Laing & Anor v Kokkinos & Anor (No 2)
[2013] QCATA 247
•28 August 2013
| CITATION: | Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 |
| PARTIES: | Vincent James Laing Rosina Maria Laing (Applicants/Appellants) |
| v | |
| George Kokkinos Helen Kokkinos (Respondents) |
| APPLICATION NUMBER: | APL425-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision of 20 November 2012 is set aside. 3. The Applicants arrange for the following works to be carried out: a) Reduce the height of the Applicants’ tallest Lilly Pilly tree to 3.8 m in height from ground level at the base of that tree. b) From that tree’s height of 3.8 m, reduce the height of the remaining trees to 3.8 m by following a horizontal line across. c) The work on the Lilly Pilly trees may be carried out by a person chosen by the Applicants. d) The work on the avocado tree is to be carried out by an Australian Qualifications Framework, level 3 qualified and appropriately insured arborist. e) The Applicants are to maintain the row of trees to this height. f) The work on the Lilly Pilly trees is to be carried out before 1 October 2013 and annually thereafter during late winter. g) The work on the avocado tree is to be carried out by 1 October 2013 and annually thereafter at any time other than late summer or early spring. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREE – SEVERE OBSTRUCTION OF VIEW – where the Respondents commenced proceedings in the Tribunal for orders that the Applicants reduce the height of trees growing along a common boundary – where the Respondents submitted the trees formed a severe obstruction of a view – where the Tribunal held that there was a severe obstruction and ordered that the trees be reduced in height to 3 m – where the Applicants seek to appeal that decision – where the Applicants contend the Tribunal failed to correctly assess whether there was a severe obstruction – where the Applicants contend the orders were inappropriate – where the appeal ground raises a question of mixed law and fact – whether the Tribunal erred in the way in which it assessed a severe obstruction – whether the obstruction from the Respondents’ dwelling was severe Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 61, s 66(2)(b)(ii), s 66(3)(b)(ii), s 72, s 73, s 75 Calvisi v Brisbane City Council (2008) 1 PDQR 374, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
These proceedings concern an appeal of a decision made by the Tribunal under Chapter 3, Part 5 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’).
It will assist both an explanation of the decision made by the Tribunal and an analysis of the grounds of appeal to discuss the legislative framework of the Act and the background of the matter.
Legislation
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application, land is affected by the tree.[1]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 61.
Land is considered to be affected by a tree at a particular time if it caused or is causing (or is likely within the next 12 months to cause) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of their land.[2] In these circumstances, the Tribunal may make an orders it considers appropriate to remedy, restrain or prevent the interference.[3]
[2]Ibid s 46(a)(ii)(C).
[3]Ibid s 66(2)(b)(ii).
For the purposes of the Act, the term ‘interference’ includes an obstruction of a view.
It is not the purpose or intent of the Act to provide an applicant with greater or better views than those which existed at the time of purchase. Section 66 of the Act provides that the Tribunal may only make orders under sub-section (3) if a tree, the subject of the application, is at least 2.5 m above the ground and the obstruction is a severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.
When deciding an application for an order under s 66 the Tribunal must consider the general matters listed in s 73, and the principle that the removal or destruction of living trees should be avoided, ‘unless the issue… can not otherwise be satisfactorily resolved.’[4] Alternatives to removal must, if appropriate, be considered: for instance, pruning.[5] Section 75 refers to some additional matters the Tribunal may consider if a neighbour alleges a tree has caused, or is causing, an unreasonable interference with the use and enjoyment of the neighbour’s land.
[4]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 72.
[5]Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) 36.
Background
Vincent Laing and Rosina Laing (‘the Applicants’) have lived at 52 Southern Cross Parade, Sunrise Beach since 1996. In July 2004 they planted five Syzgium australe (Lilly Pilly) beside a Persea Americana (Avocado) along the western fence line of the property. In their submissions, the Lilly Pillys were planted to create a natural privacy screen from an overlooking deck on the adjoining property at 54 Southern Cross Parade.
In 2005, the property at 54 Southern Cross Parade was sold to George and Helen Kokkinos (‘the Respondents’). It appears the property was subject to an existing tenancy agreement, and the Respondents took possession of the property sometime in 2006. The Respondents submit that when they purchased the property they enjoyed a north-easterly view of the ocean from the deck (‘V1’) and adjoining kitchen area (‘V2’). They now contend that those views of the ocean are ‘totally obstructed’ by the Applicants’ trees which have grown to a height of 4-5 m.[6]
[6]George and Helen Kokkinos, ‘Statement of George & Helen Kokkinos’ Submission in Kokkinos & Anor v Laing & Anor , NDR026-11, 27 August 2012, [8].
