ii) of the Act arose when the contract for their purchase of the land became unconditional. That submission is premised on there being a dwelling on the land at that time. That pre-existing dwelling was removed prior to the registration of their interest.
- Reference is made to The Queen v Australian Broadcasting Tribunal and KLDE Pty Ltd (In Liq) v Commissioner of Stamp Duties, for the proposition that a purchaser is the beneficial owner of property when they can, by specific performance, compel a transfer of property under a contract of sale. It is not made clear how those decisions assist in determining the meaning of ‘possession’ in s 66(3)(b)(ii) or the terms ‘neighbour’, ‘registered owner’ and ‘occupier’ in the related provisions at ss 62 and 49 of the Act.
- The difficulty with this submission is that, by s 62 of the Act, only a ‘neighbour’ may apply for an order under s 66 of the Act. By s 49, where land is registered under the Land Title Act 1994 (Qld), a ‘neighbour’ is a registered owner of the lot or an ‘occupier’ of the land. The term ‘occupier’ is not defined. By s 62(2), where the land is registered and the occupier is not the registered owner, the occupier may make the application only where the registered owner has refused to do so. Accordingly, in the context of the present matter, for the purposes of s 66(3)(b)(ii) of the Act, the question is one of what view existed from a dwelling ‘when the neighbour took possession of the land’. The appellants did not become ‘neighbours’ in the relevant sense until they acquired a registered interest. At that time, there was no dwelling on the land.
- This submission also should be rejected and, for the reasons outlined, the appeal should be dismissed.
  QCATA 203, .
 Though, strictly, as noted in Laing v Kokkinos (No 2)  QCATA 247, , the ‘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’.
 Bose v Weir  QCAT 352, .
 Ibid -.
 Bose v Weir (No 2)  QCAT 448.
 The QCAT Act, s 142(1). Compare s 142(3)(a)(ii) of the QCAT Act, in relation to a decision that is not a final decision in the proceeding. In the present case, the interpretation of the term ‘possession’ was central to the final determination of the matter.
 The proper interpretation of a statutory provision is a question of law: Penev v County Court of Victoria  VSC 143, ; Craig v South Australia (1995) 184 CLR 163, 179-180; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, .
  QCAT 352, -.
  QCAT 70, .
  QCATA 203, -.
 See also Laing v Kokkinos (No 2)  QCATA 247, referred to in Vecchio, where it was stated, at : ‘It is not the purpose or intent of the Act to provide an applicant with greater or better views than those which existed at the time of purchase’.
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
  QCAT 318.
  QCATA 18.
  QCAT 318, .
  QCATA 204.
 Ibid .
 Bose v Weir  QCAT 352, .
 The Act, s 42(3)(b).
 (1996) 185 CLR 595, 664.
 Ibid .
 (1980) 144 CLR 13.
 (1984) 155 CLR 288.
- Published Case Name:
Bose v Weir
- Shortened Case Name:
Bose v Weir
 QCATA 7
Senior Member Aughterson
17 Jan 2020