[1] The Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (Trees Act) provides rules about each neighbour's responsibility for trees. Joanne and Paul Jeckeln, the applicants, are the owners of the land affected by the trees (neighbours). Warwick and Melinda Poulton, the respondents, are the owners of the land on which the trees are situated (tree-keepers).
[2] The neighbours seek orders in relation to two trees which they allege severely obstruct their view.
[3] Pursuant to section 66(3)(b)(ii) of the Trees Act this tribunal may make orders it considers appropriate in relation to a tree affecting the neighbour's land, to prevent or remedy substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land, if the severe obstruction of a view from a dwelling on the neighbour's land existed when the neighbour took possession of the land.
[4] The neighbours argue that they took possession of the land on 23 May 2023. The tree-keepers argue that Paul Jeckeln has been in possession of the land since 1 November 1999 and that Joanne Jeckeln has had an equitable interest in the land since that date.
[3]
[5] The preliminary issue for determination is:
[4]
When did the applicants, Joanne and/or Paul Jeckeln, take possession of the land.[3]
[5]
[6] The Trees Act relevantly provides that a neighbour is a registered owner of the lot affected by the tree[4] and an occupier of the land.[5]
[7] The Trees Act does not define possession. However, the appeal tribunal considered the meaning of section 66(3)(b)(ii) of the Trees Act in Neverfail Pty Ltd ATF The Harris Siksna Family Trust v Radford[6] (Neverfail). Senior Member Brown reasoned:
[6]
[41] Section 66(3)(b)(ii) requires consideration of when a neighbour takes possession of land. "Possession" is not defined in the [Trees Act] and therefore has its ordinary common law meaning in the context in which the word appears and the broader objects of the Act. A neighbour may be a registered owner of land affected by a tree or an occupier of the land. A neighbour who is an occupier may not bring an application for a tree dispute unless the registered owner of the land has refused to make the application. Generally speaking, a neighbour who is a registered owner of land takes possession when clear title passes to them, although ownership of land may be divorced from possession of land in appropriate cases. An occupier, e.g. a tenant, has possessory and proprietary rights when the occupier takes possession of land under a lease or some other type of agreement entitling the occupier to exclusive possession.
[42] ... It is possession of the land, not the dwelling, with which s 66(3)(b)(ii) is concerned. In this context and for the purposes of the section possession of land occurs when clear title first passes to the neighbour or in the case of an occupier when the occupier first takes exclusive possession. (footnotes omitted)
[7]
[8] There are competing lines of authority as to whether or not a tribunal member at first instance is bound to follow a decision of the appeal tribunal. I prefer the approach taken in Clark v Queensland Building and Construction Commission.[7] I consider myself bound to follow decisions of the appeal tribunal that are applicable to the facts of the case, unless there is a contrary decision of the High Court or the Queensland Court of Appeal, or if the appeal tribunal has elsewhere expressed a contrary principle.
[8]
[9] Paul Jeckeln and Joanne Jeckeln were married on 12 February 1983.
[10] On 1 November 1999 Paul Jeckeln became the registered owner of lot 55 on Crown Plan P9319 (the property).
[11] Between 28 July 2020 and 15 October 2021 Paul Jeckeln constructed a new house on the property.
[12] On 23 May 2023 ownership of the property was transferred to Paul Jeckeln and Joanne Jeckeln as joint tenants.
[9]
[13] The tree-keepers argue that their neighbours first took joint possession of the property on 1 November 1999, irrespective of the fact that the property was registered in the name of Paul Jeckeln. They argue that since 1 November 1999 Joanne Jeckeln has been in joint possession of, and had an equitable interest in, the property. They argue that they should not be disadvantaged by how their neighbours chose to structure their property ownership. They argue, based on a post on social media by Mrs Jeckeln, that Joanne Jeckeln had an equitable interest in the property. They argue that a court would enforce a constructive trust in favour of Mrs Jeckeln.
[14] Referring to Neverfail, they argue that this is an appropriate case to divorce ownership of land from possession of land.
[15] The neighbours argue that the mere fact that they were married when Mr Jeckeln acquired the property in 1999, and while he was the owner as sole tenant, did not automatically confer any interest (legal or equitable) in the property to Mrs Jeckeln. They argue that 'possession' must be interpreted having regard to the surrounding words of section 66(3)(b)(ii) in order to achieve the purpose of the Trees Act. The purpose of the Act being to allow a neighbour (registered owner or occupier) to obtain a remedy.
[10]
[16] One of the objects of the Trees Act is to provide rules about each neighbour's responsibility for trees so that neighbours are generally able to resolve issues about trees without a dispute arising.[8] The rules are set out in the Trees Act. When interpreting the Trees Act it seems unlikely that the Legislature intended neighbours to grapple with complex equitable principles, taxation law or family law. The jurisdiction of this tribunal is limited to that conferred on it by the Queensland Civil and Administrative Tribunal Act2009 (Qld) and enabling legislation. It does not have jurisdiction to declare the existence of a constructive trust.
[17] In any case, the preliminary issue can be resolved without recourse to matters of equity. The proper approach, as explained by Senior Member Brown, is to give the word 'possession' its ordinary common law meaning in the context in which the word appears and the broader objects of the Act. I respectfully adopt the decision of the appeal tribunal that generally speaking, a neighbour who is a registered owner of land takes possession when clear title passes to them. Title passed to Paul Jeckeln and Joanne Jeckeln jointly on 23 May 2023.
[18] I reject the tree-keepers argument that this is an appropriate case to divorce ownership of land from possession of land. This is not a case in which Joanne Jeckeln might be regarded as an occupier of the land before 23 May 2023. She was not a tenant and there was no agreement or arrangement entitling her to occupy the land, much less to enjoy exclusive possession of the land. She had no possessory or proprietary rights until she became a joint tenant on 23 May 2023.
[19] For completeness, I note that the tree-keepers' argument that they should not be disadvantaged by how their neighbours chose to structure their property ownership, is not relevant to determining the dispute about the preliminary issue, or indeed the underlying dispute about the trees. They are in a position no different from that they would have been if Mr Jeckeln had sold the property to a stranger on 23 May 2023. That stranger could have made an application under the Trees Act, just as Paul Jeckeln and Joanne Jeckeln have done.
[20] The answer to the preliminary question is that Paul Jeckeln and Joanne Jeckeln as joint tenants took possession of the land on 23 May 2023.