It appears the Respondents asked the Applicants that the trees be pruned to fence height (1.5 m). The request was refused; the Applicants did not wish the trees to be any lower than they were because they value the privacy the trees afforded their property. In the Applicants’ submissions, the Respondents have harassed them and other neighbours to remove or prune the branches of trees in order to improve the view from their house.[7]
[7]Vincent and Rosina Laing, ‘Response to application for a tree dispute – Neighbourhood Disputes Resolution Act 2011’, 24 January 2012, 7.
Tree Dispute
On 14 December 2011, the Respondents commenced proceedings in the Neighbourhood Disputes jurisdiction of the Tribunal seeking orders that the Applicants remove or prune the branches of the trees along the boundary of the properties, and that the Applicants pay the costs for carrying out that work.
On 20 January 2012, the Tribunal directed that Benjamin Inman be appointed as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the Respondents’ application.[8] An inspection was conducted on 19 February 2012.
[8]Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013 – Arrangements for applications for orders to resolve other issues about trees, 1 July 2013.
The Tree Assessment Report relevantly provides:
The [Applicants’] trees have now grown to obstruct approximately 50% of the [Respondents’] view of the ocean. Due to the large nature of the applicants [sic] deck they do have multiple viewpoints available to them, however the view from the kitchen dining area is the view in dispute…
Mr Inman recommended that all 6 trees be reduced in height to 3.8 m. While an arborist would be needed to reduce the height of the avocado tree, the report states that the Applicants would be easily able to maintain the Lilly Pilly trees at this height.
On 7 March 2012, the Tribunal proposed a number of orders to give effect to Mr Inman’s recommendations. While the Applicants agreed to those orders, the Respondents did not consent; they advised that those orders would not restore their view and they wanted the trees reduced to 2.5 m. Mr Inman notes in his report that while this height would restore the Respondents’ view of the ocean, it would leave no privacy screen for the Applicants and the avocado tree would not survive that level of pruning. The matter was listed for hearing.
Hearing
On 13 November 2012, the matter was heard by a Member of the Tribunal in Maroochydore. In a reserved decision, dated 20 November 2012, the learned Member held that the Respondents’ views of the ocean had been severely obstructed by the Applicants’ trees.[9] Upon making that finding, the learned Member wrote:
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 [Applicants’] backyard and pool when people are seated on [the Respondents’] deck.[10]
[9]Kokkinos and Anor v Laing and Anor [2012] QCAT 580 at [38].
[10]Ibid [43].
The learned Member ordered that the Applicants arrange for works to be carried out which in effect reduced the height of the trees to 3 m.
Application for leave to appeal or appeal
The Applicants seek to appeal that decision. On 19 April 2013, the Tribunal’s decision was stayed pending the determination of this appeal.
The Applicants may appeal as of right on a question of law but need the leave of the Appeal Tribunal if they wish to appeal on questions of fact, or mixed law and fact.[11]
[11]Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(b) (‘QCAT Act’).
The proposed grounds of appeal contend the learned Member who made the orders allowing the Respondents’ application erred in a number of respects. The Applicants rely on those errors and the general importance of the legal questions they raise as warranting a grant of leave. The grounds may be summarised as:
1. an allegation that they were denied natural justice because the learned Member preferred the Respondents’ evidence which, in the Applicants’ submission, was unsubstantiated;
2. an error on the part of the learned Member in finding that there was a severe obstruction of a view;
or, in the alternative,
3. if there was a severe obstruction of a view, that the learned Member erred in the exercise of her discretion by placing more weight on the need to restore the Respondents’ view than on the contribution the trees make to the amenity of the Applicants’ land.
In cases such as these where the grounds raise questions of law (grounds 1 and 3) and a question of mixed law and fact (ground 2), the requirement for leave as to the latter question will not limit the Applicant’s substantive right of appeal for the former.[12] For the reasons that follow it is appropriate to decide the appeal and application for leave together.
[12]See Seymour v Racing Queensland Ltd [2013] QCATA 179.
Ground 1 – Natural justice
Under s 3(b) of the QCAT Act the Tribunal must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick.’ It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’.[13] It is not bound by the rules of evidence or the practices and procedures of courts, and must act with as little formality and technicality and with as much speed as it can;[14] and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’.[15]
[13]QCAT Act s 4(c).
