It was decided 410 years ago, in the English case of Aldred’s Case (1610) 9 Co Rep 57B, that a landowner isn’t entitled to any legal remedy at common law if trees obstruct the landowner’s view. This position was adopted by Australia in 1973.
Some 400 years later, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) created a statutory exception to that rule for Queensland landowners.
If you have lost your view, or it has been severely obstructed because of a tree (or trees) growing on your neighbour’s property, you may have grounds to seek an order from the Queensland Civil and Administration Tribunal (QCAT) to get that view back.
You may also have grounds to obtain an order if it’s likely that you will lose your view, or it will be severely obstructed, within the next twelve months.
What can I do?
The first step is to determine whether you qualify for a ‘view keeper order’ by ticking off the requirements on our ‘view keeper checklist’.
The view keeper checklist:
- The view must be one that can be seen from a house that’s owned and occupied by you. Alternatively, the view may be from a house that’s not owned by you but is occupied by you and the owner of the house has refused to make an application for a ‘view keeper order’.
- The view you lost was from a house on your land that existed at the time that you became the owner of the land. In other words, if there was no house on your land when you became the owner of the land, then there is no view that can be protected. Even if you constructed a house on the land after becoming the owner of the land, there is still no view that can be protected.
- The tree (or trees) must be growing on land that’s adjoining your house or would adjoin your house if it were not separated by a road. In other words, if there is a road between your house and the land on which the tree(s) are growing, you are still entitled to bring a claim.
- If the land on which the trees are growing is rural land, or is more than 4 hectares in area, or is land owned by Council that is used as a public park, the view cannot be protected.
- You cannot seek to protect your view if the trees were planted or maintained for commercial purposes or are under an order of a court or tribunal or as a condition of a development approval.
- The trees must be at least 2.5 m high before you can seek an order to protect your view.
- Your neighbour is the owner (or the body corporate) of the land on which the tree/s are growing.
- Your neighbour is not the owner (or the body corporate) of the land, but your neighbour is the lessee or licensee of the land under the Land Act 1994 or the grantee of an occupation or stock grazing permit under the Forestry Act 1959, or the grantee of a stock grazing permit under the Nature Conservation Act 1992.
- The obstruction of the view must be completely lost or, at the very least, is severely impacted.
Determining whether an obstruction is severe is no simple task. It involves QCAT undertaking an assessment of the views that are affected, to consider from what part of the property the views are obtained and the reasonableness of protecting the view. It must also assess the impact of the interference by the tree(s) to the views of the whole property, not just for the view that is affected.
If you are able to satisfy the requirements of our ‘view keeper checklist’ then you may have grounds for a ‘view keeper order’ from QCAT.
Before seeking an order, your first step should be to approach your neighbour and discuss the situation to see if a mutually beneficial solution can be reached. For example, you may offer to meet the cost (or contribute to the cost) of having the trees pruned to an agreed height so that your view is restored. Not only is this an opportunity to resolve the matter at an early stage, but it’s also a step that must be taken before you can apply for a ‘view keeper order’. You must be able to prove that you made a reasonable effort to reach an agreement with your neighbour.
If you can’t resolve the matter with your neighbour, then the next step is to file an application for a ‘view keeper order’ with QCAT.
It’s important to remember that even if you satisfy our ‘view keeper checklist’ and QCAT finds that the obstruction of the view is severe, QCAT must still be satisfied that the interference with the use and enjoyment of your property is substantial, ongoing and unreasonable as a result of the interference. QCAT must take into account a variety of competing considerations before it can make an order in your favour.
Views inevitably add value to your property, and depending on the view in question, that value could be significant. So, if you want the very best chance of getting a ‘view keeper order’, it’s worth seeking expert legal advice before applying for the order.
The team at Axia is experienced in all aspects of litigation and dispute resolution and is well-placed to advise and assist you with such matters. Don’t hesitate to contact us to arrange an initial consultation with one of our team members. At Axia Litigation Lawyers – EVERY MOVE MATTERS!