Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford
[2016] QCATA 203
•22 December 2016
| CITATION: | Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 |
| PARTIES: | Neverfail Pty Ltd, as trustee for The Harris Siksna Family Trust; Andrew John Wilkinson and Ilma Raita Wilkinson as trustee for The Wilma Family Trust (Applicant/Appellant) | |
| v | ||
| Kathryn Michelle Radford | ||
| APPLICATION NUMBER: | APL399-15 | |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 26 August 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody Senior Member Brown |
| DELIVERED ON: | 22 December 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision dated 31 August 2015 is set aside. 4. The application for a tree dispute is dismissed. 5. The parties must file in the Tribunal and exchange any submissions in relation to the costs of the proceeding below and the appeal within twenty-eight (28) days. | ||
| CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where finding of a severe obstruction of a view caused by a tree a jurisdictional fact - where Tribunal below found that tree located on applicant’s land caused a severe obstruction of a view – whether reasonably open to make a finding on the evidence – whether error in finding jurisdictional fact established APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – Leave to Appeal – where Tribunal below made finding of jurisdictional fact not open on the evidence – whether leave to appeal should be granted APPEAL AND NEW TRIAL – APPEAL – Rehearing – whether tree on applicant’s land caused a severe obstruction of a view existing at the time respondent took possession of the land – where respondent’s home had been relocated and renovated after respondent first took possession – where view existing when respondent first took possession of land could presently only be enjoyed from restricted viewing locations ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a tree on the applicant’s land is obstructing the respondent’s city view – where the tribunal ordered the removal of the tree – whether the relevant view from the respondent’s land is protected under the Neighborhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether the tribunal has jurisdiction to make a tree order Body Corporate and Community Management Act 1997 (Qld), s 167 Neighborhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 43, 46, 52, 59, 62, 66, 72, 73, 74, 75 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142, 146, 147 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Cachia v Grech [2009] NSWCA 232 Cairns Regional Council v Carey [2012] QCATA 150 Calvisi v Brisbane City Council (2008) 1 PDQR 374 Ericson v Queensland Building and Construction Commission [2014] QCA 297 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Haindl v Daisch [2011] NSWLEC 1145 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Mahoney v Corrin [2013] QCAT 318 Marsh v Baxter [2015] WASCA 169 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Norbury v Hogan [2010] QCATA 27 Oldham v Lawson(No 1) (1976) VR 654 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Radford v Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Ors [2015] QCAT 334 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55 Vecchio v Papavasiliou [2015] QCAT 70 Yanner v Eaton (1999) 201 CLR 351 | ||
APPEARANCES and REPRESENTATION:
| APPLICANT: | Ms Z Harris for the applicant |
| RESPONDENT: | Self-represented |
REASONS FOR DECISION
Justice Carmody
As Senior Member Brown explains in his detailed reasons, QCAT's discretion under s 66(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is limited to making orders for the purposes specified in relation to trees that affect adjoining land.
Under s 46 of the Act a tree relevantly affects land if it is causing a substantial, ongoing and unreasonable interference with its overall use and enjoyment.
The tribunal found that since construction work in 2005 the respondent’s protected view is now available only at the top of the back steps, when lying on the floor of the upper deck or standing on a chair on the lower level of her dwelling.
Even on the most generous interpretation, an impaired view from any one of those vantage points is not reasonably or objectively capable of substantially and unreasonably interfering with the day to day use and enjoyment of the respondent’s land. Beyond them she has no more right to protect a view than anyone else and the tribunal has no discretion to make an order for the removal of a tree that does not affect land.
Accordingly, the order under appeal is void because the tribunal purported to exercise a discretion the law does not give it or otherwise must be set aside for legal error within jurisdiction and those proposed by Senior Member Brown substituted in lieu.
Senior Member Brown
What is this appeal about?
Neverfail Pty Ltd, Andrew Wilkinson and Ilma Wilkinson (who I will collectively refer to in these reasons as Neverfail) are the owners of a property in inner city Brisbane on which is situated a tree commonly known as a Chinese elm (“the tree”). The respondent, Dr Radford, lives in a property adjoining Neverfail’s land. Dr Radford applied to the Tribunal for orders in relation to the tree. Dr Radford claimed that the tree substantially and unreasonably interfered with the use and enjoyment of her land as it created a severe obstruction of city views that existed when she took possession of her land. Dr Radford also claimed that the tree severely obstructed sunlight to her home.
The Tribunal found a severe obstruction of the view from Dr Radford’s dwelling caused by the tree that resulted in a substantial, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land.[1] The Tribunal ordered the removal of the tree and further ordered specified remedial plantings. Neverfail has appealed the decision.
[1]Radford v Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Ors [2015] QCAT 334 (Reasons).
The findings by the learned member
Relevant to whether the tree constituted a substantial, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land, the learned member made a number of findings:
1. There were city skyline views from the house at the time Dr Radford took possession;[2]
[2]Reasons [84], [85], [87].
2. There remained a view from the dwelling that existed when Dr Radford took possession of the land in relation to which s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA”) applied;[3]
[3]Reasons [94].
3. A city view is a prized feature of a home and reflects on its desirability and value and the complete obstruction of such a view is unquestionably substantial and ongoing;[4]
[4]Reasons [97].
4. The obstruction of the view had a substantial effect on the value of Dr Radford’s land;[5]
[5]Reasons [100].
5. Regard must be had to the whole of the view and it is necessary to assess the extent of the obstruction as a whole;[6]
6. One quarter to one third of the total vista was totally obstructed by the tree at upper and lower levels of the property for 10 months of the year and half obstructed for the other 2 months;[7]
7. The obstruction of ¼ to 1/3 of the total vista was a severe obstruction of a view, reinforced by the significance of the view obscured;[8]
8. The tree was causing Dr Radford a substantial, ongoing and unreasonable interference with the use and enjoyment of her property as a result of:
(1)The obstruction of the view;
(2)The loss of enjoyment by Dr Radford;
(3)The significant reduction in the value of Dr Radford’s land.
