Bowyer v Ortlipp

Case [2019] QCATA 111

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Bowyer & Anor v Ortlipp & Anor [2019] QCATA 111

PARTIES:

MATTHEW BOWYER and SARAH WHITTLE
(applicants)
V

MICHAEL ORTLIPP and BETH ELISE BURGESS

(respondents)

APPLICATION NO/S:

APL251-17

ORIGINATING APPLICATION NO/S:

NDR044-16

MATTER TYPE:

Appeals

DELIVERED ON:

29 July 2019

HEARING DATE:

29 June 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Olding

ORDERS:

1.   Leave to appeal refused.

2.   Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – whether evidence available at time of hearing - whether evidence would have an important impact on the result of the case – whether evidence credible

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – where error asserted in the exercise of discretion to make orders about bamboo – where error asserted in weight given to evidence – where error asserted in application of relevant legal test in finding severe obstruction of a view caused by bamboo

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – loss of view – whether severe obstruction of views caused by bamboo – whether error in assessing and valuing views at the time respondents took possession of land and at the time of the hearing – whether error in finding severe obstruction of a view caused by bamboo – whether severe obstruction of a view caused a substantial, ongoing and unreasonable interference with the use and enjoyment of land – whether error in making orders in relation to bamboo

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 42(1)(a), s 45, s 46, 48(1)(a), s 49(1)(a)(i), s 61, s 62(1), s 66, s 73
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147

Albrecht v Ainsworth & Ors [2015] QCA 220
Birnbaum v Akero [2014] QCATA 18

Challands & Anor v Jackson [2014] QCATA 330

Chambers v Jobling (1986) 7 NSWLR 1

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Dearman v Dearman (1908) 7 CLR 549
Ericson v Queensland Building Services Authority [2013] QCA 391
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

House v The King (1936) 55 CLR 499

Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
Marsh v Baxter (2015) 49 WAR 1
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203
Norbis v Norbis (1986) 161 CLR 513

Norbury v Hogan [2010] QCATA 27
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AGLC
Bowyer v Ortlipp [2019] QCATA 111
Case
[2019] QCATA 111
Decision Date

CaseChat Overview and Summary

Bowyer v Ortlipp was an appeal against a decision made by the Queensland Civil and Administrative Tribunal (QCAT) in relation to the planting of bamboo on a property boundary. The respondents, Ortlipp and another, sought an order that the applicants, Bowyer and another, remove certain bamboo plants from the boundary between their properties. The QCAT found that the bamboo plants caused a severe obstruction of the respondents’ views and ordered the applicants to prune the bamboo to a maximum height of three metres. The applicants appealed against the QCAT decision, asserting various errors in the tribunal's findings and orders. The legal issues before the court were whether the QCAT erred in finding that the bamboo plants caused a severe obstruction of the respondents’ views, whether the QCAT erred in finding that the obstruction of views constituted a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land, and whether the QCAT erred in making orders in relation to the bamboo plants.

The court held that the QCAT did not err in finding that the bamboo plants caused a severe obstruction of the respondents’ views. The court found that the QCAT had correctly assessed and valued the views and the impact of the obstruction of the views, and had correctly determined that the obstruction of views was severe. The court also found that the QCAT did not err in finding that the obstruction of views constituted a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land. The court held that the QCAT had correctly applied the relevant legal test in finding that the obstruction of views caused a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land. The court further held that the QCAT did not err in making orders in relation to the bamboo plants. The court found that the QCAT had correctly considered the matters for consideration under Chapter 3, Part 5, Division 4 of the Nature Conservation Act 1992 (Qld) and had made appropriate orders in relation to the bamboo plants.

