No river view for me!

This article, written by our Queensland Partner Michael Kleinschmidt, first appeared in the August 2023 edition of the QLD LookUpStrata magazine.

Question

Question: Most unit’s in my block have fabulous river views. My view is blocked due to a few large shrubs. The committee will not trim the shrubs. What can I do?

I reside in a block of units directly across from a river. The unit block is ironically named ‘Riverview’. I reside on the raised, end ground floor apartment in a block with seven units on the same level. All other units have shrubs and plants trimmed well below their balcony rails. They have fabulous river views. However, I have three large shrubs in front of my unit that are approximately 30cm to 60cm above my balcony rail and impede my view of the river.

I have requested these shrubs are trimmed below my railing. However, the committee said the shrubs looked nice from the street and refused to trim them. This is causing me stress. How do I get the shrubs trimmed?

Answer

Answer:

Follow these eight steps.

In the words of the immortal Kamahl, ‘Why are people so unkind?’. I suspect Kamahl was making a direct reference to your committee.

If I was you, this is what I would do assuming those plants are on the common property:

1. Search the Council records, get the development approval and check for any landscaping plan.
2. Check the local laws in the Shire and see if there is anything relevant.
3. Check the by-laws to see if they have anything relevant.
4. Go back over all your old photos, and find any where the bushes were trimmed to the lower level, were not there, or were another species that were not causing a problem (i.e. evidence that in times past, view interruption was not an issue).
5. Search the body corporate records for the gardener’s contract and any communications dealing with the issue.
6. Depending on the results of those investigations, lodge an owner’s motion to be voted on by the committee to have the bushes trimmed and to keep them trimmed.
7. If the committee votes’ no’, and you have evidence that the bushes were, in fact, not an issue in the past (for example, they were trimmed lower, or a different species etc.), and you think you can prove that your use and enjoyment of your land is subject to ‘substantial, ongoing and unreasonable interference’ by virtue of the issue, then lodge a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, against the body corporate as the ‘tree keeper’.
8. In the alternate, set up a conciliation application against the body corporate for making an unreasonable, and thus unlawful, decision to refuse the trimming. Now, anyone who gets to steps 7 or 8 should get a lawyer on board before they start the proceeding!