9. In considering whether an order should be made for the removal of the tree, after weighing the competing interests of the parties, the balance lay with Dr Radford and the appropriate order was for the removal of the tree.
[6]Reasons [102].
[7]Reasons [106].
[8]Reasons [107].
What does Neverfail say?
Neverfail’s grounds of appeal can be summarised as follows:
1. The Tribunal erred when it found that the evidence supported a finding that the tree severely obstructed the view Dr Radford had from the dwelling when she first took possession of the land;
2. The Tribunal erred in finding, as a jurisdictional fact, that the obstruction caused by the tree was severe;
3. The Tribunal erred in failing to consider the separate requirements found in s 66(2)(b)(ii) of the NDA, namely that an order was required in relation to the tree to remedy, restrain or prevent a substantial, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land;
4. The Tribunal erred in finding that a diminution in the value of land is a relevant consideration in determining whether a tree is causing a significant, ongoing and unreasonable interference with the use and enjoyment of land;
5. The Tribunal erred in failing to properly consider ss 72, 73 and 75 of the NDA and in failing to make appropriate orders in relation to the tree;
6. The Tribunal erred in not affording Neverfail procedural fairness by:
a)eliciting evidence from a witness as to diminution in the value of Dr Radford’s land without giving Neverfail the opportunity to adduce evidence in response; and
b)permitting Dr Radford to adduce further evidence of the application in submissions after the hearing without giving Neverfail the opportunity to adduce evidence in response.
The appeal
An appeal on a question of law is as of right.[9] An appeal on a question of fact or mixed law and fact may only be made with the leave of the appeal tribunal.[10]
[9]QCAT Act, s 142(1).
[10]Ibid, s 142(3)(b).
The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision;[11] Is there a reasonable prospect that the applicant will obtain substantive relief;[12] Is leave necessary to correct a substantial injustice to the applicant caused by some error;[13] 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.[14]
[11]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[12]Cachia v Grech [2009] NSWCA 232 at [13].
[13]Op cit 5.
[14]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.
If an appeal is against a decision on a question of fact only or a question of mixed law and fact the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[15] In deciding the appeal, the appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[16]
[15]QCAT Act, s 147(1) and (2).
[16]Ibid, s 147(3).
An appeal on a question of law is not a rehearing. Unless the determination of the question of law is capable of determining the matter as a whole in the applicant’s favour, the proceeding must be sent back to the tribunal or the relevant decision maker for reconsideration.[17]
[17]Ericson v Queensland Building and Construction Commission [2014] QCA 297, esp at [3], [10], [13] and [16].
The appeal by Neverfail raises questions of law, questions of fact and questions of mixed law and fact.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA”)
The NDA provides a regime governing the obligations of persons with trees on their property in the non-rural environment and the rights and entitlements of neighbouring property owners.
A tree keeper has responsibilities under the NDA, including cutting and removing any branches of a tree that overhangs a neighbour’s land, and ensuring that a tree does not cause: serious injury to a person or serious damage to a person’s land or any property on a person’s land; or substantial ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.[18]
[18]NDA, s 52.
Land may be affected by a tree.[19] If a neighbour’s land is affected by a tree, and the neighbour cannot resolve the issue with the tree keeper using the process under Part 4 of the NDA, the neighbour may apply to the Tribunal for an order.[20]
[19]NDA, s 46.
[20]Ibid, ss 59 and 62.
The Tribunal can make orders it considers appropriate in relation to a tree affecting the neighbour’s land to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[21]
[21]Ibid, s 66(2).
For interference that is an obstruction of a view, the tree must rise at least 2.5 metres above the ground and the obstruction must be a severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.[22]
[22]Ibid, s 66(3).
The Tribunal must consider a range of matters in deciding an application for an order under the NDA.[23]
[23]Ibid, ss 73, 74 and 75.
The background to the appeal
In considering the various grounds of appeal relied upon by Neverfail, it is appropriate to consider the factual background to the dispute involving the tree, a Chinese elm, situated on Neverfail’s land.
The evidence before the Tribunal was that Dr Radford purchased the property in October 2003. Dr Radford subsequently undertook extensive renovations to the existing dwelling. Dr Radford’s evidence was that the result of these renovations included the entire house being moved 1.7 metres to the right of, and 2.6 metres toward the rear of, the property.[24]
[24]Statement of Kathryn Radford dated 1 October 2014 at p 7.
The learned member was satisfied that there was a view of the city skyline from the dwelling that existed when Dr Radford took possession of the land.[25] The learned member placed significant weight on the evidence of two witnesses, Ms Mastrapostolos and Mr Bisaro.[26] Ms Mastrapostolos was the real estate agent involved in the sale of the property to Dr Radford.[27] Mr Bisaro’s parents owned the property from 1996 until 2003 and Mr Bisaro lived in the property during this period.[28]
[25]Reasons at [87].
[26]Reasons at [84] – [86].
[27]T1-25 line 16.
[28]T1-17 line 13.
Ms Mastrapostolos gave evidence that the property had full city views with no obstructing plants or buildings.[29] Mr Bisaro gave evidence that the city could be viewed from various points on the rear deck of the house.[30] He said that it was not a sweeping wide vista.[31] Mr Bisaro said that the views from the property were from the rear deck in the direction of the swimming pool which was located in the left corner of the block.[32]
[29]T1-25 lines 35 – 40.
[30]T1-18 line 47.
[31]T1-19 lines 1 – 3.
[32]T1-19 line 34.
Neverfail says that the view that existed when Dr Radford took possession of her property is now no longer available as a result of Dr Radford moving the house on the property, other than a view from the floor level of the veranda of the building.[33] Neverfail says that the NDA does not protect a new view created by alterations to a dwelling.[34]
[33]Applicant appeal submissions at [13].
