Panayotov v Rashleigh
[2023] QCAT 508
•18 December 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Panayotov v Rashleigh [2023] QCAT 508
PARTIES:
MICHAEL VASIL PANAYOTOV
JODI THERESE PANAYOTOV(applicants)
v
LYNETTE SANDRA RASHLEIGH (respondent)
APPLICATION NO/S:
NDR210-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
18 December 2023
HEARING DATE:
25 October 2023
HEARD AT:
Brisbane
DECISION OF:
Member Bertelsen
ORDERS:
The Application is dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – view – whether trees on the tree-keepers property obscure a view from the neighbour’s property – whether view existed when the property was purchased by the neighbour – whether severe obstruction of the view – where neighbour wants trees trimmed or removed to restore view.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 67, s 78
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
By application for a tree dispute filed 11 December 2020, Michael Vasil Panayotov (and latterly Jodi Therese Panayotov) (‘the Panayotovs’) the owners of the property 13 M Street since 2004, sought restoration of what they say were the benefit of city views which they enjoyed when they first occupied their home in 2004. They stated trees at 14 M Street over the road owned by Lynette Sandra Rashleigh (‘Ms Rashleigh’) as tree-keeper had grown to block those views, constituting severe obstruction, and accordingly they were seeking orders for tree pruning or removal at Ms Rashleigh’s expense. They relied on section 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Legislation’) entitling continuity of views that existed when they took possession in 2004.
Earlier on during the progression of this application the Tribunal determined that the Panayotovs’ Lot 11 at 13 M Street and Ms Rashleigh’s Lots 46 and 47 at 14 M Street were two adjoining parcels of land for the purposes of the NDR Legislation. That was despite them being on opposite sides of the road, and but for the existence of such road, the respective lots joined at their corners rather than along traditional alignments.
In addition, pursuant to the Tribunal direction of 6 February 2023, the Panayotovs and Ms Rashleigh agreed that a clump of eight Alexandra palms on Ms Rashleigh’s land are the trees the subject of the application for tree dispute.
The issue to be determined therefore appears to be whether those palms at their present height constitute severe obstruction of the Panayotovs’ 2004 views. The palms are located at Lot 46, 14 M Street, and according to Ms Rashleigh are close to the southern side of her house.
The Panayotovs produced with their initiating application two photographs which they said depicted obstruction of city views, stating that although such obstruction had been ongoing for at least six or seven years it was only presently being addressed.
In material filed in the Tribunal Ms Rashleigh stated at the time of the Panayotovs’ purchase in November 2004 there were two large silky oak trees in the front of 14 M Street, situated on the southern side of the house, and a Jacaranda and Poinciana tree both planted on the footpath in front of 14 M Street. She asserted these trees would have completely blocked any city views. She said in 2014 and 2016 those trees were removed, substantially improving the Panayotovs’ views across the top of the house at 14 M Street compared to any 2004 views. A number of photos were produced to the Tribunal as follows.
(a)Two photographs circa 1987, subsequent to Ms Rashleigh’s purchase of 14 M Street in 1986, depicting two well established silky oaks at 14 M Street well above the 14 M Street house roof.[1]
(b)Photo of the front of 14 M Street circa 1994, some ten years prior to the Panayotovs’ occupation of 13 M Street, depicting two silky oaks, and prior to the Jacaranda and Poinciana trees being planted on the front footpath. The two silky oaks at that time appear some two to three times higher than the 14 M Street roofline.[2]
(c)Google Earth Pro satellite imagery dated 22 October 2003, depicting two silky oaks at 14 M Street and Jacaranda and Poinciana trees on the front footpath.[3]
(d)Queensland Globe historical imagery taken between April – June 2004, showing foliage from the two silky oaks and a Jacaranda in front of 14 M Street with foliage assertedly higher than the 14 M Street roofline and blocking the Panayotovs’ view across 14 M Street.[4]
(e)Google Earth Pro satellite imagery dated 5 September 2004 depicting the extent of vegetation in 13 M Street’s line of vision.[5]
(f)Queensland Globe past imagery taken 31 May 2005 through to 24 June 2005, showing the shadow cast by the Jacaranda outside 14 M Street to be longer than that cast by the power pole in front of 13 M Street.[6]
(g)Google Earth Pro satellite imagery dated 16 April 2007 emphasising the extent of vegetation in 13 M Street’s line of vision.[7]
(h)Stitched-together photographs (into one photograph) from realestate.com circa 2007, taken from 15 M Street with 13 M Street on the left of the panoramic photo, indicating the height of the power pole in front of 13 M Street and the height of the Jacaranda removed 2013 (2014) and the two silky oaks removed 2016. The photograph assertedly clearly indicates that as of 2007 it was not possible to see over foliage at 14 M Street, that is, over the two silky oaks and the Jacaranda.[8]
(i)Historical Google Street view (four images together) from December 2007, November 2009, November 2013 (after Jacaranda removal) and August 2019 (after two silky oak removals) showing progressive removal of foliage from the front of 14 M Street, providing the Panayotovs with better views than were available in 2004.[9]
(j)A repeat of a photograph taken from the Panayotovs’ initiating application in about December 2020 depicting the Panayotovs’ view at that time. There is a power pole in the foreground, as well as a silky oak on a neighbouring property, considerably higher than the clump of Alexandra palms in the same direct line of vision towards the city in relation to 14 M Street.[10]
[1]Respondent’s statement of evidence, Image 1.