[14]Ibid s 28(3)(d).
[15]Ibid s 62(1).
This emphasis on expedition and informality does not, however, allow the Tribunal to pursue speedy resolution at all costs. In all proceedings it must ‘act fairly and according to the substantial merits of the case’[16] and ‘observe the rules of natural justice’[17].
[16]Ibid s 28(2).
[17]Ibid s 28(3)(a).
The Applicants’ contend they were denied natural justice. In particular, they argue that the learned Member erred in accepting the Respondents’ submission as to what view, in fact, existed from V1 and V2 at the time of purchase. In the reasons for decision, the learned Member observed:
The Tribunal is satisfied… 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.[18]
[18]Kokkinos & Anor v Laing & Anor [2012] QCAT 580 at [27].
The Applicants’ outline of argument in this respect is not easy to comprehend. In the Applicants’ submission, the view claimed to have existed was ‘unsubstantiated’ and the learned Member’s subsequent course of placing ‘undue and unwarranted attention and emphasis’ on the Respondents’ claims amounted to bias towards the Respondents – and, by inference, against the Applicants. In the absence of further particulars, I understand the Applicants submission to be that this ‘course’ gave rise to actual bias and the Member was impermissibly prejudiced against the Applicants.
In their submissions in support of the grounds of appeal they persist with this allegation of bias despite the absence of any supporting evidence. The submission is misconceived and, in the absence of more compelling particulars, appears to have been made merely because a decision was made which did not find favour with the Applicants.
There was no demonstrated or discernable appearance of bias in the way in which the learned Member heard the matter and there is, in my view, no substance to this ground. The Applicants were given an adequate opportunity to present their case, such as it was, and it cannot be demonstrated that they were denied natural justice.
Ground 2 – Severe obstruction of a view
The Applicants’ second ground of appeal involves a question of mixed law and fact: whether the learned Member was right or wrong in the way in which she chose to assess the Respondents’ claim of severe obstruction (law) and whether the findings she made about their evidence were correct or incorrect (fact). As noted earlier, where an applicant seeks to appeal a decision on a question of mixed law and fact, they must first seek leave of the Appeal Tribunal.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[19] Is there a reasonable prospect that the applicant will obtain substantive relief?[20] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[21] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[22]
[19]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[20]Cachia v Grech [2009] NSWCA 232 at 2.
[21]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[22]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The enjoyment of a view may be impaired in two ways:
First, by lessoning the worth of a view by, for example, the construction of a communication tower on a mountainside. Secondly, an otherwise pleasant view may also be impaired by the creation of a physical non-transparent barrier between the subject-matter comprising the view and the point of observation.[23]
[23]Gillespie, J, ‘Private nuisance as a means of protecting views from obstruction’ (1989) 6 EPLJ 94 at 95.
The loss of a view will, however, never cause sufficient loss of use and enjoyment of land so as to constitute an actionable nuisance: ‘Prospect… is a matter only of delight, and not of necessity’[24]. In Australia, it is well established that there is no general right to a view from one’s property.[25]
[24]William Aldred’s Case [1610] 77 ER 816 at 821.
[25]See Calvisi v Brisbane City Council (2008) 1 PDQR 374 at 381-382.
Section 66 of the Act provides that an applicant may seek an order of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land. That section does not create a right to a view, the remedy referred to is a statutory one which is discretionary, and will not be exercised if it is not appropriate in the circumstances.
The Act makes it clear that there is a three step process which the Tribunal must follow when determining applications for orders under s 66(3)(b)(ii) of the Act.
First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, ss 72, 73 and 75.
Within this framework, a ‘severe obstruction’ may be categorised as a jurisdictional fact: ‘a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question.’[26] As a consequence, the absence of such a finding will invalidate an order made under s 66 of the Act.
[26]Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139.
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.’[27] Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.
[27]Queensland, Parliamentary Debates (Hansard), 2 August 2011, 2309 (Paul Lucas, Attorney-General).
The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales.[28] In Haindl v Daisch[29] the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements.[30] 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.[31]
[28]Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14E(2).
[29][2011] NSWLEC 1145.
[30]Ibid [64].
[31]Ibid.