[34]Ibid at [16].
In its response in the proceeding below, Neverfail said that Dr Radford had raised the house on her property and shifted the house “up” the hill, adding a wrap around veranda around the upper level. Neverfail also said in its response that the renovations undertaken by Dr Radford to her property after she took possession had changed the location and aspect of the city view to something significantly different to that which existed when possession was first taken.[35]
[35]Response filed 3 April 2014.
In her statement filed in the proceeding below, Dr Radford said that city views were not created as a result of the addition of a side veranda or moving the house on the block. Dr Radford said that the original house had a “side to the back” veranda which ran 2.3 metres from the back left hand corner of the house. Dr Radford said that the photograph upon which she relied as evidence of the view that existed when she took possession of the land was “between 2.7 metres and 5 metres from the current corner of the house.”[36] Dr Radford stated:
However the city view existed from many positions around the house, as it still does, and the relative positions of buildings and houses changed as you moved around the veranda and house, as it still does. As can be seen from the original and proposed footprint plans of the Applicant’s house, the 2 dimensional position of the side of the back veranda (2.3 meters (sic) long) not only remains in exactly the same position as it was before the renovation, but so does much of the footprint of the original house.
…
… The house was moved approximately 1.7 meters (sic) to the right of the block to allow a lap pool to fit down the left hand side (ie away from the city view) and, as a consequence of that move, the house had to be moved 2.6 metres towards the back of the block to maintain the regulation distance of the front of the house to the kerb.[37]
[36]Statement of Kathryn Radford dated 1 October 2014 at p 7.
[37]Ibid.
Attached to Dr Radford’s statement are plans of the house before and after the renovations.[38] It is clear that the house has been extensively altered. The original deck had originally been limited to an area outside the kitchen and an adjoining (unidentified) room. What was originally a bathroom and toilet has become a rumpus room opening out on to a deck wrapping around 3 sides of the house. Also attached to Dr Radford’s statement are 6 photographs said to depict views from, variously, the upper veranda, living area, lower veranda and lower bedroom. All of these photographs are of, and from, the renovated house.
[38]Statement of Kathryn Radford dated 1 October 2014, exhibit 10.
At the hearing, Dr Radford gave oral evidence about the views from the property at the time she took possession.[39] Dr Radford was asked a number of questions about those views in the context of the location of the renovated house:
Member: Now, if you were to stand at a position where your eyes are at the same height as they used to be before the house was moved, where would a position like that be?
Dr Radford: My eyes would be in a same – in the same position all on the ground level where the grass – where the grass is downstairs… [a]nd then approximately at the deck – the height of the back veranda deck
Member: All right. So if your eyes is, what, the current level of the upstairs deck?
Dr Radford: Yes.
Member: that’s where your eyes would have been before the house was lifted?
Dr Radford: When I was on the deck, yeah. If I was looking at the view from there. If I was looking at the view from downstairs, it would have been on that upper part of the ground.[40]
[39]Transcript T1-39 line 23 and following, T1-40 line 1 and following.
[40]Transcript T1-41 lines 27 to 39.
Expert opinion was provided in the proceeding by two arborists. The Tribunal appointed Mr Cockram to undertake an assessment of the tree. Mr Cockram provided a report to the Tribunal.[41] Dr John Dwyer was engaged by Neverfail. His report was limited to expressing an opinion as to the age of the tree.[42] The experts prepared a joint report.[43] Relevant to the issue of the view, the experts reached agreement about what the photographs in Mr Cockram’s report depicted.[44] Neither expert gave evidence at the hearing.
[41]Report Anthony Cockram dated 27 July 2014.
[42]Report Dr John Dwyer dated 30 October 2014.
[43]Joint report dated 4 March 2015.
[44]Ibid at [2].
There is nothing in Mr Cockram’s report to suggest he was aware that the house had been moved and altered after purchase. Mr Cockram’s evidence as to the nature and extent of the views from the house and the obstruction of those views was based upon the house as it existed at the time of his inspection, not at the time Dr Radford took possession of the land.
Section 66 of the NDA
The evidence before the Tribunal about the view that existed when Dr Radford took possession of the land was a relevant consideration for the purposes of s 66 of the NDA. Section 66 of the NDA provides:
Orders QCAT may make
(1) Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.
(2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a) to prevent serious injury to any person; or
(b) to remedy, restrain or prevent—
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
(3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—
(a) the tree rises at least 2.5m above the ground; and
(b) the obstruction is—
(i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
(ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
Section 66(3)(b)(ii) has been the subject of extensive consideration by the Tribunal. In Laing & Anor v Kokkinos & Anor (No 2) (Laing) Alan Wilson J held (footnotes omitted):
[33] 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.
[34] 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.
[35] 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.’ As a consequence, the absence of such a finding will invalidate an order made under s 66 of the Act.[45]
[45][2013] QCATA 247.
The principal question arising on this appeal is the meaning of “a view” for the purposes of s 66(3)(b)(ii) of the NDA in circumstances where a dwelling has been renovated or otherwise altered after the neighbour takes possession of the land.
It is settled law that there is no right to a view.[46] A neighbour may apply to the Tribunal for an order to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstruction is caused by a tree or trees on adjoining land. Section 66 of the NDA creates a discretionary statutory remedy which will not be exercised if it is not appropriate to do so in all the circumstances.[47]
[46]Calvisi v Brisbane City Council (2008) 1 PDQR 374 at 381-382.
[47]Op cit 44.
A view is a single view with various elements contained within, not multiple views requiring separate analysis.[48] A dwelling may have multiple viewing locations from each of which there is a different view.[49] When assessing a view, it is necessary to consider the totality of what can be seen from the viewing locations from the dwelling rather than segmenting those views.
[48]Laing citing Haindl v Daisch [2011] NSWLEC 1145 at [26].
