Purcell v Challenor
[2020] QCAT 372
•8 September 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Purcell v Challenor & Anor [2020] QCAT 372
PARTIES: ADRIAN JOHN PURCELL (applicant)
v
SHANA RICKELLE CHALLENOR
MATHEW SCOTT MORAN
(respondents)
APPLICATION NO/S:
NDR246-18
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
8 September 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Adjudicator Stroud
ORDERS:
The Respondents are to cut back the bamboo branches that overhang into the Applicant’s property to the common boundary line.
CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether the neighbour made a reasonable effort to reach agreement with the tree-keeper to give rise to a power to make an order – whether bamboo caused serious damage to the neighbour’s land or property or is likely to cause serious injury – whether the bamboo causes substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land – loss of view – whether view existed at the time the neighbour purchased the property – whether severe obstruction of view caused by bamboo – whether bamboo causing obstruction of sunlight and breezes to the neighbour’s land.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42, s 45, s 46, s 47, s 48, s 49, s 62, s 65,
s 66.Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Background
Since 2013, the Applicant has been and is the registered owner of land in the suburb of Holland Park in Brisbane. The Respondents are the registered owners of land which was purchased in March 2015. The Applicant’s land sits higher than the Respondents’ land with which it shares a rear common boundary. At the time of purchase, the Applicant’s land had established trees and vegetation which provided a level of privacy between the two properties. In mid to late 2015, the Applicant removed a large number of trees and vegetation on his property, along with the original balcony to his residence. This, according to the Respondents, resulted in a lack of privacy as the Applicant now had full view into their back yard where their young children played regularly. Conversely, the Respondents now had full view of the Applicant’s property and in particular, the area from which the Applicant operated a business which included the regular coming and goings of workers. The Respondents claim that after the removal of the vegetation by the Applicant, the Applicant’s property remained in a state of disrepair for approximately two years.
To obtain a level of privacy, the Respondents planted bamboo approximately 0.2 metres from the rear boundary fence. The bamboo has now grown to between six to eight metres in height and some of the branches extend approximately 1.7 metres into the Applicant’s property.
Also situated on the Respondents’ land is a mature mango tree located approximately 3.5 metres north of the property boundary. The tree has grown to around 12 metres in height and 10 metres in width. The tree was on the Respondents’ property at the time of purchase by the Applicant.
Complaint
The Applicant’s complaint is that:
(a)the bamboo which overhangs the boundary is likely to cause serious damage or injury in the next 12 months as a large branch has previously snapped in high winds and fallen into their yard. Further, that during windy weather small branches have slapped their toddler in the face whilst playing on their balcony;
(b)the bamboo has caused serious damage to the applicant’s property due to excessive debris and is blocking sunlight to a large section of lawn making it impossible to grow any lawn;
(c)the bamboo has caused substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of his land as he has lost his view from the entertainment area in the yard and it has obstructed views from within the house, eliminated natural light from the garage and preventing the summer breeze from coming through the back yard;
(d)the mango tree also deposits debris and shadows the Applicant’s property.
Orders Sought
The Applicant seeks an order that the bamboo be cut down to a manageable height of two metres (no more than 2.4 metres) from ground level and maintained to that height at all times unless it is removed completely.
Tree Disputes – the statutory and legislative framework
Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act) confers jurisdiction on the Tribunal to decide this dispute. The ND Act applies to trees situated on land recorded in the freehold land register.[1] A ‘tree’ is defined and includes any plant resembling a tree in form and size such as bamboo.[2] A ‘tree-keeper’ includes the registered owner of the land on which the tree is situated.[3] A neighbour includes a registered owner of land affected by the tree.[4]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a).
[2]Ibid, s 45(1)(b).
[3]Ibid, s 48(1)(a).
[4]Ibid, s 49(1)(a)(i).
Land adjoining the land on which the tree is situated is ‘affected by a tree’ at a particular time if branches from the tree overhang the land;[5] the tree has caused or is causing, or is likely within the next 12 months to cause serious injury to a person, serious damage to the land or property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[6]
[5]Ibid, s 46(a)(i).
[6]Ibid, s 46(a)(ii).
A tree is ‘situated’ on land if the base of the tree trunk is, or was previously, situated wholly or mainly on the land.[7]
[7]Ibid, s 47(1).
