Minahan v Kosky and Kosky

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Minahan v Kosky and Kosky [2018] QCAT 351

PARTIES:

CLARE LESLIE MINAHAN
(applicant)
v

LESLIE KOSKY AND ANDREA KOSKY

(respondent)

APPLICATION NO:

NDR090-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

14 September 2018

HEARING DATE:

2 February 2018

HEARD AT:

Southport

DECISION OF:

Member Bridgman

ORDERS:

The application is dismissed.

CATCHWORDS:

TREES – whether trees pose risk of serious injury to any person – whether trees causing serious damage to land or property on land – whether trees causing severe obstruction of sunlight to windows – whether severe obstruction of sunlight to roof constitutes significant, ongoing and reasonable interference with use and enjoyment of lands

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 48, s 49, s 52, s 59, s 62, s 65, s 66, s 73, s 74, s 75

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 110, s 111

Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Miles & Anor v Gough & Ors [2017] QCA 190

Robertson v Darvas [2016] QCAT 136
Thomsen v White [2012] QCAT 381

Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. The Applicant, Clare Leslie Minahan is registered proprietor of the land on which her family home is built. The house was there in 2005 when the property was purchased.

  2. Her neighbours to the east on a Gold Coast canal estate cul-de-sac are Leslie Kosky and Andrea Kosky and are registered proprietors of land on which their principal place of residence is located. They have owned the property since 1983.

  3. Both properties face the canal to the north-west, and each has a land area of 834m2.

  4. The Koskys planted two Cook Pines (Araucaria columnaris) towards the canal frontage of their property more than 20 years ago. The juvenile trees were a gift from Mr Kosky’s parents, and Mr Kosky professes strong sentimental attachment to the trees.

  5. The trees have prospered and are a prominent feature of the Koskys’ property. Standing 19.5 m and 24.5 m tall, the trees are visible from the street as well as the canal side.

  6. The eastern tree, smaller and furthermost from the Minahan property, stands over or near a Council easement under which a stormwater pipe is located.

  7. The trees have become contentious between the neighbours because of:

    a)litter from the trees;

    b)shading that the Minahans say reduces the usability of certain rooms in winter due to cold and lack of light, and obstruction of sun to a planned roof-top solar system; and

    c)assertions by the Applicant that if one or both trees were to fall, personal injury or even death could result, and there might be damage to their property.

  8. Ms Minahan’s application is for removal of the two trees and other orders under the Neighbourhood Disputes (Dividing Fences and…

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Details
Case
[2018] QCAT 351
Decision Date

CaseChat Overview and Summary

The case of Minahan v Kosky and Kosky involved a dispute between neighbours over the presence of trees on adjacent properties. The Minahans sought a tree order under the Trees (Preservation) Act 1986, alleging that the trees on the Koskys' property were causing serious damage, obstructing sunlight, and interfering with their use and enjoyment of their land. The dispute came before the Land and Environment Tribunal of New South Wales. The primary legal issues the court had to address were whether the trees posed a risk of serious injury, caused serious damage, obstructed sunlight excessively, and interfered with the use and enjoyment of the Minahans' property in a substantial, ongoing, and unreasonable manner.

The Tribunal considered the evidence provided by the Minahans, including expert testimonies from an architect and an engineer. The architect presented a shade study showing a 37% reduction in sunlight on the Minahans' roof around the winter solstice, and the engineer testified that the shading made a rooftop solar system unworkable. However, the Tribunal found that the Minahans had not provided sufficient evidence to demonstrate that the trees caused severe interference with their use and enjoyment of the land. The Tribunal noted that while the shade from the trees was significant, it did not amount to the severe, ongoing, and unreasonable interference required for a tree order under the Act. Furthermore, the Koskys had committed to annual inspections and any necessary action to address safety concerns, which was considered an important accommodation of the Minahans' concerns.

Based on the evidence, the Tribunal concluded that the Minahans had not met the threshold for a tree order. Consequently, the application was dismissed, and no tree order was made against the Koskys. The Tribunal's decision underscores the necessity for substantial and unreasonable interference to warrant a tree order, and in this instance, the Minahans' claims did not meet that standard.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, the Tribunal proceeded on the basis that the matters stated in paragraph [16] above were the matters in dispute.Applicant’s evidence and submissions Evidence was given for the Applicant by Mr Minahan, Mr Michael Witty, Architect, and Mr Ray Cooper, Engineer and Director, Central Solar Systems. The Applicant also relied on the Respondents’ arborist’s report. Mr Minahan testified that the shade of the trees prevented sunlight from warming key rooms in the house, resulting in the family being unable to make use of those rooms in winter because they were too cold and dark. The rooms were the north and north-west facing living and dining rooms, winter coolness being exacerbated by the need to close doors to prevent drafts. Mr Witty had prepared a shade study for the Applicant using software he utilises generally in his architecture practice. Baseline data for the shade study was drawn from a nearby property with similar roof aspect but no shade problems. Shade cover data was drawn from Nearmap and Google Earth sources, and year-round shade effects generated by computer simulation. The salient finding from Mr Witty’s study is an estimate of the most severe shade impacts at 37% reduction in sunlight on the roof on or around the winter solstice. Shade other times of the year was also modelled and quantified. The detail of Mr Witty’s study was challenged by the Respondents in cross-examination, including: concerns that animations did not adequately match still images; the failure of the shade study diagrams to reflect sloping surface shade distortions; and the methodology employed generally. Mr Witty also gave evidence that the shade affected the Minahans’ enjoyment of the land by requiring active heating and cooling to compensate. Further he gave evidence that if one or both trees were to fall onto the house there would be significant damage because of their height. Under cross-examination Mr Witty admitted he had not visited the Respondents’ property nor commissioned an independent survey of the boundaries, relying on search results and secondary sources. His evidence was this accorded with his clients’ instructions, seemingly to contain costs. He was also questioned by Mr Kosky about the trees’ location over a stormwater drain and other arboreal matters, and the representation of the Minahans’ house on the drawings including the depiction of walls and rooms. Mr Cooper is an engineer who has been working in renewable and solar energy since 1977. In his opinion the shading from the trees was such that a rooftop solar system would not be workable. His evidence was that whether an operating system was self-sufficient depended on the tariff. He also gave evidence about the merits of various types of systems and the use of optimisers. His evidence canvassed the merits of various solar technologies, noting that systems capable of operating when part shaded were considerably less efficient. He estimated the reduction in solar generating capacity because of the shading, based on Mr Witty’s study, at 7,231 watts, approximating daily hot water needs. He concluded “it will not be possible for you to have your hot water service powered by your solar system.”[4][4]Letter from Mr Cooper to Ms Minahan, 27 October 2017, Solar production lost due to severe shading p.2.

Decision

Reasons for decision

Although safety issues were not demonstrated on the evidence, the Tribunal notes Mr Kosky’s clear undertaking for annual inspection and any necessary action, quoted above at [43], and considers that statement an important accommodation of Ms Minahan’s concerns.Conclusion A tree order can only be made in this instance if the Tribunal has before it evidence that the interference is severe. That is not the case here. Accordingly, no order can be made. Even if the shade was severe, on the evidence before the Tribunal, it does not constitute substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land. The application must be dismissed.

Ratio Decidendi

Legal Principle Established

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