[49]Haindl v Daisch at [25].
In Vecchio v Papavasiliou[50] (Vecchio) the Tribunal held:
There is no general right to a view in Queensland. The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. Section 66(3)(b)(ii) creates a right to a view from a dwelling (my emphasis) that existed at the time the neighbour took possession of the land. If there was no dwelling at the time the neighbour took possession of the land, then there was no view that is protected by the Act.
[50][2015] QCAT 70.
In Vecchio, the learned Senior Member was required to consider whether the view enjoyed by a neighbour had been severely obstructed by a hedge of lilly pilly trees growing on the tree keeper’s land. The learned Senior Member found that s 66(3)(b)(ii) of the NDA requires a neighbour to establish the existence of a view from a dwelling at the time the neighbour took possession of the land. The Tribunal held that in circumstances where a neighbour acquired a vacant block of land and then built a dwelling to take advantage of views, s 66(3)(b)(ii) does not operate where the view is said to have been obstructed by a tree.
A reading of s 66(3)(b)(ii) of the NDA reveals arguably two quite different interpretations open to the Tribunal in determining the matter of a view. The first possible interpretation is that adopted in Vecchio. The second possible interpretation (which I will refer to as the “second interpretation”) is that the section has application in circumstances where it is the view alone that must exist at the time the neighbour takes possession of the land, not necessarily from a dwelling, and it is the obstruction of that view which must be assessed at the time of the hearing before the Tribunal. In other words, a neighbour may acquire vacant land from which there is a view, and subsequently a dwelling is built on the land and it is the obstructed view from the dwelling that the section addresses.
If the interpretation in Vecchio is to be preferred then clearly under s 66(3)(b)(ii) of the NDA a neighbour must establish a severe obstruction of a view from a dwelling. In other words, there must be a dwelling on the neighbour’s land when the matter is heard and determined by the Tribunal. As Alan Wilson J said in Laing, the Tribunal must first consider what view existed when the applicant took possession of the property and secondly must determine whether the trees on the adjoining property are causing a severe obstruction of that view. In determining whether, and if so to what extent, there has been an obstruction of a view for the purposes of s 66(3)(b)(ii) the Tribunal must, based on the evidence, undertake a comparison of the view that is said to have existed when the neighbour took possession of the land, and the view existing when the hearing is conducted.
If the second interpretation is applied, s 66(3)(b)(ii) requires a comparison between (for example) a view that existed when standing on vacant land, and a view from the upper level of a two story dwelling subsequently built on the land. Such comparison requires consideration of very different views from completely different viewing points and clearly cannot have been intended by the legislature.
In Laing, Alan Wilson J, adopting principles enunciated in Tenacity Consulting Pty Ltd v Warringah Council[51] (Tenacity Consulting), identified the three step process required to be undertaken when determining the nature of a view that has been obstructed:
[39] 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.
[40] 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.
[41] 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.
[51][2004] NSWLEC 140.
The process identified in Laing cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the same dwelling, at the time of the hearing. In assessing the value of a view, the reasonableness of protecting a view and the impact of the interference with a view, the same view must be capable of assessment at differing points in time.
It is uncontroversial for the purposes of applying and interpreting the NDA generally, that home renovations which include, for example, the construction of decks, additional rooms and additional levels are commonplace. A view that exists from an after possession addition such as a deck, a living area or a kitchen may be entirely different however to the view that existed from the original dwelling. In these circumstances s 66(3)(b)(ii) requires a consideration of the view as it existed from the original dwelling shorn of any after possession additions and alterations, and an assessment of that same view from the dwelling presently.
The second interpretation of s 66(3)(b)(ii) involves an assessment of the view from the dwelling at the time the neighbour first took possession of the land compared with what might be (in effect) a far more significant view from an extensively renovated dwelling. In these circumstances, the three step process referred to in Laing cannot be undertaken.
Section 66(3)(b)(ii) requires consideration of when a neighbour takes possession of land. “Possession” is not defined in the NDA and therefore has its ordinary common law meaning in the context in which the word appears and the broader objects of the Act. A neighbour may be a registered owner of land affected by a tree[52] or an occupier of the land.[53] A neighbour who is an occupier may not bring an application for a tree dispute unless the registered owner of the land has refused to make the application.[54] Generally speaking, a neighbour who is a registered owner of land takes possession when clear title passes to them, although ownership of land may be divorced from possession of land in appropriate cases.[55] An occupier, e.g. a tenant, has possessory and proprietary rights when the occupier takes possession of land under a lease or some other type of agreement entitling the occupier to exclusive possession.
[52]NDA s 49(1)(a)(i).
[53]Ibid s 49(1)(a)(ii).
[54]Ibid s 62(2).
[55]Yanner v Eaton (1999) 201 CLR 351, 388-9.
It is not open to a neighbour, when a dwelling is renovated after possession is first taken, to argue that they have taken possession of the renovated part of the dwelling subsequent to the renovations being carried out. It is possession of the land, not the dwelling, with which s 66(3)(b)(ii) is concerned. In this context and for the purposes of the section possession of land occurs when clear title first passes to the neighbour or in the case of an occupier when the occupier first takes exclusive possession.
Of course, it would be an overly restrictive interpretation of s 66(3)(b)(ii) that the section only has application where a dwelling is, at the time of a hearing, unaltered from the state it was in at the time the neighbour took possession. For example, what was a bedroom with a view, may have become a kitchen with the same view. An assessment of the view can be undertaken irrespective of whether the room was once a bedroom or has become a kitchen. If however the bedroom has, since the neighbour took possession of the land, become a kitchen and a large adjoining deck has been constructed and it is from that deck that the view is said to be obstructed, that view is one that simply did not exist at the time the neighbour took possession of the land. These examples highlight the importance of assessing the view for the purposes of s 66(3)(b)(ii) of the NDA in that the assessment of a view and the obstruction of a view will be a matter of fact and degree in every case depending upon the circumstances.