The ‘responsibilities of a tree-keeper’ include cutting and removing any branches of the tree that overhang a neighbour’s land,[8] and ensuring that the tree does not cause serious damage or injury to a person, a person’s land or property on a person’s land, or cause substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.[9]
[8]Ibid, s 52(1).
[9]Ibid, s 52(2).
A neighbour may apply to the Tribunal for an order in relation to a tree[10] and the Tribunal may make the orders it considers appropriate to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the neighbour’s land or property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[11]
[10]Ibid, s 62(1).
[11]Ibid, s 66(2).
The obstruction of a view is not interference unless the tree rises at least 2.5m above the ground[12] and the obstruction is a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land or a severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.[13]
[12]Ibid, s 66(3)(a).
[13]Ibid, s 66(3)(b).
Before the Tribunal may make an order about a tree, the Tribunal needs to be satisfied certain requirements have been met; this includes that the neighbour has made a reasonable effort to reach agreement with the tree-keeper and that the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process.[14]
[14]Ibid, s 65(a) and (b).
Have the requirements before making an order been met?
The material filed by the Applicant in the proceedings is brief and consists of the Application for a tree dispute,[15] title search of the Applicant’s and Respondents’ properties and 24 photographs some of which contain brief typed commentary. I note that the photos appear to have been filed as the Applicant’s submissions in the proceeding.[16]
[15]Filed 30 November 2018.
[16]Pursuant to the directions of the Tribunal dated 10 December 2019 requiring the Applicant to file his statements of evidence by 3 February 2020.
This is in contrast with the more detailed material filed by the Respondents consisting of a Response to the Application attaching nine pages of details of response and 16 exhibits[17] and a statement of evidence.[18]
[17]Filed 8 January 2019.
[18]Filed 24 February 2020.
The Application for a tree dispute contains specific provision in relation to the requirements that need to have been met under the ND Act in order for an order to be made. In the Application to the question ‘Have you tried to resolve the dispute’ the Applicant states:
Ask (sic) respondent if we can do something about this bamboo? To be told ‘its (sic) my property and I can do what I like on my own property, I work closely with the Council (Brisbane City) and there is nothing they will do.[19]
[19]Refer question 5 in the Application for a tree dispute filed 30 November 2018.
To the following question as to whether the Applicant tried to resolve the dispute under a local law, or local government scheme or administrative process, the Applicant responded, “Called the council, to be told its (sic) a QCAT issue”.[20]
[20]Refer question 6 in the Application for a tree dispute filed 30 November 2018.
The Respondents disagree with the Applicant’s comments regarding resolution and state that they believed the matter had been resolved following a conversation with the Applicant in April 2018. The Respondents, in summary, assert that they were approached by the Applicant in April 2018 requesting they cut the bamboo trees along the fence line to a height of 2.5 metres. Initially it appears that the Respondents refused the Applicant’s request; however, the following day they approached the Applicant and advised him that they would maintain the bamboo located in the front of his dwelling near his kitchen and the balcony, to a height below his kitchen window and balcony balustrade. The Respondents assert that this was actioned immediately, and they also advised the Applicant that they would be thinning the bamboo located in the area adjoining his yard at the start of the growth season.[21] The Respondents have included as part of their evidence photographs of the bamboo before and after the April 2018 conversation.[22]
[21]Refer page 1 and 2 of the Respondents’ response filed 8 January 2018.
[22]Refer exhibits 1,2,3 and 8 to the Respondents’ response filed 8 January 2018.
If this was the only interaction between the parties, I would agree that the Applicant had not taken all reasonable steps to resolve the dispute prior to filing the Application. However, following the conversation in April 2018 it appears that the relationship between the parties dramatically declined. Complaints were made to the Brisbane City Council by the Applicant and while the Respondents were away on holidays in November 2018 the Respondents allege that the Applicant intentionally damaged the Respondents’ bamboo. This damage resulted in a heated discussion between the parties, which according to the Respondents dissolved into the Applicant threatening physical violence against the Respondents and the Respondents making a complaint to the police.[23] It seems that following this incident the Applicant filed his Application in the Tribunal.
[23]Refer page 2 of to the Respondents’ response filed 8 January 2018.
