If you’re thinking about purchasing a picturesque property overlooking a scenic vista, please bear in mind that property owners do not have a legal entitlement to a view in Australia.
Sometimes, the risk to your view arises from new development. If so, you may be able to make submissions to your local counsel to oppose the development application. If submissions are made, local council will be obligated to consider in their assessment process. However, there is no guarantee that they will have any bearing on the outcome of the application.
This can be a significant issue for homeowners, especially where a view forms a substantial portion of a property’s value.
What about other sight blockers, such as trees?
Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Act”) “tree keepers” (persons who possess trees on their property) have a responsibility to cut and remove any tree branches that overhang a neighbour’s land.
The Act places an obligation on a tree keeper to ensure a tree does not cause ‘substantial, ongoing or unreasonable interference with a person’s use and enjoyment of their land’.
The question then becomes whether a person’s use and enjoyment of their land extends to a right to a view.
A person’s use and enjoyment of land has been examined extensively at common law and forms a major element of the offence of private nuisance.
At common law, a neighbour can be held to unreasonably interfere with a person’s use and enjoyment of land if they create odours, sounds, pollution or hazards which extend beyond the boundaries of their own property. Other private nuisances include:
- activity or intrusion that causes a reasonable fear for an occupier’s safety;
- obstruction of rights of way;
- obstruction of water supply;
- interference with support to land or a wall; and
- blocking out a neighbour’s light, when there is an obligation to provide access to light.
Therefore, a claimant could launch an action in nuisance against a neighbour for a tree which creates a hazard to themselves, other persons on their land or their property.
Additionally, the common law right of abatement allows for a person to remove sections of a neighbour’s tree that overhangs their property to resolve a nuisance.
But what about removing a tree entirely?
The Queensland Civil and Administrative Tribunal (QCAT) can make orders requesting the removal of a tree pursuant to section 66 of the Act.
Under section 66(3) of the Act QCAT can order all or part of a tree to be removed if it rises at least 2.5 meters above the ground and severely obstructs a view from a dwelling on a neighbour’s land that existed when the neighbour took possession of the land. Therefore, the view must have existed when you purchased the property.
In McHugh v Withers & Anor  QCAT 346 Member Traves held that a 23m tree be removed from the respondent’s property at their own expense.
Member Traves held the tree was unsafe, had dropped branches and debris over the boundary line onto the applicant’s property, had undergone several pruning efforts and added no cultural, social, historical or scientific value to the location.
In Young v Salmon  QCAT 508 the applicants applied to remove trees that were blocking a view. The applicants submitted that palm trees adjoining their property negatively affected sea views they had enjoyed before the respondent purchased the neighbouring property. The applicants also argued four (4) trees had fallen onto their property during a cyclone, damaging their house.
Member Favell considered that the primary consideration in making an order to remove trees is the safety of any person, and that a living tree should only be removed if it is the last option available. He was not convinced that the applicants had a sea view when they purchased their property but nevertheless ordered the removal of 10 mature palms within one meter of the boundary line separating the applicants’ and respondents’ properties. In making his decision, Member Favell chad reference to a report written by a tree assessor which stated that the trees produced tripping hazards (palm fronds) and attracted excrement dropping fruit bats.
So, whilst legislation does allow for a tree to be removed if it obstructs a view, a claimant will be more successful if they can prove that the tree poses a danger to persons or property on their land.
If you are having a dispute with a neighbour regarding trees and require assistance, please contact the team at Cohen Legal. We are here to help.