Severe obstruction of a view – a jurisdictional fact
One of the grounds of appeal relies on an error of mixed law and fact by the learned member in finding, as a jurisdictional fact, that the obstruction of the view caused by the tree was severe. A “severe obstruction” for the purposes of s 66 of the NDA is a jurisdictional fact. In BKE v Office of Children’s Guardian & Anor,[56] Beech-Jones J identified three relevant standards concerning appeals regarding findings of fact:
- Where the power or jurisdiction of the tribunal depended upon the objective determination of the facts being challenged;[57]
- Where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by the tribunal depended – a “jurisdictional fact”;[58]
- Where the challenged facts do not constitute part of the formation of the opinion or state of satisfaction ie they are not a jurisdictional fact.[59]
[56][2015] NSWSC 523.
[57]Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55.
[58]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
[59]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The meaning of a “jurisdictional fact” has been expressed thus:
The doctrine of jurisdictional fact can only have application where the statute in question requires the existence of a particular fact or facts as a condition of the exercise of jurisdiction. It is only where, in the words of Spigelman CJ in Timbarra at [39], “the statutory formulation...contains a factual reference” that the possibility arises that the factual reference in question may be a jurisdictional fact.[60]
[60]Australian Postal Corporation v D’Rozario (2014) 222 FCR 303.
The term “jurisdictional fact” is applied not only to facts, but also to a mixture of fact and opinion, and to a pure opinion.[61]
[61]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
In determining a tree dispute the Tribunal must find, as a fact, that a view has been severely obstructed by a tree before the Tribunal can then go on to consider whether the obstruction is a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. This involves questions of fact and opinion.
Turning to the decision of the Tribunal below, the learned member found at reasons [90] and following:
[90] A drawing by a building designer of the alterations to 122 Haig Road shows that the house was raised approximately 1600mm and moved sideways, maintaining an 1800mm setback to Haig Road.
[91] The question then becomes as to whether the views that were enjoyed from the dwelling when it was at a position 1600mm lower than it is now, and would have been protected by the Act if no alterations had been made, are still protected.
[92] The house was moved on the block, but the footprint of the old and new position overlap significantly, so that an observer could still today look from the dwelling at the same height as the eye-level of an observer when the land was taken possession of by Dr Radford.
[93] In practice that means a viewing position 1600mm lower than the eye-level of a viewer on the current deck. That might mean a person looking from a standing position on the rear stairs, or lying down on the current deck, or standing on a chair on the lower level. Whilst that may sound artificial, there is still a position in the dwelling from where the pre-existing view can be viewed.
[94] I am therefore satisfied that there is a view from the dwelling that existed when Dr Radford took possession of the land, in relation to which s 66(3)(b)(ii) will be operative.
Having determined the view that existed when Dr Radford first took possession of the land, the learned member considered whether the view was obstructed by the tree and whether that obstruction was severe. The learned member found at reasons [102] and following (footnotes omitted):
[102] In cases of these types regard is to be had to the whole of the view, and to assess the extent of obstruction as a whole.
[103] The city skyline view is in itself a substantial part of the overall view from the side of the dwelling. The joint experts report agreed that:
In Photo 4 from Mr Cockram’s report (view from lower level), the city skyline view makes up 1/3 of the total vista. The remaining 2/3 of the vista is considered rooftop skyline views.
In Photo 1 of Mr Cockram’s report (view from upper level), the city skyline makes up ¼ of the total vista. The remaining ¾ of the vista is considered rooftop skyline views
[104] Mr Cockram‘s opinion was that the tree at the time of his inspection was obstructing approximately 50% of the views of the city skyline from Dr Radford’s upper and lower floors in its defoliated winter state; and would obstruct 100% of the lower living areas (Verandah, Main bedroom), 95% of the upper Verandah and 70% of the inside living area when in full foliage.
[105] He considered that the view obstruction created by the tree would continue over the next 12 months (taking it to a current date) to take all viewing aspects from Dr Radford’s dwelling to the city skyline to 100% obstructed when in full foliage 10 months of the year, leaving 50% transparency view vista through the tree canopy between July and August of each year.
[106] The impact of this assessment is that ¼ to 1/3 of the total vista (the city skyline) is totally obstructed by the tree variously at upper and lower levels (which takes in the previous height of the house) when the tree is in full foliage for 10 months of the year; and is half obstructed for the other two months.
[107] The obstruction of ¼ to 1/3 of the total vista is a severe obstruction in itself. When this is coupled with the significance of the obscured view, being a city skyline, the severity of the obstruction is reinforced.
[108] I am therefore satisfied that the tree is causing a severe obstruction of the view.
The learned member found that despite the house having been moved, the view that existed when Dr Radford first took possession of the property could still be enjoyed provided a person was laying down on the upper deck, standing on the rear stairs or standing on a chair on the lower level. The learned member also found that the footprint of the old and new positions of the dwelling overlapped significantly.
It is clear from the Tribunal’s findings that the view that existed from Dr Radford’s dwelling when she took possession of the land was required to be assessed against that view as it existed at the time of the hearing. The learned member’s findings as to the extent of the obstruction of the view caused by the tree were based upon the evidence of Mr Cockram.[62] As I have observed, Mr Cockram’s report does not reveal any knowledge on his part that the house had been repositioned. The opinions expressed by Mr Cockram in relation to the extent of the obstruction of the view were based solely upon his inspection from the repositioned house, rather than from the discrete viewing points identified by the learned member which made up the view that existed when Dr Radford took possession of the land.
[62]Reasons [103] to [108].
The learned member erred in relying upon the evidence of Mr Cockram regarding the extent of the view that existed from Dr Radford’s dwelling and the obstruction of that view. Mr Cockram did not assess the view and the obstruction of that view from the viewing points identified by the learned member as being the view from the dwelling when Dr Radford first took possession of the land. The learned member’s findings reveal an error in the assessment of the jurisdictional fact of whether the tree severely obstructed the view from Dr Radford’s. The error was one of mixed fact and law.
