Obstruction of a View or Sunlight
Obstruction of a View or Sunlight
What are your legal rights or options if there is an obstruction, caused by your neighbour’s tree or trees, to a view or sunlight that you previously enjoyed from or at your house?
In Australia, you do not have an automatic and general legal right to protect a view (whether visible from your land or a dwelling on your land) from being obstructed by a structure or object located either on the adjacent land or anywhere in the distance. There may be ways to potentially remove the obstruction by other legal means, if, for example, the obstruction has failed to obtain (or to comply with) Council or building approval, or breaches an existing easement for retention of light or air, or commits a private nuisance or commits some other legal wrong, which may necessitate its removal.
However, in Queensland, the legislature has provided some limited assistance to landowners by introducing additional legal rights in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in respect of an obstruction to a view or sunlight caused by a neighbouring tree. Provided you can satisfy some very strict elements of the action (as discussed further in the article below), the Queensland Civil and Administrative Tribunal (“QCAT“) has exclusive jurisdiction to make various orders about a tree, including ordering its removal or that it be cut or trimmed to reduce its height, width or shape.
An obstruction to a view or sunlight may not only impact the owner’s continued use and enjoyment of the land, but it may cause a significant loss to the market value of the property, and we find that this is often one of the key drivers in motivating a landowner to explore all legal avenues to protect a view.
Does QCAT have powers to make an Order about a tree in such circumstances?
QCAT has the power to make orders it considers appropriate in relation to a tree affecting the neighbour’s land if, in making the order, it will:
- Scenario 1: prevent serious injury to any person; or
- Scenario 2: remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land; or
- Scenario 3: remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
However, an interference that is an obstruction of sunlight or a view will fall under Scenario 3 only if:
- the tree rises at least 2.5m above the ground; and
- the obstruction is:
- severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
- severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
What Orders is QCAT empowered to make?
QCAT may, for example, but without limitation, make any of the following Orders:
- require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis
- some examples:
- an order that requires the removal of the tree within 28 days;
- an order that requires particular maintenance work on the tree during a particular season every year;
- an order that requires particular work to maintain the tree at a particular height, width or shape;
- some examples:
- require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
- require a person to apply for a consent or other authorisation from a Government Authority in relation to the tree;
- authorise a person to enter the tree-keeper’s or neighbour’s land to carry out an order about a tree, including entering land to obtain a quotation for carrying out an order about a tree;
- require the tree-keeper or neighbour to pay the costs associated with carrying out an order about a tree;
- require the tree-keeper or neighbour to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land; and/or
- require a report by an appropriately qualified arborist.
Contact Us
If you need legal advice or assistance with obstruction of a view or sunlight disputes, please contact ADVIILAW today to speak to one of our experienced commercial litigation lawyers. Contact us on 07 3088 7937 or email us at [email protected].
Disclaimer
This commentary is of a general nature only, containing some general information for the reader.
It is not intended to be legal advice, nor can it be relied upon as legal advice, as each case will depend upon its own specific facts, matters and circumstances.
To this end, please kindly read our Website Terms including the disclaimer contained therein carefully. Laws, rules and principles may be subject to sudden and unexpected changes and you should always consult a lawyer about your specific circumstances before committing to a course of action.
