Is prescription back in Queensland?

Kate Galloway: James Cook University

In 2011 Queensland updated its legislation concerning dividing fences disputes, introducing the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘Act’). The Act significantly overhauls the earlier Dividing Fences Act particularly through the introduction of a jurisdiction concerning trees.

Looking through the Act recently, I was noticed that the Queensland Civil and Administrative Tribunal (‘QCAT’) had jurisdiction not only over trees that dropped branches onto neighbours’ land or those which posed a danger to the neighbours. Under s66, QCAT may also make an order relating to ‘interference that is an obstruction of sunlight or a view’. This raises the question of the basis on which such an order may be made. In particular I am interested in whether this creates, by implication, a property right.

Is the right a property right?

The order in question relates to trees growing on the land of another (subject to certain exceptions). At common law, trees are fructus naturales and as such form part of the land and therefore the title of the land owner. To request their removal (or alteration by trimming) could be justified under property law only if they interfere with a property right vested in the complainant (the ‘dominant tenement’). That property right would have to vest over either the trees themselves (unlikely) or the tree-owner’s land. (I will call this land the servient tenement.) Traditionally, such a right would be in the form of an easement.

An easement has four essential elements:

  • there must be a dominant and a servient tenement
  • an easement must accommodate the dominant tenement
  • dominant and servient owners must be different persons and
  • the easement must be capable of forming the subject matter of a grant

As it is possible to create an easement for sunlight and a view (it is capable of forming the subject matter of a grant) all of these elements would be satisfied. This leaves the question of how such a right could come into existence when it has not been agreed upon by the parties and does not form part of the title. In the absence of agreement, it is possible for a property right to be derived under a statute or through common law.

In some jurisdictions, there may well be a common law right to a view or a right to light. In Queensland however, section 178 of the Property Law Act 1974 (‘PLA’) removes any presumption of a right of user to access light or air. This leaves the possibility of a right to a view by long user. This is unlikely however, because  the Act stipulates that the view to be protected is that in existence at the date the land was purchased. The common law requires an easement be used for 20 years before a right will accrue ie the complainant would need to show the view had been enjoyed for 20 years. The Act obviously does not operate in this way.

Under s180 of the PLA the Court may award a right of user upon application, but only for the purpose of ‘way over, access or entry’, or for utilities. There appears to be no way by which a landowner can derive an easement by prescription – at least not one for light or a view.

The basis of the QCAT order certainly resembles a property right – derived only by implication under the Act but in a different way from the old common law easement by prescription.

Does an order burden the title?

If QCAT makes an order that is not carried out before land is sold, the question remains as to whether the order can be enforced by a new owner of the dominant tenement, and against a new owner of the servient tenement.

The effectively universal use of Torrens title in Australia is a reflection of the need for a transparent title. The proliferation of statutes governing land use and management has generated a host of obligations affecting land that do not appear on the title. The question is now being asked by some, whether the register itself is under attack from underlying interests and obligations.

In this case, such an order would not appear on the title and may not be discoverable by a purchaser of either parcel of land. If the right is a property right, the order may well subsist to burden or benefit subsequent owners. If not, the order may simply expire.

In the interests of transparency of title, the nature of the right to a view and sunlight needs to be clarified, as does the standing of any order.







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