Johnson v Fraser
[2014] QCAT 614
•25 November 2014
| CITATION: | Johnson v Fraser [2014] QCAT 614 |
| PARTIES: | Roy Johnson (Applicant) |
| v | |
| Sherryn Fraser (Respondent) |
| APPLICATION NUMBER: | NDR215-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 30 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. 2. Roy Johnson is to pay to Sherryn Fraser the amount of $400 within 28 days. |
| CATCHWORDS: | NEIGHBOURHOOD DISPUTE – TREES – VIEW – where an application was made for an Order to remove trees interfering with a view – whether existing view at time of purchase was affected – whether interference with view was severe obstruction – where applicant was ordered to reimburse that part of the inspection fee paid by the tree-keeper Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 66 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 |
APPEARANCES:
| APPLICANT: | Roy Johnson in person (by telephone) |
| RESPONDENT: | Sherryn Fraser |
REASONS FOR DECISION
Mr Johnson owns a property at 37 Cliff Way, Mt Tamborine. It has a panoramic view of the whole of the Gold Coast extending from the Moreton Bay islands to the North, around past the Surfers Paradise skyline, to the Southern end of the Gold Coast. He is a retired man.
Ms Fraser owns an adjoining property at 45 Central Avenue, Tamborine Mountain. There are four trees growing near the boundary of her property which Mr Johnson wants to be removed.
Ms Fraser’s property is a 2.5 acre site that wraps around Mr Johnson’s property, in an extended “L” shape. Mr Johnson’s property is a residential housing block with a house on it. That part of Ms Fraser’s property which is overlooked by Mr Johnson’s property has no structures on it, and was formerly a farm paddock.
I conducted a view of the properties on the morning of 30 October 2014, and heard the matter that afternoon.
A Tree Assessment Report, dated 14 July 2014, was prepared by Mr Anthony Cockram. Mr Cockram is an AQF Level 5 Arborist with 24 years industry experience, including 18 years as an inspecting arborist for Local and State government.
The parties had been ordered to pay $400 each to the Tribunal towards the cost of the Report, by Directions made on 25 November 2013.
Mr Cockram identified the four trees as 2 x Eucalyptus Grandis (Flooded Gum) and 2 x Acacia Longifolia (Long-leaved Wattle). He described them all as being in good health, vigour and form with an approximate height range of 7m – 9m, and as being a native species contributing to the ecological, landscape and slope stability values of the Tamborine Mountain Escarpment Protection Precinct site which is intended to maintain the scenic amenity and landscape character of the area. The individual descriptions were as follows:[1]
Tree 1 – Eucalyptus Grandis
A juvenile specimen located 3.7m from centre of trunk to the boundary fence with an approximate height of 9m and a DBH of 200mm. it was in good health and form with no structural defects at the time of inspection.
Tree 2 – Eucalyptus Grandis
A juvenile specimen located 4m from centre of trunk to the boundary fence with an approximate height of 7m and a DBH of 140mm. it was in good health and form with no structural defects at the time of inspection. This tree does not currently overhang the boundary into the applicant’s property.
Tree 3 – Acacia Longifolia
Is a mature sized twin leader specimen located 3.5m from centre of trunk to the boundary fence with an approximate height of 6m and a combined DBH of 180mm. It was in good health and form with no structural defects at the time of inspection. This tree does not currently overhang the boundary into the applicant’s property.
Tree 4 – Acacia Longifolia
Is a mature sized specimen located 4.1m from centre of trunk to the boundary fence with an approximate height of 8m and a DBH of 210mm. It was in good health and form with no structural defects at the time of inspection. The tree does not currently overhang the boundary into the applicant’s property.
[1]Tree Assessor Report 14 July 2014 paragraph [2.1.1].
Mr Cockram assessed the four trees as obstructing approximately 5% of the views from Mr Johnson’s upper floor and 25% of the views on the lower floor.
Mr Johnson has effectively denuded his entire property. He removed two large mature sized trees from his property in February and March of this year, being 1 x Liquidamber and 1 x Eucalyptus Grandis.
Mr Johnson said that the tree cutter he engaged to remove the Liquidamber described it as ‘the largest Liquidamber tree he had ever seen on Tamborine Mountain’. The Liquidamber tree was described by Mr Johnson as a “huge tree’ and could have dated back to the 1950’s.
Mr Johnson described the gum tree which was removed as ‘very big’, and was 25 to 30 metres high.
Mr Johnson did not seek or obtain any permissions before removing these two very large trees. He said that he did not know he needed to get any permission. He said that the gum tree had been struck by lightning and was dead, but that the Liquidamber tree was healthy when it was cut down but was dangerous.
