The explosion in tree litigation and boundary disputes to re-gain panoramic views and exposure to sunlight has taken a new twist with Oxenford owners claiming health detriments as a result of obstruction of sunlight to their apartment.

Robin Brown and Peter Diamond claim in their QCAT petition that bamboo that allowed to thrive on the block adjoining their units lead to health issues, mildew and washing “not drying as quickly as it should”.

Unfortunately the tribunal did not get to consider the claims because the applicants were not a “neighbour” as defined in Neighbourhood Disputes (Dividing Fences and Trees) Act (NDDFTA) and hence had no “standing”.

Section 49 requires that to be able to bring a tree removal complaint, the applicant must be a “registered owner” or “occupier” of “land” under the Land Title Act (or a body corporate), rather than being the owner of a unit whose title is derived from the Body Corporate and Community Management Act.

In the absence of evidence that they were authorised to act on behalf the body corporate in bringing the application, the tribunal declined to proceed.

We will have to wait and see if the body corporate proceeds with the application on their behalf and if it does, whether the tribunal agrees the obstruction from the bamboo is a “substantial ongoing and unreasonable interference with the use and enjoyment” of the unit owners’ land.

Brown & Anor v Wallace [2014] QCAT 461 Member Hughes 17/09/2014


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