The legislative requirement is that the neighbour has made a ‘reasonable’ effort to reach agreement with the tree keeper. There is no definition of reasonable in the ND Act. What is reasonable therefore needs to be determined on the individual circumstances of the matter and is a question of fact. Where the relationship between the parties has irrevocably broken down (as appears to be the case here) there is unlikely to be any meaningful communication that could have been entered into between the parties prior to filing the application that would have resulted in a resolution of the dispute. As such, the lack of further communication between the parties subsequent to November 2018 was not unreasonable given the decline in the relationship between the parties. I therefore find in all the circumstances that the Applicant has met the legislative requirements.
Does the Bamboo cause serious damage or injury to the Applicant’s property or property on the Applicant’s land and/or is likely to cause serious injury to any person?
The Applicant claims that the bamboo has caused serious damage to his land in that it is:
Slowly getting more excessive but has been building up in the last 18 months. Excessive debris (approx. 15-20 cm deep) and blocking sunlight in a large section (30 Metres (sic) long x 3 metres deep) of our yard making it impossible to grow any lawn.[24]
[24]Refer question 13 of the Application for a tree dispute filed 30 November 2018.
The Applicant claims that the bamboo branches overhang onto his property in excess of two metres and are in excess of five metres above the ground. He claims that the bamboo is likely to cause serious injury to a person within the next 12 months as:
A large branch (approx. 10cm dia (sic) x 6 metres high) has snapped in high winds and fallen into our yard. During windy weather small branches have slapped our toddler in the face whilst playing on our balcony.[25]
[25]Refer question 11 of the Application for a tree dispute filed 30 November 2018.
The Applicant has provided a number of photographs which depict the bamboo overhanging into the Applicant’s property.
The Respondents disagree that the bamboo overhangs in excess of two metres and claim that upon becoming aware that there may have been some lesser overhanging culms they rectified the issue by removing them.[26] They deny that the bamboo is causing excessive debris and infer that it is a result of the Applicant not maintaining his property since March/April 2018.[27]
[26]Refer paragraph 8 page 3 of the Respondents’ Response to the Application filed 8 January 2020.
[27]Refer paragraph 15 page 4 of the Respondents’ Response to the Application filed 8 January 2020.
In relation to the large branch falling into the Applicant’s yard, and small branches slapping the Applicant’s child in the face, they state that no mention of this having occurred has been raised by the Applicant previously.[28]
[28]Refer paragraph 11 page 3 of the Respondents’ Response to the Application filed 8 January 2020.
As is often the case with tree disputes, on direction by the Tribunal an arborist was appointed to assess and carry out an inspection of the tree(s) and provide a report to the Tribunal on the issues raised in the Application. On 17 September 2019, Mr Benjamin Inman attended the parties’ properties and subsequently provided a Tree Assessment Report[29] (the Tree Report).
[29]Tree Assessment Report of Benjamin Inman dated 17 September 2019.
At the time of the inspection Mr Inman identified various clumping bamboo species growing along the boundary with a 200mm gap between the retaining wall and boundary fence. The bamboo was between six to eight metres in height and three to five metres in width. He determined the bamboo to be in good health and structure, and tree significance to be desirable.[30]
[30]Refer page 8 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
He found that the Applicant’s land was affected by the bamboo as the bamboo branches extended approximately 1.7 metres into the Applicant’s property. He found no visible defect to suggest that the bamboo would cause damage or injury to the Applicant’s property or cause injury to a person within the next 12 months.
In relation to tree debris he found that debris does fall into the Applicant’s property but is not causing any significant damage to occur and there was no visual evidence of physical damage occurring to the Applicant’s property as a result of the debris. He was of the opinion that tree debris which falls into the Applicant’s property could be easily cleaned during property maintenance duties.[31]
[31]Refer page 10 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
In relation to the overhanging branches, I find on the evidence of both the Applicant and Mr Inman that the bamboo branches overhang into the Applicant’s property in excess of 1.5 metres.
In relation to whether the bamboo is causing excessive debris I note that none of the photographs submitted by the Applicant evidences this to be the case. As such I prefer and accept the findings of Mr Inman, that whilst debris does fall into the Applicant’s property it is not excessive and is not causing any significant damage to occur.