In determining the nature of the view that is obstructed, some assistance is also provided by using the planning principle in the earlier LEC decision of Tenacity Consulting v Warringah[32]. In that decision, Roseth SC adopted a four step process for assessing the nature of the view with which there was interference caused by development.[33] For the purpose of proceedings in the Tribunal’s Neighbourhood Disputes jurisdiction, only the first three tests are relevant.
[32][2004] NSWLEC 140.
[33]Ibid [26]-[28].
The first step is to identify and value the type of views affected: water views and iconic views are valued more than views not of those things; and whole views are valued more highly than partial views.
The second step identifies the part of the dwelling the views exist and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sittings views are more difficult to protect than standing views.
The third step assesses the impact of the interference to the views of the whole property, not just for the view that is affected: views from living areas are more significant than from bedrooms or service areas, except those from kitchens which are highly valued. As Roseth SC said:
The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.[34]
[34]Ibid [28].
For the reasons that follow, and considering the above principles, I am persuaded the learned Member erred in this case in the way in which she assessed whether there was a severe obstruction of a view. It would also appear that the learned Member adopted an interpretation of what constitutes a ‘view’ within the meaning of the Act which was, with respect, too narrow.
The term ‘view’ is not defined in the Act and has no fixed legal meaning independent of the statutory context in which it is found. In the absence of a clear definition, the basic rule of statutory construction is that it should be construed according to its natural and ordinary meaning;[35] and, in a way that will best achieve the purpose of the relevant Act.[36]
[35]Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623 per Gaudron J
[36]Acts Interpretation Act 1954 s 14A.
In Haindl v Daisch, the LEC described a ‘view’ as:
… 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. [37]
[37]Haindl v Daisch [2011] NSWLEC 1145 at [26].
I am persuaded the natural and ordinary meaning of the term, and the context in which it is found in the Act, is consistent with the approach adopted by the LEC: ‘a single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis.’[38]
[38]Ibid [28].
The learned Member’s reasons for decision show that she did not consider the totality of what could be seen from the viewing locations, but rather sliced up that outlook and only assessed the obstruction to the partial ocean views that were available at the time the Respondents took possession of the property. Considering the reasons, it is likely the learned Member was led into error through the report of Mr Inman who, with respect, restricted the scope of his report to the ‘view of the ocean’ as the ‘view in dispute’.[39] It was this view which Mr Inman found was obstructed by approximately 50%.
[39]Tree Assessment Report, 19 February 2012, 3.
The way in which the learned Member assessed the Respondents’ application was not supported, then, by the correct principles of law.
In Glenwood Properties Pty Ltd v Delmoss Pty Ltd[40] Carter J held that it would be appropriate to grant leave in circumstances where there has been an error in the decision and that the question in issue is of general importance and one which should be the subject of discussion by an appellate court of tribunal.[41]
[40][1986] 2 Qd R 388.
[41]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389.
In circumstances such as these, where there has been an error in the way in which a jurisdictional fact has been assessed and where there is some merit in the Appeal Tribunal giving greater clarification in this relatively new jurisdiction, I am persuaded it is appropriate that leave to appeal be granted.
In deciding a question of mixed law and fact, the Appeal Tribunal may:
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision.
The appeal, in these circumstances, must be decided by way of rehearing and it is a matter for the Appeal Tribunal whether or not additional evidence should be admitted.[42] For the reasons discussed below, it is unnecessary for further evidence to be admitted.
[42]QCAT Act s 147(2).
What was the nature of the view at the time of possession?
The Tree Assessment Report contains photographs of the views from points described as V1 and V2. The photographs show that the standing view from V1 includes a number of partial ocean views; views of residential development; and views of trees belonging to the Applicants, and others that are growing in more distant properties. As would be expected, the sitting view of V1 is the same except that the obstruction caused by the Applicants’ trees is greater.
The composition of the view from V2 is the same as V1 except to the extent that the depth of field of view is less, as a result of being inside the Respondents’ dwelling. As a consequence there is an additional minor obstruction caused by structural elements of the house within the view.
Considering the passage of time, it is likely the nature of the view from V1 and V2 would have been similar when the Respondents took possession of the property, but for an additional partial ocean view in place of the current view of the Applicants’ trees and greater partial views of the ocean which are currently obstructed by trees growing in other properties.
Where is the view seen?
The second consideration is from which part of the dwelling the view is seen. In this matter, the views from V1 and V2 are seen from the deck and kitchen dining area, respectively. The north-easterly views from V1 and V2 are effectively across the rear boundary of the property which, applying the planning principles in Tenacity, are reasonable to take steps to preserve. That being said the expectation of restoring the sitting view from V1 which existed when the Respondents purchased their property is, with respect, unreasonable.
