QCAT has jurisdiction to hear any matter in relation to a tree which land is affected by as per section 61 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act).
Section 66(2) of the Act provides that:
“QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land
…
(a) to prevent serious injury to any person; or
(b) to remedy, restrain or prevent—
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land.”
Initially, it is the Applicant’s responsibility to prove the trees in dispute are causing, or are likely to cause, serious damage to the Applicants’ property, or whether the trees are to cause substantial, ongoing, and unreasonable interference with the use and enjoyment of their property. This can include blocking a view.
Jurisdiction
In the case of Mahoney v Corrin [2013] QCAT 318, QCAT had to consider:
“Does the Tribunal have jurisdiction to hear and decide an application in relation to a view that existed prior to 1 November 2011 (i.e. the commencement of the Neighbourhood Disputes Act) but did not exist after the commencement date?”
Ultimately, QCAT held that that section 66 of the Act was not retrospective in character and that it does have jurisdiction to hear and decide an application in relation to a view that existed prior to the commencement of the Act but did not exist following the commencement of the Act.
QCAT placed emphasis on the fact that 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’.”
Accordingly, QCAT may have jurisdiction to hear a matter whereby a tree has been in existence on a property prior to the commencement of the Act.
Is a tree impacting your view?
If view impediment is an issue, a matter for consideration is whether the Applicants had a view at the time they took possession of their property, and the extent of the view. However, there is no general right to a view from a person’s land, nor does the Act “create” one.
The Queensland Law Reform Commissions 2015 Review Paper of the Act, provides that the natural and ordinary meaning of the term view is:
“a single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis.”
Moreover, subsection 66(3) of the Act enables the Tribunal to make orders relating to a view, and in particular, “a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land” only if:
(a) the tree rises at least 2.5m above the ground; and
(b) the obstruction is—
(i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
(ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
There are several limitations to the operation of section 66(3) of the Act about obstruction of a view. The trees or their foliage obstructing the view must be “at least 2.5m above the ground”, it must be a “severe obstruction” of a view, the view must be “from a dwelling” on the neighbour’s land, and that view must have “existed when the neighbour took possession of the land”.
Moreover, in the case of Jarrett v Bliss [2024] QCAT 234 at paragraph 9, QCAT identified a three-step process to determine whether a view has been obstructed:
“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.” .
As regards “severe obstruction,” the term is not defined in the Act. However, in Laing & Anor v Kokkinos & Anor (No 2) (2013) 170, QCAT held that in the context of the Act, the word ‘severe’ means ‘the obstruction must be considerable’.
QCAT may also have regard to the significance of the view. In Laing & Anor v Kokkinos & Anor, QCAT adopted a three-step test to assess the value of a view:
“Step One: Identify and value the type of views affected noting that water views and iconic views are valued more than views not of those things, and whole views are valued more highly than partial views;
Step Two: Identify the part of the dwelling where the views exist and the reasonableness of protecting views from such areas. For example, “sitting” views are more difficult to protect than “standing” views; and
Step Three: Assess the impact of the interference to the views of the whole property, not just for the view that is affected. For instance, views from living areas and kitchens are more significant than from bedrooms or service areas.”
Ultimately, QCAT had to balance the interests of maintaining a tree in its current proportions along with its contributions to the natural landscape scenic value and landscaping of the property, against the neighbours whose views had been “severely” obstructed i.e. QCAT may take into account the view and place emphasis on “water” or “hinterland” views. QCAT may also consider the purpose of the trees, for instance, if it provides shade or is an attraction for wildlife.
Do the trees overhang and drop leaves and debris?
In the case of Edmonds v Yeates and Anor (2013) QCAT 7, it was determined that:
“The dropping of leaves, flowers … or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of, or intervention with, an urban tree”.
Dependent upon the extent of the dropped materials, there may be an argument available that the leaf litter and debris are a natural incidence, and therefore do not constitute a substantial, ongoing, and unreasonable interference.
Milne Legal can assist you with, and advise in relation to, your town planning and environmental law matters, including tree disputes. If you would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.