The appeal was dismissed, and leave to appeal was refused. The court found that the QCAT's decision was not affected by any error of law, and that there was no basis for interfering with the QCAT's exercise of discretion in making orders in relation to the bamboo plants. The court held that the QCAT's findings and orders were supported by the evidence and were reasonable in the circumstances. The applicants were ordered to pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. Leave to appeal refused.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The learned member found:(a)At the date the respondents took possession of their property:(i) the faster growing species of bamboo would have reached a height of between five metres and six metres and would have been visible at the second level of the container house; and (ii) the visible immature bamboo tips were relatively sparse and did not cause a significant impedance to the views available from the second level of the respondents’ house;[31][31]Ibid, [57].(b)The number of bamboo culms and the foliage density seen through the windows on the second floor of the house had substantially increased since the respondents took possession;[32][32]Ibid. (c)The mature bamboo obstructed the northerly views available from the second level of the respondents’ house;[33][33]Ibid. (d)The value of the view from the respondents’ dwelling was not limited to the views or glimpses of the Brisbane River. Other elements, including the park and the trees, were important elements of the view;[34][34]Ibid, [62].(e)The northerly view from the second level of the dwelling, containing the kitchen, dining and living rooms, was the most attractive view;[35][35]Ibid. (f)The bamboo did not completely block the views from the second level of the dwelling, but the parts of the view that were available were so fragmented and devoid of context that the view as a whole was lost;[36][36]Ibid, [68].(g)The northerly view from the second level living area was severely obstructed by the bamboo and the view had been nearly blocked out;[37][37]Ibid, [69].(h)The lower height and density of the species planted at each end of the bamboo screen did not severely obstruct views from the western balcony and laundry on the second level;[38][38]Ibid, [74].(i)The respondents were not hypersensitive, or abnormally sensitive, to the harm or interference caused by the bamboo;[39][39]Ibid, [73].(j)The applicants had not taken steps to minimise the harm caused by the bamboo;[40][40]Ibid, [74].(k)The bamboo screen was planted to prevent the respondents’ house from overlooking the applicants’ house from the second and third levels;[41][41]Ibid, [75].(l)It was not possible from the second level of the respondents’ house looking north to determine where the house sat in its surroundings;[42](m)The interference caused by the bamboo was ongoing and would worsen until the next annual pruning of the bamboo;[43](n)The severe obstruction of the view caused by the bamboo was a substantial ongoing and unreasonable interference of the respondents’ land;[44](o)The significance of the adverse impact of the respondents’ house on the applicants’ privacy was lessened by the fact that the applicants did not reside, had never resided, and had no future intention of residing in the house on the property;[45](p)Any discomfort caused to the applicants by the overbearing nature of the respondents’ house was experienced by them on their infrequent visits to the backyard of the property, primarily to maintain the bamboo which they had planted;[46](q)There was no evidence from any resident of the applicants’ property, past or present, of any discomfort caused to them by the respondents’ house;[47](r)Any pruning of the bamboo to a height above three metres would result in a hedge screen which did not exist at the date the respondents took possession of their property;[48](s)If the bamboo was pruned every two years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the respondents’ house;[49](t)The effect of the planting of the bamboo was to create a hedge;[50](u)Selective pruning of the bamboo was not appropriate given the speed at which the bamboo would continue to shoot and grow.[51][42]Ibid, [76].[43]Ibid, [77].[44]Ibid, [78].[45]Ibid, [87].[46]Ibid, [88].[47]Ibid, [89].[48]Ibid, [108].[49]Ibid, [109].[50]Ibid, [113].[51]Ibid, [114].Application to adduce fresh evidence