There is also no evidence to support the Applicant’s claims that the bamboo is likely to cause injury to a person and again I prefer the evidence and findings of Mr Inman that this is not the case.
I therefore find that the Bamboo does not cause serious damage or injury to the Applicant’s property or property on the Applicant’s land and/or is likely to cause serious injury to any person.
Does the bamboo cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land?
The Applicant claims:
We have lost our view from both, our entertainment area in the yard, has obstructed the view from within the house (the very reason we purchased the house). We have lost hours of sunlight in the back yard, all natural light in the garage has been eliminated. We no longer get the summer breeze coming thru our back yard. It is likely a 15 metre high wall has been erected along our boundary line.[32]
…
We purchased this home because of the view which over the last 18mths has all but disappeared. It has taken away our breeze, any natural light in our garage, and taken hours of sunlight away from our property. The bamboo has grown to heights above our house and this shadows over us.[33]
[32]Refer question 24 of the Application for a tree dispute filed 30 November 2018.
[33]Refer question 30 of the Application for a tree dispute filed 30 November 2018.
The Applicant claims that the mango tree in the Respondents’ yard has also contributed to this interference as it:
…throws debris and shadows our property, however we accept this tree already existed when the house was purchased the debris and shadow is contained to one area and not the entire boundary line and does not come into our house.[34]
[34] Refer question 25 of the Application for a tree dispute filed 30 November 2018.
The Applicant has submitted a number of photographs in support of his claim that prior to the planting of the bamboo the Applicant had a view of Mt Coot-tha through to Wellers Hill from the back deck. There is also a photograph from an undescribed window in the Applicant’s property where a view of the mountain range can be seen.
The Respondents claim that at the time of purchase by the Applicant of the property in 2014 the view claimed by the Applicant did not exist due to the existing trees and vegetation on the Applicant’s property and that the view at the time of purchase was of trees. A number of photographs are submitted to support this. These trees and vegetation were removed by the Applicant in 2015. The Respondents also assert that currently the view from the Applicant’s kitchen window is partially obscured by trees on other properties apart from the Respondents’.[35]
[35]Refer Respondents’ statement of evidence filed 24 February 2020.
The Respondents’ material also includes a photograph which they state is a current photograph from the Applicant’s back deck which they claim shows that Mt Coot-tha cannot be viewed due to trees on other properties.[36]
[36]Refer Respondents’ Response to application for a tree dispute filed 6 January 2020.
In relation to the Applicant’s claim of loss of sunlight and breezes, the Respondents assert that the images provided in their material show that any shadowing to the Applicant’s property does not relate to the bamboo but rather the Applicant’s own house, structures and the trajectory of the sun. They include photographs of the Applicant’s shade structures as well as a large tree currently situated on the Applicant’s property. In relation to the loss of breezes the Respondents assert that:
breezes come from either the south east (summer) or South West (in winter), which neither is impeded by the bamboo which is located on the north/western side of the applicant’s property.[37]
[37]Refer Respondents’ Response to application for a tree dispute filed 6 January 2020.
The Applicant’s material also includes photographs taken from different time periods throughout the day showing the level of sunlight hitting the Applicant’s property.[38]
[38]Refer page 9 of the Respondents’ statement of evidence filed 24 February 2020 and Respondents’ Response to application for a tree dispute filed 6 January 2020.
Mr Inman’s opinion, as set out in the Tree Report, is that aerial imagery layers from Nearmap from over 10 years ago show that the Applicant had an extensive amount of vegetation obstructing the view to Mt Coot-tha, and that it was possible that the Applicant did not have an existing view at the time of purchase. It was only after the Applicant removed the vegetation on his property that it provided the Applicant with a view.[39]
[39]Refer page 13 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
I note that the Applicant, despite being in receipt of the Tree Report, has made no submissions disputing the findings of Mr Inman that the Applicant at the time of purchase did not have an existing view.
Mr Inman also found that the location of the existing trees on the Applicant’s property and the Respondents’ mature mango tree have now impeded this view. Again, the Applicant has not made any submissions disputing Mr Inman’s finding.