Mr Cockram assessed that the two large trees reportedly obstructed more than 50% of Mr Johnson’s view before he removed them.
Mr Johnson strongly wants the four trees on Ms Fraser’s property totally removed, but said that he would settle for removal of the gum trees only, as they would grow to be quite big. Ms Fraser does not want any of the four trees to be removed.
It is clear that Mr Johnson is seeking to remove all vegetation that in any way obstructs his view. He has exhibited no regard, or appreciation for, for the amenity or landscape character, or slope stabilisation, of these four trees, or of the two very large trees previously on his own property.
The suggestion arose that Mr Johnson is looking to sell his property at some stage, and that he is seeking to maximise his view, which he described as ‘the best on the mountain’ to increase the value of his property. Properties in the vicinity with views are obviously very valuable.
Mr Johnson was adamant that he removed the two large trees because they were giving him more problems than anything else, that ‘people don’t understand how quickly stuff grows on Mt Tamborine, and how big trees grow’, and the fact that his views have been improved is a consequence, not his reason to do so.
Ms Fraser said that she believes that Mr Johnson has cleared his property to improve his view, as he has cleared every large tree in his yard.
Ms Fraser said that there is an environmental corridor on her land. She said that the four trees are planted in a high-slip zone. She had not planted the trees and described them as natural regrowth.
Ms Fraser’s land is identified within the Beaudesert Shire Council’s Development Control Plan (DCP) No 1 – Tamborine Mountain as having a Land Use Character designation of Escarpment Area.[2] The Beaudesert Shire Planning Scheme 2007 details that[3] ‘development within this precinct is typified by low-impact uses which protect and maintain the nature conservation, scenic amenity and landscape character values associated with the Tamborine Mountain escarpment’.
[2]Letter Deputy Mayor to Ms Fraser 13 November 2006.
[3]Email Scenic Rim Regional Council to Ms Fraser 11 November 2013.
Ms Fraser’s land is constrained by the following Planning Scheme Overlays:
a) Nature Conservation – Vegetation Management Area.
b) Development Constraints – Landslide Investigation, Medium Landslide and High Landslide Hazard areas.
c) Catchment Management Waterways and Wetlands – Pollutant Load Risk High.
Ms Fraser recounts that her discussions with Council planning officers provided the following description of her land:[4]
The land is in a nature conservation area, which requires the retention of trees where possible, especially in slope issues. Native vegetation assists in stabilising slope areas and the trees on this property under discussion are located in the medium to high landslide hazard areas, where vegetation assists in stabilising soil.
[4]Letter Fraser to QCAT and Johnson 17 November 2013.
Ms Fraser was advised by the Scenic Rim Regional Council that the trees are protected:[5]
Vegetation upon your property is protected, unless exempt clearing applies such as within 3m of lot boundary, 5m of a shed, 25m of a house.
And therefore native trees, unless exempt, are protected, an Operational Works application would be required by the property owner to clear them.
[5]Email Scenic Rim Regional Council to Fraser 27 June 2014.
There is no suggestion that the four trees are in any way affecting Mr Johnson’s land other than by obstruction of a view.
A person has no right to a view in relation to obstruction by trees other than as specifically provided under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).
The Tribunal may make orders under the Act which it considers appropriate in relation to a tree affecting a neighbour’s land, to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[6] Land is considered to be affected if this is being caused now, or is likely to be caused within the next 12 months.[7]
[6]Act s 66(2)(b)(ii).
[7]Ibid s 46(a)(ii).
However, the Tribunal may only make such an order where the interference is an obstruction of a view, if the obstruction is severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.[8]
[8]Ibis s 66(3)(b)(ii).
Severe Obstruction
The term “severe obstruction” was considered in Laing & Anor v Kokkinos & Anor (No 2)[9] where Justice Alan Wilson said:
[36]The term ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’. During Parliamentary Debates, the then Attorney-General commented: ‘The severity threshold requires that the view must be nearly blocked out.’[10] Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.
[37]The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales.[11] In Haindl v Daisch[12] the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements.[13] The LEC decision gave the following examples:
[If the] view comprises predominantly an unrelieved outlook towards unattractive and blank-walled built form and there is a only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degrees generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view.[14]
[9][2013] QCATA 247.
[10]Queensland, Parliamentary Debates (Hansard), 2 August 2011, 2309 (Paul Lucas, Attorney-General).
[11]Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14E(2).
[12][2011] NSWLEC 1145.
[13]Ibid [64].
[14]Ibid.