Decision

Reasons for decision

Generally speaking the tribunal, in determining whether a tree is causing a severe obstruction of a view, will be required to:(a)make factual findings about the view – both at the time the neighbour took possession of the land and at the time of the hearing;(b)assess and value the view and the impact of the obstruction of the view;(c)determine whether any view obstruction is severe;(d)if a view obstruction is severe, determine whether the obstruction is a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;(e)make the appropriate orders. The decision The respondents’ home is a three story dwelling constructed of a number of shipping containers.[26] It is situated three metres from the boundary between the respondents’ property and the applicants’ property.[27] The respondents took possession of their property in September 2014.[28] At the end of June 2013, the applicants planted seven mature palms, and six clumps of bamboo, of three different species, adjacent to the common boundary.[29] The bamboo plants were approximately two metres tall when planted in June 2013 and at the time of the hearing were six to ten metres tall.[30] [26]Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [15] - [19].[27]Ibid. [28]Ibid, [6].[29]Ibid, [26].[30]Ibid, [28]. The learned member made a number of findings relating to whether the bamboo caused a severe obstruction of a view from the respondents’ property and whether that obstruction resulted in a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. The learned member went on to make orders in relation to the bamboo. The learned member found:(a)At the date the respondents took possession of their property:(i) the faster growing species of bamboo would have reached a height of between five metres and six metres and would have been visible at the second level of the container house; and (ii) the visible immature bamboo tips were relatively sparse and did not cause a significant impedance to the views available from the second level of the respondents’ house;[31][31]Ibid, [57].(b)The number of bamboo culms and the foliage density seen through the windows on the second floor of the house had substantially increased since the respondents took possession;[32][32]Ibid. (c)The mature bamboo obstructed the northerly views available from the second level of the respondents’ house;[33][33]Ibid. (d)The value of the view from the respondents’ dwelling was not limited to the views or glimpses of the Brisbane River. Other elements, including the park and the trees, were important elements of the view;[34][34]Ibid, [62].(e)The northerly view from the second level of the dwelling, containing the kitchen, dining and living rooms, was the most attractive view;[35][35]Ibid. (f)The bamboo did not completely block the views from the second level of the dwelling, but the parts of the view that were available were so fragmented and devoid of context that the view as a whole was lost;[36][36]Ibid, [68].(g)The northerly view from the second level living area was severely obstructed by the bamboo and the view had been nearly blocked out;[37][37]Ibid, [69].(h)The lower height and density of the species planted at each end of the bamboo screen did not severely obstruct views from the western balcony and laundry on the second level;[38][38]Ibid, [74].(i)The respondents were not hypersensitive, or abnormally sensitive, to the harm or interference caused by the bamboo;[39][39]Ibid, [73].(j)The applicants had not taken steps to minimise the harm caused by the bamboo;[40][40]Ibid, [74].(k)The bamboo screen was planted to prevent the respondents’ house from overlooking the applicants’ house from the second and third levels;[41][41]Ibid, [75].(l)It was not possible from the second level of the respondents’ house looking north to determine where the house sat in its surroundings;[42](m)The interference caused by the bamboo was ongoing and would worsen until the next annual pruning of the bamboo;[43](n)The severe obstruction of the view caused by the bamboo was a substantial ongoing and unreasonable interference of the respondents’ land;[44](o)The significance of the adverse impact of the respondents’ house on the applicants’ privacy was lessened by the fact that the applicants did not reside, had never resided, and had no future intention of residing in the house on the property;[45](p)Any discomfort caused to the applicants by the overbearing nature of the respondents’ house was experienced by them on their infrequent visits to the backyard of the property, primarily to maintain the bamboo which they had planted;[46](q)There was no evidence from any resident of the applicants’ property, past or present, of any discomfort caused to them by the respondents’ house;[47](r)Any pruning of the bamboo to a height above three metres would result in a hedge screen which did not exist at the date the respondents took possession of their property;[48](s)If the bamboo was pruned every two years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the respondents’ house;[49](t)The effect of the planting of the bamboo was to create a hedge;[50](u)Selective pruning of the bamboo was not appropriate given the speed at which the bamboo would continue to shoot and grow.[51][42]Ibid, [76].[43]Ibid, [77].[44]Ibid, [78].[45]Ibid, [87].[46]Ibid, [88].[47]Ibid, [89].[48]Ibid, [108].[49]Ibid, [109].[50]Ibid, [113].[51]Ibid, [114].Application to adduce fresh evidence

Ratio Decidendi

Legal Principle Established

The application to adduce fresh evidence is refused. Consideration The Application for leave to appeal or appeal raises questions of law, questions of fact and questions of mixed law and fact. The applicants identify three principal errors by the learned member:(a)Finding that the respondents’ views were affected by the bamboo plants to the extent found;(b)Failing to balance the respondents’ right to a view with the applicants’ right to privacy;(c)Failing to accept the weight of evidence in favour of the applicants. At the hearing of the appeal the applicants abandoned additional grounds of appeal asserting bias and a failure to be afforded procedural fairness. We propose to deal with the grounds of appeal by reference to the findings and decision, and the extensive submissions by the parties, in relation to:(a)The views that existed when the respondents took possession of the land;(b)The views that existed at the time of the hearing;(c)The value of the views and the reasonableness of protecting the views;(d)The extent of the obstruction of the views and whether the obstruction of views was severe;(e)Whether the obstruction constituted a significant and ongoing interference with the respondents’ use and enjoyment of the land;(f)The matters for consideration under Chapter 3, Part 5, Division 4 of the ND Act;(g)The orders made in relation to the trees.The findings about the views from the dwelling at the time the respondents took possession of the land It is appropriate to make some preliminary observations. The learned member identified the construction, layout and position of the respondents’ dwelling.[59] As the learned member observed, the first and second levels of the northern elevation of the dwelling are approximately 15 metres in length. The kitchen, dining and living areas (‘the living areas’) on the second level comprise approximately two thirds of the northern elevation. The living areas, which flow together in an ‘open plan’ design, are located along an east/west axis, facing north. Approximately one sixth of the total length of the northern elevation is a western balcony (at the western end, which we will refer to as the western balcony) and one sixth is a laundry (at the eastern end).[60] The view looking directly north from within the living areas on the second level is (aside from the bamboo) principally of the applicants’ dwelling. Beyond the applicants’ dwelling is the Brisbane River. Again, looking directly north, above the roof line of the applicants’ dwelling can be seen various trees.[61] It is apparent from the evidence before the learned member that the views enjoyed from the living areas varied according to the viewing position. There were, from the living areas, views to the west of the applicants’ dwelling, that is to say the views were in a northerly and north westerly direction from the living areas depending on the viewing location. Those views were of the Brisbane River, parkland and trees. Again, depending on the viewing locations, the views from the living areas might be described as oblique to a greater or lesser degree. [59]Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [15] - [19].[60]Exhibit 2.[61]Exhibits 4 and 5.