Kokkinos v Laing
[2012] QCAT 580
•20 November 2012
| CITATION: | Kokkinos and Anor v Laing and Anor [2012] QCAT 580 |
| PARTIES: | Helen Kokkinos George Kokkinos |
| v | |
| Rosina Laing Vincent Laing |
| APPLICATION NUMBER: | NDR026-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 13 November 2012 |
| HEARD AT: | Maroochydore |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 20 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1.) Rosina Laing and Vincent Laing the registered owners of the lot at 52 Southern Cross Parade, Sunrise Beach, Queensland (the tree-keepers) arrange for the following works to be carried out on the trees the subject of the application (the works): a.) All 6 trees be reduced in height. b.) Starting at the Lilly Pilly closest to the tree-keepers’ house, reduce that tree to 3 metres in height from ground level at the base of that tree. c.) From that first tree’s height of 3 metres, reduce the height of the remainder of the trees by following a horizontal line across to the last tree. d.) The work on the Lilly Pillys can be carried out by a person chosen by the tree-keepers. The tree-keepers shall obtain any necessary local council permit required prior to the work. e.) The work on the Avocado tree is to be carried out by an Australian Qualifications Framework level 3 qualified and appropriately insured Arborist. f.) If the Arborist considers the Avocado tree will not survive reduction to the required height, the tree is to be removed and replaced by a Lilly Pilly and the costs for that work only be shared equally between the parties. g.) The work on the Lilly Pillys is to be carried out in late winter 2013 and annually thereafter during late winter. h.) The work on the Avocado tree, should it remain, be carried out by 30 May 2013 and annually thereafter at any time other than late summer or early spring. |
| CATCHWORDS: | TREE DISPUTE – where trees obstruct view that previously existed – where trees provide privacy – whether trees are causing substantial, ongoing and unreasonable interference – whether obstruction of view severe Neighbourhood Disputes Resolution Act 2011, ss 46 (a)(ii)(C), 65, 66(2)(b)(ii), 66(3)(a)(b)(ii), 73, 75 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
Background
Helen and George Kokkinos previously owned a unit at 49 Southern Cross Parade, Sunrise Beach. In July 2005 the house at 54 Southern Cross Parade was put on the market and, given its ocean view which their unit didn’t have, they purchased it. They moved into the property in 2006.
Rosina and Vincent Laing are the registered owners of 52 Southern Cross Parade. They have lived there since 1996.
Around 2003 Mr and Mrs Laing became aware that their then neighbour was intending to put his house at 54 Southern Cross Parade on the market. Prior to sale the deck was to be extended. In light of this, and with concerns that a high set extended deck located so close to the boundary fence line would intrude on the privacy of their backyard and pool area, they planted five Lilly Pilly plants along the western fence line. An avocado tree that had grown from a seed was already insitu along the same fence line.
Mr and Mrs Kokkinos claim when they purchased the property the avocado tree was the only tree they could observe growing along the fence line. Mr Kokkinos estimates that it was around one metre higher than the 1.5 metre fence and that it did not obstruct the view. Mr Kokkinos states he could not see the Lilly Pillys at time of purchase and believes they were planted around 2007 following an earlier dispute he had with Mr and Mrs Laing about the avocado tree.
With the passage of time the five Lilly Pillys and the avocado tree have grown and Mr and Mrs Kokkinos claim that the trees now severely obstruct the ocean view from their deck and kitchen window.
Decision
The main issue for the Tribunal to decide in the circumstances of this matter is whether the Kokkinos’ land is affected by the trees, in that the trees are causing, or likely to cause within the next twelve months, substantial, ongoing and unreasonable interference with Mr and Mrs Kokkinos’ use and enjoyment of their land[1].
[1] Neighbourhood Disputes Resolution Act 2011, section 46(a)(ii)(C).
If the Tribunal is satisfied that the trees are affecting the land in that manner the Tribunal may makes orders it considers appropriate to remedy, restrain or prevent that interference.[2] However, if the interference relates to a view the Tribunal may only make an order if the obstruction to the view is a severe obstruction and that the view existed when Mr Kokkinos took possession of the land.[3]
[2] Ibid, section 66(2).
[3] Ibid, section 66(3)(b)(ii).
In deciding an application for an order the Tribunal must consider particular matters including the location of the tree in relation to the boundary and any contribution the trees make to the amenity of the land on which it is situated, including its contribution relating to privacy.[4]
[4] Ibid, section 73(1).
Tree-assessor Report
In accordance with the Tribunal’s Practice Direction No. 5 of 2011, Benjamin Inman, Tree Assessor for the Tribunal attended the properties on 19 February 2012 and provided a Report.
Mr Inman noted in his Report that the trees in question were on the Western boundary to the rear of the Laings' property. He described five semi-mature Syzygium australe (Brush Cherry or Lilly Pilly) measuring approximately 4 metres in height and 2 metres in width and one Persea Americana (Avocado) approximately 5 metres in height and 4 metres in width. Apart from tip die-back in the Avocado tree he assessed the trees to be of good structure, health and vigour.