What is the extent of the view that is lost by the trees?
Considering the totality of these views, I would classify the obstruction caused by the Applicants’ trees as of 19 February 2012 (i.e. the date Mr Inman inspected the properties) as being moderate.
Whether there is a severe obstruction to a view is, however, not limited to the interference that exists at the time the application is filed; land is affected by a tree if the tree is likely within the next 12 months to cause a severe obstruction to a view.[43]
[43]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 46, 66.
A rehearing of the matter would require the interference with the Respondents’ use and enjoyment of the land to be assessed as it is now. I am persuaded that it is likely that the Applicants’ trees are now or at least within the next 12 months likely to cause a severe obstruction to the Respondents’ view from their dwelling.
Adopting this course makes it unnecessary to consider the Applicants’ third ground of appeal – whether the learned Member placed undue weight on the need to restore the Respondents’ view rather than on the contribution the trees make to the amenity of the Applicants’ land. This is because in deciding an appeal against a decision on a question of law, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the Tribunal that made the decision for reconsideration, with or without additional evidence and other directions; or make any other order it considers appropriate.[44] In this case, the Appeal Tribunal is in as good a position as the Tribunal at first instance to determine the most appropriate orders in the circumstances.
[44]QCAT Act s 146.
Appropriate orders
In deciding what orders are appropriate, the Tribunal must consider the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely ss 72, 73 and 75.
In light of those sections the question for the Tribunal involves, on the one hand, balancing the interests of maintaining a tree at its current height, width or shape against fairness to neighbours whose views have been severely obstructed.
The Applicants’ trees presently contribute to the natural landscape and scenic value of the surrounding neighbourhood. As well as contributing to the landscaping and garden design of the Applicants’ land, the trees provide and improve privacy to both neighbours. Compared with other built forms that are included in the Respondents’ view, the presence of the Applicants’ trees is quite pleasant albeit an interference to other elements of that view. That being said, their value is not merely aesthetic. The trees provide shade, act as natural wind breaks and attract birds and other wildlife.
Mr Inman reports that it is possible to maintain the Lilly Pilly and Avocado trees at a height of 3.8 m without either type of tree having to be removed. It would appear that the likely impact on the trees regarding this type of work would be minimal and, so far as the work relates to the Lilly Pillys, could be easily done by the Applicants themselves. The Tree Assessment report provides that an AQF level 3 arborist would be required to complete the works should the Tribunal order the avocado tree be maintained at a height of 3.8 m. After this initial work, the Applicants could then maintain this row of trees, at that height, by what is described in the Tree Assessment report as relatively easy pruning that can be done once each year.
Weighing these matters, as well as the fact the Applicants’ trees existed before the Respondents acquired their land, I am persuaded an order that the trees be pruned and, thereafter, maintained at a height of 3.8 m would strike the most appropriate balance between the relevant interests. While this height is greater than what was ordered by the learned Member – who determined that all 6 trees be reduced in height to 3 m – the difference is due, in my respectful opinion, to the undue weight placed on the purported need to restore the sitting view from V1. In the circumstances, it is unrealistic to maintain such views and a more reasonable balance is struck with the trees being maintained at 3.8 m.
I understand that the Applicants have, since the Respondents filed the originating application, planted 3 additional Lilly Pilly trees beside the others on the boundary. In these circumstances, it is appropriate that the following orders also apply to them.
For these reasons, the Appeal Tribunal makes the following orders:
1. Leave to appeal is granted.
2. The decision of 20 November 2012 is set aside.
3. The Applicants arrange for the following works to be carried out:
a)Reduce the height of the Applicants’ tallest Lilly Pilly tree to 3.8 m in height from ground level at the base of that tree.
b)From that tree’s height of 3.8 m, reduce the height of the remaining trees to 3.8 m by following a horizontal line across.
c)The work on the Lilly Pilly trees may be carried out by a person chosen by the Applicants.
d)The work on the avocado tree is to be carried out by an Australian Qualifications Framework, level 3 qualified and appropriately insured arborist.
e)The Applicants are to maintain the row of trees to this height.
f)The work on the Lilly Pilly trees is to be carried out before 1 October 2013 and annually thereafter during late winter.
g)The work on the avocado tree is to be carried out by 1 October 2013 and annually thereafter at any time other than late summer or early spring.
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