A homeowner who moved and raised her dwelling has won a court order compelling the removal of her neighbour’s 9 m Chinese Elm that obstructs her city views which have been estimated by local agent to add at least $500k to the value of her prestige Auchenflower colonial.

viewWhen Dr Kathryn Radford acquired her Haig Rd residence in late 2003 the city skyline views to the East were already partly obstructed by garden vegetation on her neighbour’s property.

But when in mid-2005, Zinta Harris and husband Craig acquired 32 Bangalla Street – neighbouring their residence at No 30 – they cleared most of the ‘offending’ vegetation leaving the small Elm which thrived on exposure to greater sunlight.

Dr Radford swore she first observed the immature Elm – a declared pest in Queensland – at the end of 2005 and that it grew rapidly so by spring 2012, her view had become “severely obstructed”.

After the refusal of her offer to remove the tree at her own expense, Radford filed a QCAT application for a tree dispute in the Tribunal in February 2014.

The Harris’s contended Radford was not entitled to a tree removal order because she had only gained her expansive outlook due to their clearing of pre-existing vegetation, had raised her home and that in any event, the view was not severely obstructed.

To prove that the views pre-dated the rapid explosion of the Elm’s foliage, Radford produced photographs depicting the outlook back in 2003.

She also called local Space realtor Angela Mastrapostolos – who swore that at the time of her sale to Radford, the rear of the home commanded city views as did its eastern veranda – for independent corroboration.

The court appointed experts agreed that the tree was at least five years old in July 2005, and was therefore in existence at the time Dr Radford purchased her property. They also agreed that the city skyline views would have been largely obscured by the pre-existing garden vegetation in 2003.

QCAT tribunal member David Paratz did not think the earlier obstruction of the view by pre-existing foliage constituted any impediment to an order for the removal of foliage that grew up in its place .

But what was the significance of moving the house and raising it by 1.6m since 2003?

Noting that the “footprint of the old and new position overlap significantly”, and that the former deck outlook was 1.6 m lower, the tribunal noted “an observer could still today look from the dwelling at the same height as the eye-level of an observer when the land was taken possession of by Dr Radford”.

There were in fact still positions in the dwelling from which the pre-existing outlook could be viewed.

“The fact that the city view is currently obscured from the top level”, ruled member Paratz “highlights the height and obstruction of the tree, as it is obscuring a view from 1600mm higher than the view that was enjoyed when Dr Radford bought the house”.

To establish the Neighbourhood Disputes (Dividing fences and Trees) Act a tree removal pre-requisite of “substantial ongoing and unreasonable interference with her use and enjoyment of her land,” Radford contended that because of the obstruction of her outlook, she made less use her lounge, outside dining and veranda areas.

“Friends and family no longer come to celebrate Christmas, New Year or River Fire,” she argued and the loss of the pre-existing view has also devalued her home significantly.

The tribunal had no hesitation in holding that the complete obstruction of a city view is unquestionably substantial and ongoing. “A city view is obviously a prized feature of a home, and reflects on its desirability and value”.

Ms Mastrapostolos had assessed the value of the house without city views as worth $1.5 million and with city views as $2 million.

Dr Radford has been ordered entitled to remove the Elm and replace it with a smaller tree and for that purpose to gain access to the Harris’s property.

Radford v Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Ors [2015] QCAT 334 Member Paratz 31/08/2015


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