Having found an error of mixed fact and law, a substantial injustice may be suffered by Neverfail if the tree is required to be removed and the remedial planting undertaken. It is therefore appropriate to grant leave to appeal. In determining a question of mixed fact and law, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision. The appeal must be decided by way of rehearing with or without the hearing of further evidence. I do not consider it necessary for further evidence to be allowed in order to hear and determine the matter.
In rehearing the matter, the learned member’s primary findings of fact are adopted other than where those findings have been challenged in this appeal or otherwise where there is doubt as to the findings made. I have formed my own views based on the evidence before the learned member consistently with the principles applicable in appeals by way of rehearing on the record of proceedings before a primary tribunal.[63]
The rehearing based on the evidence
[63]Cairns Regional Council v Carey [2012] QCATA 150.
a.The view when Dr Radford took possession of the land
Oral evidence of the view that existed when Dr Radford took possession of the land was given by Dr Radford, Angela Mastrapostolos and Mark Bisaro.
Mr Bisaro stated in a letter to Dr Radford that to the best of his knowledge the city views from the property were not obstructed by a tree.[64] Mr Bisaro’s evidence was:
…from anywhere on the deck you can see the city through the trees that were around the pool. So there was, I think, from best memory, there was a large palm tree and stuff that I think was on my property and there was an obvious gap in the trees over the corner of the property and, through that gap, you can see the buildings, Waterfront Place and I think a couple of other city buildings through there.
…
You could see it (the city view) from various parts of the deck but there was some – there was some leaves from around my pool that – you know – depending on where you were standing – obscured the view but there – I mean, you could see the city from various points on the deck. I wouldn’t say it was a sweeping wide vista though.[65]
[64]Exhibit 6 to statement of Kathryn Radford.
[65]Transcript T1-17 lines 26-31 and lines 44-47; T1-18 lines 1-3.
Mr Bisaro also gave evidence that in addition to the city views:
(y)ou could see the XXXX brewery and things like that.[66]
[66]Transcript T1-19 line 38.
Under cross examination Mr Bisaro gave evidence that he did not recall a tree on an adjoining property obstructing views from the dwelling.[67]
[67]Transcript T1-21 lines 44-46.
Ms Mastrapostolos gave evidence that, at the time Dr Radford purchased the property, there were full city views without obstruction:
…the property had full city views and what I remember it did have was full city views…There was nothing obstructing the view to the city be it plants, buildings, anything. There was nothing in the way of the view…it (the view) was the whole back of the house and down the left-hand side of the property that was there, even though it wasn’t the same as what it is now, there were views. You could – you know, as soon as you walked into the house, you could see the views.[68]
[68]Transcript T1-25 lines 35-47.
A consideration of the floorplan of the dwelling prior to relocation and renovation raises uncertainty as to the view that existed because it is difficult to apprehend just what Ms Mastrapostolos meant when referring to “the view” being seen “as soon as you walked into the house.” This aspect of the evidence was not further ventilated at the hearing. Ms Mastrapostolos provided two statements, in the form of letters, prior to the hearing. In a letter dated 13 February 2013[69] Ms Mastrapostolos said that when the house was sold to Dr Radford the view from, and light to, the house was not obstructed by any trees or other objects. Attached to Dr Radford’s application for a tree dispute is a photograph of the view from the dwelling which was used for marketing purposes at the time she purchased the property (“the marketing photograph”). Ms Mastrapostolos said that the unobstructed city view depicted in the marketing photograph existed when the property was sold to Dr Radford. Ms Mastrapostolos provided a further letter dated 13 March 2014[70] in which she stated that she had reflected upon the marketing photograph and her earlier letter and said that to the best of her recollection:
…having considered the photographs carefully, it seems that the view of the city from the left corner of the deck facing the city as spectacular as it was in 2003 did look across a similar tree filled urban view of the neighbouring properties in the foreground i.e. established trees were in existence at the neighbouring properties at the time 122 Haig Rd was purchased by Kathryn Radford in 2003.
[69]Exhibit 8.
[70]Exhibit 9.
Under cross examination at the hearing, Ms Mastrapostolos retracted this statement:
Well, I’m not saying that I saw trees at 32 Bangalla Street. Of course, there were trees down below on all the properties that it looks over, but there was nothing obstructing the view.[71]
[71]Transcript T1-37 lines 21-23.
Dr Radford gave evidence about the view when she purchased the property:
There were a number of places upstairs and downstairs. And the upstairs points of view were from the back veranda and the side portion of the back veranda. And when I’m saying the view, I mean the city skyline as it was then…And also you could see some of the view through the kitchen and dining room windows. And again, there was some partial view downstairs straight over the 30 Bangalla Street roof. So as you moved from one side of the deck to the other, the view stayed the same and the aspect of view stayed the same of the city. [72]
…
…not only could you see the entire city skyline, you could see a little bit of the rooftop of the two properties closest from upstairs. Downstairs, you couldn’t see any of the other rooftops. You could just see the Bangalla Street rooftops there…And then straight above it was the city view.
[72]Transcript T1-39 lines 23-32 and lines 41-44.
The marketing photograph attached to Dr Radford’s application for a tree dispute depicts an unobstructed city skyline view with some trees in the foreground. Ms Mastrapostolos gave evidence that the marketing photograph would have been taken from the back of the property approximately one week before the auction at which Dr Radford purchased the property.[73] Ms Mastrapostolos also gave evidence that she was unable to identify who had taken the marketing photograph and that it was possible it had been taken by the property sellers[74] although she later corrected this saying that she considered it doubtful that the sellers had provided the marketing photograph to her.[75]
[73]Transcript T1-28 lines 15 and 23.