Mr Johnson used a protractor to measure his overall view which he said was 110 degrees, and said that the four trees obstruct 29 to 30 degrees. He strongly disagrees with Mr Cockram’s assessment.
I do not accept the validity of Mr Johnson’s assessment, as it only refers to the arc that is affected, but does not assess the amount of interference within that arc.
I accept the assessment of Mr Cockram that the obstruction of the view from the living area of Mr Johnson’s dwelling, which is on the upper level, and is the principal viewing area, as 5% of the view. The obstruction from the ground level I accept as 25%.
The view that Mr Johnson currently has from his upper floor living area is expansive and entirely unimpeded except for these four trees that intrude into the lower sector of the view, showing above the horizon. They are grouped together in one area, which is to the left of the view to the Surfers Paradise skyline, from the living room.
Many people actually prefer a view that has some contrast and texture in it, such as is provided by the natural shapes of trees.
The situation in this matter is a parallel to that hypothesised in Haindl v Daisch as to a coastline view, and whilst there is some interruption to the view, it is at most a modestly significant interruption, which it was said might not constitute a severe obstruction.
Having regard to the assessment of Mr Cockram, and to the extent and nature of the obstruction by the four trees, I do not consider that these four trees now, or within the next twelve months, can be reasonably said to constitute a “severe obstruction” of Mr Johnson’s view.
Pre-existing view
The two trees on Mr Johnson’s land which he cut down entirely, were said to obstruct 50% of the view when they were cut down. There is no evidence of how big those trees were when Mr Johnson bought his property in 2001, but he said that they had ‘not grown much’ from that time. The result is that at the time that Mr Johnson bought his property, that about 50% of his view was already obstructed. These four trees are within the general vista where the previous two large trees were.
The four trees were not in existence when Mr Johnson bought his property in 2001. He says that they were growing in a sight gap between the two large trees, that he had a ‘pretty open view’ through the gap before the four trees grew, and that the gap has been significantly affected.
At the time that Mr Johnson took possession of his property, 50% of his view was already obstructed. These four trees have not increased the percentage, or affected the general vista, of his view.
A view must be assessed as a whole. It cannot be broken down into separate views. Separating out the gap between the two large trees from the overall view is not a reasonable assessment of “the view”. In Haindl v Daisch, the LEC described a “view” as:[15]
.. the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of obstruction of the view from a particular viewing location on some incremental slice by slice basis
and further that a view is:[16]
a single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis
[15][2011] NSW LEC 1145 at [26].
[16]Ibid [28].
I am therefore not satisfied that the four trees now obstruct a view, which as a whole, did exist when Mr Johnson took possession of his land. Accordingly, an order cannot be made under the Act in any event.
Other Matters to consider
Even if it was found that a pre-existing view was being severely obstructed, there are several other factors which the Tribunal would have to consider under the Act before ordering the removal of the trees, and which have not been satisfied.
Section 72 of the Act requires that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved. For example, an examination would need to be undertaken as to pruning and trimming options that would reduce the effect of the trees to an acceptable state before ordering their removal. No such options have been proposed by Mr Johnson.
Section 73(1)(b) of the Act requires that the Tribunal must consider whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained. The Scenic Rim Regional Council has stated that the trees are protected, and that an Operational Works Application would be required to clear them. No such application has been made or considered
Section 73(1)(h) requires that the Tribunal must consider any impact the tree has on soil stability, the water table or other natural features of the land or locality. The Council has advised that the trees are in a nature conservation area where vegetation assists in stabilising soil. This impact has not been addressed by Mr Johnson.
Conclusion and Costs
I have found that the four trees do not constitute a “severe obstruction” of the view; that there was not a pre-existing view; and that several other considerations under the Act have not been satisfied. The Application therefore must fail, and I will order that it be dismissed.
Ms Fraser has sought costs by way of reimbursement of the $400 assessment fee which she has paid.
Mr Johnson opposes reimbursing Ms Fraser. He said that an application was the only resort left to him after he had obtained legal advice in 2010 that he had no recourse to legal action, but he then read about the Tribunal’s tree jurisdiction in the newspaper. He asked if Ms Fraser thought he was going to ‘cop it sweet’ with her ‘growing trees on some of the best views on the mountain’.
The Tribunal has a discretion to award costs where the “interests of justice” require.[17] Mr Johnson has wholly failed in his application. I have found that his application is bad in both law and fact. Ms Fraser should not have to bear costs in resisting an application that is wholly flawed.
[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1).
I therefore consider that it is appropriate that Mr Johnson should reimburse Ms Fraser the $400 which she has paid, and I will order accordingly.
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