That is not to say that the bamboo has not or will not have an impact on the Applicant’s view. Mr Inman determined that at present there is a view of Mt Coot-tha that can be viewed from the lounge room, kitchen and outdoor deck area. At the time of the Tree Report the view was partially obstructed as the Respondents had reduced some of the bamboo located directly in front of the kitchen and outdoor deck area. However, if the bamboo was allowed to grow to full height then the view would be fully obstructed with the next 12 months.[40]
[40]Refer page 12 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
In relation to the view, I prefer the evidence of the Respondents and Mr Inman, which I note is consistent. This being that at the time of purchase by the Applicant of his property there was no existing view or if there was a view that it was substantially obstructed. It was only after the Applicant removed trees and vegetation on his property in late 2015 that the Applicant obtained a view. Unfortunately, this also had the effect of removing what had been a natural privacy screen between the two properties. This resulted in the Respondents planting bamboo in an attempt to obtain a level of privacy.
The bamboo has now grown to a height where it is contributing to the obstruction of the Applicant’s view. I say ‘contributing’ as I also find on the evidence of the Respondent and Mr Inman that there are other obstructions including the Respondents’ mango tree, vegetation on the Applicant’s property and trees situated on surrounding properties.
In relation to the bamboo obstructing sunlight to the Applicant’s back yard, as determined by Mr Inman the bamboo trees are located two metres north west from the Applicant’s house, the sunlight travels from east to west diagonally across both properties.[41] The photographs taken by the Respondents at various times throughout the day indicate a normal level of natural sunlight to the Applicant’s property.[42] As such, I am not satisfied that the bamboo is obstructing sunlight to the Applicant’s property as claimed by the Applicant. In any event, the ND Act only addresses the overshadowing of buildings not backyards and therefore does not apply here.
[41]Refer page 11 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
[42]Refer page 9 of the Respondents’ statement of evidence filed 24 February 2020 and Respondents’ Response to application for a tree dispute filed 6 January 2020.
With respect to the claim of loss of breeze, there is insufficient evidence provided by the Applicant to support that this has occurred or is occurring and if so, whether it is caused by the Respondents’ bamboo, noting the substantial foliage that exists around the Applicant’s property. Furthermore, there is no provision in the ND Act that addresses this issue.
Obstruction of partial view
There is no general right to a view. The ND Act creates a limited exception to this principle. The ND Act applies to interference that is an obstruction of a view, only if 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[43]. My emphasis added.
[43]ND Act, s 66(3)(ii).
In Laing & Anor v Kokkinos & Anor (No 2),[44] Alan Wilson J, adopting principles enunciated in Tenacity Consulting Pty Ltd v Warringah Council[45] identified a 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 from and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sitting 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.
[44][2013] QCATA 247, as quoted in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 and approved in Bowyer & Anor v Ortlipp & Anor [2019] QCATA 111.
[45][2004] NSWLEC 140 and cited in Neverfail, [37].
In Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford[46]the Appeal Tribunal said at [38]:
[38] 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.
[39] It is uncontroversial for the purposes of applying and interpreting the [Act] 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.
[46][2016] QCATA 203.
As I have determined in the preceding paragraphs, I am of the opinion based on the evidence of Mr Inman and the Respondents that at the time of purchase of the Applicant’s property, there was little to no view of the mountain range. The view of the mountain range was only obtained in late 2015 (after the Respondents purchased their property) when the Applicant removed the trees and vegetation on his land. In the circumstances, the Applicant’s rights with respect to a view do not fall within the limited exceptions contained in the ND Act as it did not exist at the time of purchase by the Applicant of the property.
Whilst I make this finding in relation to the view, as previously enunciated, I have found that the bamboo branches overhang into the Applicant’s property in excess of 1.5 metres and are required to be cut back to the boundary line.
Whilst not an order of the Tribunal, it is recommended that the Respondents adopt the recommendations contained in the Tree Report that:
(a)The mango tree be pruned back toward the boundary of the property and maintained yearly;
(b)the bamboo located in front of the Applicant’s dwelling be reduced to four metres in height so that a view toward the mountain range is provided.[47]
[47]Refer page 15 of the Tree Assessment Report of Benjamin Inman dated 17 September 2019.
Orders
The orders are as follows:
1. The Respondents are to cut back the bamboo branches that overhang into the Applicant’s property to the common boundary line.
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