[74]Transcript T1-31 lines 22-26.
[75]Transcript T1-34 line 13-14.
I adopt the findings made by the learned member in relation to the evidence of Mr Bisaro, Ms Mastrapostolos and Dr Radford that, at the time Dr Radford took possession of the property, the view from the rear of the dwelling was one encompassing a broad suburban outlook in the foreground leading to a city scape of high rise buildings. I also accept that the marketing photograph depicts the view from the dwelling at the time Dr Radford took possession of the property.
b. Has the view been severely obstructed?
The evidence is that the dwelling on the land has undergone significant renovations since Dr Radford purchased it. The view that existed from Dr Radford’s dwelling when she took possession of the land must be assessed against that view as it presently exists.
In her submissions in the appeal, Dr Radford does not take issue with the learned member’s findings at reasons [90] to [93] and in fact says that the findings “have only strengthened the case for the respondent”.[76] I infer from the submissions that Dr Radford agrees that only the view from those quite specific viewing points identified by the learned member from the current dwelling are the same view that Dr Radford enjoyed when she took possession of the land.
[76]Respondent’s submissions at paragraph 29.
It may be, as the learned member found, that there is a significant overlap between the footprint of the original dwelling and the footprint of the repositioned dwelling however as the learned member also found, and as Dr Radford agrees, the view from the dwelling when Dr Radford took possession of the land can now only be enjoyed from quite specific points in the repositioned dwelling, specifically a person looking from a standing position on the rear stairs, or lying down on the current deck, or standing on a chair on the lower level.
Dr Radford relied upon a series of photographs taken from the dwelling as evidence of the obstruction of the view caused by the tree.[77] The photographs were taken from various positions from the upper level deck, the lower level veranda, and rooms in the upper and lower levels of the dwelling. Dr Radford also relied upon the photographs of the view contained in the report of Mr Cockram as evidence of the obstruction of the view caused by the tree.[78]
[77]Statement of Kathryn Radford, exhibit 2.
[78]Statement of Kathryn Radford, page 2.
At the hearing below, Dr Radford was referred to a series of seven photographs taken by the representative of Neverfail, Ms Harris, at a view undertaken by the learned member with the parties.[79] Although not absolutely clear from the transcript, the photographs appear to have been taken from points identified at the viewing conducted by the learned member as being the view enjoyed from the original dwelling. The photographs, referring to their individual numbering as part of exhibit 11, are taken variously from:
1. A prone position on the upper deck (photographs 1, 2 and 3);
2. A ground level position (photographs 4 and 5) ;
3. A position 1.6 metres below the upper deck (photograph 6);
4. A position from the rear stairs 1.6 metres below the upper deck (photograph 7).
[79]Exhibit 11.
In rehearing the matter, I do not have regard to the photographs exhibited to Dr Radford’s statement or the photographs contained in the report of Mr Cockram for the reason that they are not photographs of the current view that existed when Dr Radford took possession of the land. They are photographs taken from the substantially renovated and relocated dwelling. These views did not exist when Dr Radford took possession of the property.
I do however have regard to the seven (7) photographs forming exhibit 11. These photographs, the parties agree, depict currently the view that existed when Dr Radford first took possession of the land at the present time.
The exhibit 11 photographs, and particularly 1, 2 and 3, do reveal a significantly different view to that existing at the time Dr Radford took possession of the land. I have found that the view from the rear of the dwelling when Dr Radford first took possession of the land was one encompassing a broad suburban outlook in the foreground leading to a city scape of high rise buildings. I have also found that the marketing photograph depicts the view from the dwelling at the time Dr Radford took possession of the property. There is, in my view, no doubt there has been an obstruction of a view that existed from the dwelling when Dr Radford took possession of the land. The obstruction is largely, if not entirely, caused by the tree the subject of the dispute.
Being satisfied that the tree obstructs the view that existed when Dr Radford took possession of the land, I will turn to the principles in Tenacity Consulting and Laing in considering whether the obstruction of the view is a severe one.
The first step in Tenacity Consulting and Laing requires the view affected to be identified and valued. The affected view is one of the city skyline. Such a view from a dwelling is generally highly valued as adding a degree of amenity over and above similar lots without such a view. A city skyline view might be considered as being valued in the same way a water view or a mountain view might be valued.
The second step requires a consideration of the part of the dwelling from which the views exist and the reasonableness of protecting views from such areas. The views are from the rear of the dwelling, principally from the deck. I will turn to the specific nature of the viewing locations later in these reasons.
The third step requires consideration of the impact of the interference with the view. I am guided by the comments of Roseth SC in Tenacity Consulting that:
(i)t is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.[80]
[80][2015] NSWSC 523.
As I have found, the view that existed when Dr Radford took possession of the land now only exists from various points including lying in a prone position on the rear deck, standing on a chair on the ground level and standing midway up the rear stairs leading from the ground level to the first level. None of these positions could be said to be positions the view from which would be reasonable to protect. Similarly, even though the obstruction of the view from these viewing positions might be said to be severe, the impact of the obstruction could not be called severe given the contrived nature of the viewing positions. Whilst a view from a deck might be highly valued, the same cannot be said of a view from a deck enjoyed from a position lying down on the deck or from a standing position on a chair on the lower level or from a position at the midpoint of the rear stairs.
To illustrate this point, take a dwelling from which, at the time of taking possession, a neighbour enjoys a water view from the kitchen. That view can only be enjoyed however if the neighbour is standing on a ladder in the kitchen. There is no doubt that this is a view from a dwelling at the time the neighbour takes possession of the land. The view subsequently becomes obstructed by a tree. The protection of that view, enjoyed from a very contrived viewing position, could not be considered reasonable and it is difficult to therefore conclude in such a scenario that the obstruction of the view could be considered severe.
