Queensland residential property owners – whose view or sunlight is substantially affected by vegetation on neighbouring land – can require the offending trees be pruned or removed to preserve the view that existed whenever they “took possession” of their home, even if that date was decades ago.

That is the result of a recent Queensland Civil and Administrative Tribunal ruling.

Although the Neighbourhood Disputes (Dividing Fences and Trees) Act only came into force in November 2011, the QCAT ruling confirms that it has a retrospective application dating back to when the neighbour moved in to their home or any date after when trees or foliage began to encroach on the outlook from any part of the home or impede sunshine entering through a window or onto the home’s roof.

Helen and Peter Mahoney – residents of 9 Soden St Greenslopes home since the 1980s – began to lose their city views a decade before Jennifer Corrin purchased the adjoining 8 Rowsley St residence in 2001.

They had no doubt resigned themselves to only the memory of their former northerly view from the Chatsworth Road ridge, until the start of the NDDFTA ten years after their new neighbour’s arrival.

Wasting no time, Helen Mahoney filed a tree dispute application in QCAT in February 2012. It was met with the argument that the Act could not operate retrospectively i.e. in respect of views that were already extinguished or impeded before its start date.

The tribunal decided otherwise. Subject to a factual determination, Ms Corrin may now be required to incur the expense of removing her “urban jungle” so that the 1980s outlook from the verandas of Mahoneys’ elegant Queenslander can be re-established.

The universal implications of this ruling are obvious. Every homesite in Queensland is potentially affected one way or the other.

This is in addition to the right to demand from neighbours up to $300 annually to cover the cost of removing overhanging tree branches or invasive tree roots.

The NDDFTA even allows QCAT sunlight and view restoration orders – in the case of genuine neighbour disputes – to override vegetation protection and other state and local environmental laws.

But there are limitations.

The obstruction of sunlight through a window or of a view must amount to “substantial ongoing and unreasonable interference” and pertain to trees or their foliage 2.5 m above ground level or higher.

Second, the right attaches to the owner and is lost at the time of sale. So while a vendor may have an entitlement to require a neighbour to remove a view-obstructing tree, a subsequent owner’s right is only to require the offending vegetation be kept pruned so that the view or sunlight at the date of that owner’s occupation, is not materially worsened.

Even if tree removal proceedings are commenced in QCAT prior to the date of sale, the better interpretation of the NDRA appears to be that the dispute could not be “taken over” by a subsequent owner and any such proceedings would lapse upon the change of ownership.

If this interpretation is correct, it will become prevalent for buyers to insist that the vendor exercises such right as regards neighbouring trees prior to contract or settlement.

Moreover, it will now become commonplace for buyers to conduct a pre-purchase assessment as regards the vegetation on the property they intend to buy to determine the inherited risk and potential expense of tree removal from the grounds of their dream home.

The ADL and REIQ contract forms – while alert to the possibility of QCAT applications and orders – do not accommodate this issue.  Most likely it will fall to the listing agent to make the necessary enquiries of neighbouring owners and of the age of trees on the subject and adjoining sites.

Readers requiring the preservation of sunlight or views to be managed, particularly in the context of residential sales, should email Peter Carter or Aaron Zycki or call to discuss.

Mahoney v Corrin [2013] QCAT 318 Brisbane Justice Alan Wilson, President 9/07/2013


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