Mr Inman notes the Lilly Pilly trees are protected under Interim Local Law No 8 (Protection of Vegetation) 2011, Sunshine Coast Regional Council, but only as they are native tree species as they are not part of any revegetation of a waterway or foreshore. The Avocado tree is not a native species and is not protected.
Mr Inman repeats the Kokkinos’ claim that they had unobstructed views toward the north-easterly direction of the ocean from their kitchen dining area and on the deck at the time they purchased the property.
Mr Inman's Report states the Respondents trees have grown to obstruct approximately 50% of the applicants’ view of the ocean. Due to the large nature of the applicants’ deck they do have multiple viewpoints available to them.
Mr Inman notes the trees provide privacy screening to the pool area and backyard and rear bedroom of the Laings' property.
Mr Inman notes the Kokkinos advised him they would like the trees reduced to around 2.5 metres. Mr Inman states this would give the view back to the Applicants but leave no screen for the tree-keepers backyard and pool.
Mr Inman states the Lilly Pillys would survive this level of pruning but that the Avocado tree would not. Furthermore Mr Inman states this level of pruning would result in more than 20% loss of the live canopy volume of the tree within a 12-month period and thus a permit would be required from the Council.
Mr Inman therefore recommends that all the trees be pruned slightly, to 3.8 metres, measured from the base of the tree closest to the Laings' house, and taking the height of that tree along the horizontal line of the remainder trees.
Mr Inman states the pruning can be undertaken by the tree-keepers however the Avocado tree will require a AQF level 3 Arborist to complete the work. Once the height is achieved it could be maintained yearly or as required. Mr Inman recommends pruning for the Lilly Pillys take place late winter, and the Avocado tree any time other than late summer or early spring.
Kokkinos expert report
Mr Kokkinos obtained his own expert report in July 2012 and at hearing sought to tender that report as evidence. The expert Mr Mulholland was in attendance to give evidence if required.
The Laings objected to the report being tendered and noted its admissibility would not be in accordance with the Practice Direction.
During the hearing the Tribunal decided that it would not give approval for the report to be tendered as evidence given an Experts Conclave, as foreshadowed by the Practice Direction, had not taken place prior to the hearing and as the Tribunal’s tree-assessor was not in attendance to answer any questions from the Tribunal. Furthermore, the Tribunal was satisfied that allowing the report into evidence would be contrary to the Tribunal’s objectives of being fair, quick and efficient.
Tribunal viewing of the properties
The Tribunal Member viewed the properties on the morning of the hearing. Both parties, or a representative, attended each property with the Member.
At hearing both parties relied on their relevant application or response and statements as evidence and in essence reiterated their claims.
The Tribunal is satisfied one of the reasons Mr Kokkinos purchased the property was because of the ocean view, as he had previously owned a property in the same street that did not offer such a view.
Although there is disagreement between the parties about when the five Lilly Pillys were planted it is not disputed that they had not reached a height beyond the height of the boundary fence by the time Mr and Mrs Kokkinos bought the house.
At hearing Mr Laing tendered a hand drawn diagram of the approximate height of the fence, deck and position of the properties to each other.[5] Although not verified as accurate the Tribunal is satisfied, having viewed the properties, that the diagram is a reasonable representation of approximate heights and relative positions.
[5] Exhibit 2.
The Tribunal is satisfied therefore that Mr and Mrs Kokkinos had a north- easterly view across to the ocean from the deck at the time they took possession of the property.
The Kokkinos’ house is built and orientated to the north-east. The deck is mostly of a triangular shape with a large northern and eastern railing and small western railing. The deck directly joins the kitchen, a dining area with sliding doors and a sitting room.
The eastern side of the deck runs parallel and in close proximity (approximately 3 metres) to the boundary fence where the subject trees are situated. The Kokkinos have an outdoor dining setting running lengthways to the eastern railing of the deck.
In Mr Inman’s report of February 2012 he opined that 50% of the view was obstructed by the trees.
By the time the Tribunal viewed the properties in November 2012 the Tribunal observed from the Kokkinos’ property dense foliage from the trees well above the top of the deck railing on the eastern side of the deck. When seated at the outdoor table the entire ocean view was obscured. When standing near both ends of the eastern railing the ocean view could be partly seen. Another rooftop and Palm trees located in the eastern side of the Laings' property and on the western side of the next property contributed to the partial obstruction. Standing in the kitchen the view was mostly obscured.
When standing at the northern railing there was a wide ocean vista, partially obscured by distant houses and trees.
From the Laings' property, looking from the closer end of the pool, the deck was fully obscured and partially obscured looking from the other end. The rear bedroom overlooks the pool. The deck could be partially seen with curtains drawn back fully.
The Tribunal needs to be satisfied that the trees have caused substantial, ongoing and unreasonable interference with Mr and Mrs Kokkinos' use and enjoyment of their land, and as it relates to a view, be satisfied that the view is severely obstructed before it makes any order.
It is clear Mr and Mrs Kokkinos bought the property in light of the ocean views. As with many residents of the Sunshine Coast the Kokkinos and their family enjoy the outside living experience. Mr Kokkinos states the view was always a focal point of family gatherings. Mrs Laing also states Mr Kokkinos is out sitting on the deck from 6.00 am.