For these same reasons, it could not be considered reasonable to protect views from Dr Radford’s dwelling that can only be enjoyed from such contrived positions as were established by the evidence. Indeed, it is difficult to conceive of how much enjoyment of a view might be had at all when it is necessary to lie down on a deck, stand on a chair or stand half way on a flight of stairs in order to enjoy the view. Applying the principles in Laing and Tenacity Consulting I conclude that the obstruction of the view is not a severe one.
c.Substantial, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land
Even if one were to accept that the obstruction of the view caused by the tree is a severe one, the interference as a result of that obstruction with the use and enjoyment of Dr Radford’s land is neither substantial nor unreasonable.
The Tribunal may only make an order under s 66(2)(b)(ii) of the NDA if it is satisfied that, as a result of the severe obstruction of a view, it is necessary to remedy, restrain or prevent a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s property. The use of the conjunctive in s 66(2)(b)(ii) requires all three requirements to be present for interference to be established. The words “substantial”, “ongoing” and “unreasonable” are not defined in the NDA and therefore carry their ordinary meaning.[81] Substantial means “of considerable importance, size, or worth”. Ongoing means “continuing; still in progress”. Unreasonable means “beyond the limits of acceptability or fairness”.[82] Interference, in order to satisfy s 66(2)(b)(ii), must therefore be considerable and beyond the limits of acceptability.
[81]Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463.
[82]Oxford Dictionary.
Somewhat analogous to s 66(2)(b)(ii) of the NDA is s 167(b) of the Body Corporate and Community Titles Act 1997 (Qld) (“the BCCMA”) which provides that a lot owner included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that interferes unreasonably with the use or enjoyment of another lot. Alan Wilson J considered what constitutes an unreasonable interference for the purposes of s 167 of the BCCMA in Norbury v Hogan,[83] where his Honour held:
What is considered unreasonable depends on the prevailing circumstances in each case but the nuisance, these decisions show, needs to be an inconvenience that materially interferes with the ordinary notions of a ‘plain and sober’ person, and not merely the ‘elegant or dainty’ habits of the complainant.
…
The nuisance must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises.
[83][2010] QCATA 27.
The common law requirements for establishing nuisance are a substantial and unreasonable interference with the use and enjoyment of land.[84] The test is an objective one.[85] Section 167(b) of the BCCMA does not include any requirement for interference to be substantial. The interference dealt with by s 167(b) of the BCCMA is something less than would satisfy the test for nuisance. Nuisance is dealt with by s 167(a) of the BCCMA.
[84]Oldham v Lawson (No 1) (1976) VR 654.
[85]Norbury v Hogan [2010] QCATA 27.
In the context of nuisance and unreasonable interference, it was observed in Marsh v Baxter:
In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference, the social or public interest value in the defendant's activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered. [86]
[86][2015] WASCA 169 citing Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79.
A number of the factors identified in Marsh are relevant in considering whether an interference is a substantial, ongoing and unreasonable one for the purposes of s 66(2)(b)(ii) of the NDA:
1. What is the nature and extent of the harm or interference said to be caused by the tree?
2. Is the neighbour abnormally sensitive to the harm or interference said to be caused by the tree?
3. Have all reasonable steps been taken by the tree keeper to minimise the harm or interference said to be caused by the tree?
4. What is the type and extent of damage claimed to have been suffered by the neighbour?
Whether interference caused by a tree is substantial, ongoing and unreasonable will, depending upon the facts of the particular case, require an objective consideration of some or all of these, and other relevant, factors.
Section 66 of the NDA refers to “serious injury”, “serious damage”, “substantial, ongoing and unreasonable interference”, “severe obstruction of sunlight” and “severe obstruction of a view”. The use by the legislature of the language found in s 66 is deliberate. In Mahoney v Corrin[87] Alan Wilson J in giving consideration to the meaning of ‘severe obstruction’ made reference to the second reading speech of the Neighbourhood Disputes Resolution Bill 2010:
The severity threshold requires that the view must be nearly blocked out.[88]
[87][2013] QCAT 318.
[88]Hansard, 2 August 2011, at 2309.
A neighbour seeking to establish interference caused by severe obstruction of a view for the purposes of s 66(2)(b)(ii) of the NDA must successfully pass through two gateways. First, the neighbour must establish a severe obstruction of a view in accordance with the principles in Tenacity Consulting and Laing. If an obstruction of a view can be proved of such severity that it is an interference with the use and enjoyment of the neighbour’s land, the neighbour must then pass through the second gateway by establishing that the interference is a substantial, ongoing and unreasonable one.
The Tribunal is only empowered to make orders in relation to trees causing an obstruction of a neighbour’s view in the most severe of cases. The present view enjoyed from Dr Radford’s dwelling of the view that existed when Dr Radford took possession of the land can only be enjoyed from viewing positions which I have described as contrived. There is no evidence to suggest that these viewing positions are favoured or otherwise enjoyed by Dr Radford at all.
For there to be a finding that the obstruction of the view caused by the tree is causing interference with the use and enjoyment of Dr Radford’s land requires evidence that the identified viewing positions are used and enjoyed by Dr Radford such that the interference with the views from those positions is substantial, ongoing and unreasonable in the sense of being considerable and beyond the limits of acceptability. There is no such evidence. Accordingly, even if the obstruction of the view caused by the tree is severe, the obstruction is not, when considered objectively, a significant, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land.
Conclusion and orders
Dr Radford has failed to establish that the obstruction of the view as a result of the tree is a severe obstruction that interferes with the use and enjoyment of her land in a substantial, ongoing and unreasonable way. The application for a tree dispute must be dismissed.
Orders:
1. Leave to appeal is granted;
2. The appeal is allowed;
3. The decision of the Tribunal dated 31 August 2015 is set aside;
4. The Application for a tree dispute is dismissed;
5. The parties must file in the Tribunal and exchange any submissions in relation to the costs of the proceeding below and the appeal within twenty-eight (28) days.
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