Awnings block the views of North Queensland Property

Awnings block the views of North Queensland Property

What Constitutes Private Nuisance – obstructing a view ?

A recent case, Miles v Gough, was heard in the Queensland Court of Appeal for an appeal of a private nuisance decision made by an adjudicator of QCAT. The proposed appeal has clarified the test applied in determining whether obstruction of views constitutes an unreasonable interference with the use and enjoyment of land contrary to section 167(b) of the Body Corporate and Community Management Act 1997.

Initial Claim

The applicants were the owners of a penthouse apartment located one floor above the first and second respondents. The respondents erected awnings around his North Queensland property to insulate the outdoor living area.

The applicants brought forth a claim in QCAT for unreasonable interference with their penthouse property’s water views ultimately interfering upon their use and enjoyment of their property.

Section 167 of the Body Corporate and Community Management Act 1997 stipulates that an occupier of a lot in a community titles scheme must not use the lot in a way that unreasonably interferes with another lot in the scheme.

The Body Corporate adjudicator of QCAT ultimately found that the awnings were merely a ‘minor interference’ and did not amount to a ‘substantial enough’ interference to ‘offend ordinary notions of reasonable standards’. He further expressed the view that is reasonable for a property owner in North Queensland to conceal their outdoor area from the elements; ultimately constituting that the awnings served a utility for the respondent’s property.

 

The applicants appealed the decision on the basis that QCAT combined the tests for nuisance and unreasonable interference, and failed to take into consideration the reasonableness of the awnings. The applicant’s suggested QCAT made a purely quantitative assessment of the awnings and failed to consider the qualitative impact they had on the applicant’s water views.

Decision on Appeal

The Queensland Court of Appeal applied a four-step approach taking in a 2004 case discussing what amounts to unreasonable interference with the use or enjoyment of a lot.

The four-step test applied in Tenacity Consulting v Warringah Council is as follows;

  1. Identify and value the types of views that are affected
  2. Identify from what part of the Lot the views are obtained
  3. Assess the extent of the impact of the interference as to the views
  4. Assess the reasonableness of the proposal that is causing the impact

The applicants argued that QCAT failed to take in to account the reasonableness of the awnings.

The applicant’s further argued that QCAT erred in the application of whether the interference was ‘substantial’ and contended that the adjudicator had only undertaken a quantitative assessment of the awnings rather than a qualitative one.

Although the applicants argued that it was an error of law to not determine the diminution in value of the property or for the adjudicator to accept either party’s valuations, the court held that no error had been made.

The Court agreed with the QCAT adjudicator and found that the water front views were unaffected.

Ultimately the applicants were unsuccessful, and were ordered to pay costs.

How Does this Affect You?

If you have found yourself in a similar position or require assistance with a nuisance matter, feel free to contact our Litigation Team by email to litigation@hatzis.com.au or call on (07) 3345 4388.

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