The Laings state the Kokkinos are seeking to improve their view rather than restore it and opine that the view is not totally obstructed and as the deck is large there are other vantage points to the distant ocean view.
Whilst the Tribunal does not disagree with some of these observations the Tribunal is satisfied, as described by Mr Inman and observed by the Tribunal itself, around 50% of the view is obstructed and that it is a significant obstruction.
The Tribunal is also satisfied given this obstruction is in the area of the deck that offers the more expansive and direct view of the ocean it is not surprising or unreasonable to expect that that is where Mr and Mrs Kokkinos choose to locate the outdoor dining setting to enjoy that view. Furthermore the outdoor setting is conveniently located to the kitchen to service that area. A dining area located close to a kitchen is an amenity many Australians appreciate and enjoy so that the hosts are never too far away in sight or talking distance from their guests. This is where most entertaining takes place and it is from this perspective, not standing against a rail, that provides the most use and enjoyment of the land for Mr and Mrs Kokkinos and generally most people who own similar styled property. Given these additional circumstances to an already 50% obscured view the Tribunal is satisfied that the view is severely obstructed.
What is an appropriate Order?
The Laings' main concern is that the trees provide privacy to their backyard and pool and rear bedroom windows. It is clear the trees’ dense foliage provide privacy particularly to the pool area. The trees provide some privacy to the rear bedroom but there is a gap at the end of the eastern railing closest to the house and none of the subject trees cover that area. The Laings have recently planted three more Lilly Pillys in that space.
The house at 54 Southern Cross Parade already had a deck prior to being put on the market. There is no evidence before the Tribunal as to the actual size or shape of the deck at that time. However, it was apparently extended before Mr and Mrs Kokkinos purchased the house in 2005. The Laings claim the deck was expanded whilst they were overseas. There is no evidence the Laings made any representation to the owner or Council at the time about any concerns. However, they claim recent communications with the relevant Council indicate there was no record of approval for the deck extension.
Mr Inman’s report recommends to improve the view and ensure adequate privacy screen the trees be pruned to 3.8 metres as the proposed reduction to 2.5 metres by Mr and Mrs Kokkinos would require a permit from the Council in relation to the Lilly Pillys as he opined that would reduce the canopy by more than 20% within 12 months, and the avocado tree would not tolerate this level of pruning and would require removal and replacement.
Given the Lilly Pillys were approximately 4 metres in height at the time of his inspection Mr Inman’s recommendations are relatively minor. The photograph Figure 8 in his report suggests that it would be unlikely that such a small reduction would improve the view much at all let alone for someone seated at the table on the deck. Mr Inman did not provide any alternative heights above the 2.5 metres Mr Kokkinos suggested. There appears to be no impediment to pruning the Lilly Pillys to a greater degree, such as to 3 metres, other than the question whether or not a permit is required if more or less than 20% of the canopy is reduced. No permit is required in relation to the Avocado tree but there is question as to whether it would survive reduction to 3 metres. Although Mr Inman does not recommend removal of the Avocado tree he states if the Avocado tree was removed he would recommend replacement with another Lilly Pilly, as this would make it easier to prune/hedge the group of trees each year.
The Tribunal is satisfied that a further reduction in the height of the trees is necessary to restore the view. A reduction of the trees to 3 metres, double the height of the fence, should achieve this as well as maintaining a reasonable level of privacy screening to the Laings' backyard and pool when people are seated on the deck.
The current trees do not really improve the rear bedroom privacy issues and the Laings have already taken further steps to address this by planting three more Lilly Pilly trees on the boundary fence. Alternatively they could also plant an appropriate bush species outside the bedroom window or alternatively use different and more flexible window coverings.
In consideration of all the matters required under section 73 and 75 of the Act, and in particular the contribution the trees make to the amenity and contribution to privacy, the Tribunal therefore makes the following order:
(1) The registered owners of the lot at 52 Southern Cross Parade, Sunrise Beach, Queensland (the tree-keepers) arrange for the following works to be carried out on the trees the subject of the application (the works):
a.All 6 trees be reduced in height.
b.Starting at the Lilly Pilly closest to the tree-keeper’s house, reduce that tree to 3 metres in height from ground level at the base of that tree.
c.From that first tree’s height of 3 metres, reduce the height of the remainder of the trees by following a horizontal line across to the last tree.
d.The work on the Lilly Pillys can be carried out by a person chosen by the tree-keepers. The tree-keepers shall obtain any necessary local council permit required prior to the work.
e.The work on the Avocado tree is to be carried out by an Australian Qualifications Framework, level 3 qualified and appropriately insured Arborist.
f.If the Arborist considers the Avocado tree would not survive reduction to the required height, the tree is to be removed and replaced by a Lilly Pilly and the costs for that work only be shared equally between the parties.
g.The work on the Lilly Pillys is to be carried out in late winter 2013 and annually thereafter during late winter.
h.The work on the Avocado tree, should it remain, be carried out by 30 May 2013 and annually thereafter at any time other than late summer or early spring.
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