[2]Ibid, Image 2.
[3]Ibid, Image 3.
[4]Ibid, Image 4.
[5]Response filed 18 January 2021 Figure 13.
[6]Respondent’s statement of evidence, Image 5.
[7]Ibid, Image 8.
[8]Ibid, Image 9.
[9]Ibid, Image 10 (four collated images).
[10]Ibid, Image 15.
The arborist’s report by Tree Assessor Michael Sowden dated 3 July 2022 stated, "the applicants at the time of my assessment identified the vegetation southeast of their dwelling that they claim obstructs their view.”[11] Following this he stated:
The applicants at the time of my assessment identified an area of vegetation that contained multiple Alexandra Palms, two large Silky Oaks and a densely canopied Cheese Tree.[12]
[11]Arborist’s report para 4.5.
[12]Ibid, para 4.6.
That was followed by the statement:
In my opinion only the eight palms that form the clump of Alexandra Palms subject to this application that are growing directly adjacent to the south-eastern corner of the tree-keepers dwelling at the time of my assessment could only be considered as causing a partial obstruction to the potential view from the sections of the applicants dwelling that existed prior to the renovations in 2017.[13]
[13]Ibid, para 4.10.
He went on to say:
Given the available images it is inconclusive that the applicants had an unobstructed view from the sections of the applicants dwelling that existed prior to the renovations in 2017 along the alignment that they indicated during my site assessment when they took possession of their land in 2004 given that multiple large slow growing trees existed along this alignment in 2009 that have subsequently been removed.[14]
[14]Ibid, para 4.11.
Conclusions
There is no evidence, particularly photographic evidence, of what the Panayotovs’ city views were as of 2004, only an assertion that they enjoyed city views at that time. A photo chronology was produced by Ms Rashleigh confirming two well established Silky Oaks above the roofline at 14 M Street in 1987 and 1994. A 2003 image was provided of two silky oaks and the jacaranda and poinciana trees planted on the front footpath of 14 M Street. Then 2004 and 2005 images were provided showing foliage from those trees above the 14 M Street roofline, followed by a 2007 image depicting the extent of vegetation. This was followed by an estate agent’s wide view image from 2007 depicting the view-blocking effect of the two silky oaks and jacaranda. There was also produced a historical view-line from December 2007 to August 2019 depicting foliage depletion in that period. The photo chronology indicates view blocking foliage depletion, rather than an increase in foliage such as to obstruct city views.
The Panayotovs, in their initiating application, state views were obstructed for at least the last six or seven years, but the photo chronology would suggest foliage assertedly interfering with views was at about minimum at about that time in 2013/2014 when the jacaranda and poinciana were removed, and even more minimised in 2016 when the two silky oaks were removed in that year. The removal of that blocking vegetation effectively revealed, exposed, and placed in view the eight Alexandra palms, a much smaller impediment to any view, as the only view-limiting vegetation. In other words, the Panayotovs’ city views were substantially enhanced over anything existing previously.
Even if it was to be construed as not to be the case, Mr Sowden’s report stated it was inconclusive whether there were city views in 2004. Even if that was the case, he concluded the eight Alexandra palms could only be considered as causing a partial obstruction of potential view from the sections of the applicants’ dwelling that existed prior to the renovations in 2017. The legislation is clear. A severe obstruction to the view must have existed at the time when the Panayotovs took possession of their land in 2004. Here the palms are a relatively minimal obstruction component to otherwise generally foliage-impaired city views.
Taking the above evidence and factors into account, the Tribunal finds that severe obstruction of asserted existing views has not been substantiated, and not proved on the balance. Rather, the evidence of the lack of any such view is compelling.
Orders
The Application is dismissed.
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