Rice v Livingstone
[2014] QCAT 345
| CITATION: | Rice v Livingstone [2014] QCAT 345 |
| PARTIES: | Michael Rice and Helen Rice (Applicant) |
| v | |
| Albert Thomas Livingstone and Betty Livingstone (Respondent) |
| APPLICATION NUMBER: | NDR058-13 |
| PARTIES: | Elizabeth Peek (Applicant) |
| v | |
| Albert Thomas Livingstone and Betty Livingstone (Respondent) |
| APPLICATION NUMBER: | NDR059-13 |
| PARTIES: | Robert and Anne Grant (Applicant) |
| v | |
| Albert Thomas Livingstone and Betty Livingstone (Respondent) |
| APPLICATION NUMBER: | NDR060-13 |
| PARTIES: | Dieter and Christiane Klein (Applicant) |
| v | |
| Albert Thomas Livingstone and Betty Livingstone (Respondent) |
| APPLICATION NUMBER: | NDR061-13 |
| PARTIES: | Ronald and Mariette Gove (Applicant) |
| v | |
| Albert Thomas Livingstone and Betty Livingstone (Respondent) |
| APPLICATION NUMBER: | NDR062-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATES: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Cotterell |
| DELIVERED ON: | 15 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Livingstones shall: a. have the Bauhinia located one metre from the Rice’s boundary trimmed to 2.5m above the ground. b. have the 3 camphor laurels numbered 4, 7 and 8 on Mr Young’s Table 1 of his report dated 11 October 2013 trimmed to 2.5m above the ground. 2. In view of the above Orders, the Tribunal declines to make an on-going order for height maintenance. 3. The Tribunal dismisses the following Applications: a. Elizabeth Peek (NDR059-13); b. Robert & Anne Grant (NDR060-13); c. Ronald & Mariette Gove (NDR062-13). 4. The Tribunal allows the Application by Laurence and Sylvia Pope to be substituted for that of Dieter and Christiane Klein (NDR061-13) and that the material provided by the Kleins may be used by the Popes as far as it is relevant to their application, which has a possession date of 22 April 2014, but dismisses their application. |
| CATCHWORDS: | TREE DISPUTE – assessing the view at the date applicant took possession – assessing the view involves the totality of the outlook from the dwelling – severity of obstruction then considered – what is unreasonable interference – each tree to be considered – Neighbourhood Disputes Resolution Act 2011 (Qld) ss 42, 45 – 48, 65, 66, 72, 73, 75 Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14 Haindl v Daisch [2011] NSWLEC 1145, followed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
These applications are brought by;
a) Michael Rice and Helen Rice (the Rices) (NDR058-13);
b) Elizabeth Peek (Ms Peek) (NDR059-13);
c) Robert and Anne Grant (the Grants) (NDR060-13);
d) Dieter and Christiane Klein (the Kleins) (NDR061-13);
e) Ronald and Mariette Gove (the Goves) (NDR062-13);
(the Applicants) against Albert Thomas Livingstone and Betty Livingstone (the Livingstones) under the Neighbourhood Disputes Resolution Act 2011 (the Act) which came into effect on 1 November 2011.
Each of the Applicants allege that a tree (or trees) on the Livingstones’ land causes substantial ongoing and unreasonable interference with the use and enjoyment of their land because the tree(s) severely obstructs the view which existed when they took possession of their land.
Therefore, the first thing for the Tribunal to ascertain is the date on which each of the Applicants took possession of their land. This is a simple question of fact.
The Tribunal then needs to ascertain the view that existed when each of the applicants took possession of their land. This creates a problem for the Applicants who must produce evidence that shows what views existed when they took possession of their properties.
Once the views that existed when the Applicants took possession of their land is in evidence, the Tribunal can assess the interference, if any, with the use and enjoyment of their land because the Livingstones’ tree(s) obstruct the view. Then, if the trees interfere, the Tribunal must decide whether they obstruct severely or otherwise before making orders.
From the material filed:
a) the Rices took possession in June 1995;
b) the Goves took possession on 5 February 2006;
c) Ms Peek took possession in March 2007;
d) the Kleins took possession in April 2008 and then sold to Mr and Mrs Pope who took possession on 22 April 2014; and
e) the Grants took possession in November 2011.
The Livingstones provided the Tribunal with the following plan of the relevant properties on Monks Crescent showing their relationship to each other and to the Livingstone’s property. The Tribunal inserted the street numbers on that plan as follows:
a) Grant No 7;
b) Peek No 11;
c) Rice No 13;
d) Klein No 15;
e) Gove No 17;
The Livingstones’ house block is unusual in that it is located on a 8402m2 block of land with 17 neighbours of which 5 are Applicants here. This has resulted in the Livingstones planting trees to the rear of all five of the Applicants’ houses.
THE LAW
For their claim to succeed, the Applicants must show that the trees are a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land therefore bringing the claim within section 46(a)(C) of the Act.
The Applicants say the trees cause substantial ongoing and unreasonable interference with their use and enjoyment of their land because they severely obstruct the view which existed when they took possession of their land.
The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land under section 66 of the Act which states the following:
66 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) …or
(b) to remedy, restrain or prevent—
(i) …
(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 … 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.
The Tribunal is precluded from making any orders in relation to a tree under Chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, on the basis of the material filed in the Tribunal, those issues are uncontroversial and the Tribunal finds that it has the power to make an order under section 66 of the Act.
However, in considering making an order under section 66 the Tribunal must consider section 72 which states the following:
72 Removal or destruction of living tree to be avoided
A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
Here none of the Applicants are seeking the removal trees, although the Applicants’ arborist has suggested that several should be removed but apparently did not seek to get the agreement of the QCAT appointed Tree Assessor to this course of action. This will be discussed later.
The Tribunal must also consider sections 73 and 75 which state the following:
73 General matters to consider
(1) QCAT must consider the following matters—
(a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
(b) whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;
(c) whether the tree has any historical, cultural, social or scientific value;
(d) any contribution the tree makes to the local ecosystem and to biodiversity;
(e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
(f) any contribution the tree makes to public amenity;
(g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h) any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i) any risks associated with the tree in the event of a cyclone or other extreme weather event;
(j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;
(k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
(2) …
(3) For this Act, no financial value or carbon trading value may be placed on a tree.
75 Other matters to consider if unreasonable interference alleged
If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—
(a) anything other than the tree that has contributed, or is contributing, to the interference; and
(b) any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
(c) the size of the neighbour’s land; and
(d) whether the tree existed before the neighbour acquired the land; and
(e) for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.
THE ISSUES FOR DETERMINATION
Before the Tribunal makes an order under section 66 it must determine whether or not sub-section 66(2)(b)(ii) applies and then, because the interference is said to arise from the obstruction of a view, whether or not the obstruction is a severe obstruction of a view, from a dwelling on the neighbour’s land, a view that existed when the neighbours took possession of their land.
What constitutes substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land in relation to a view and what is a severe obstruction of a view?
By s 46 the Tribunal is required to determine if land is affected by a tree at a particular time. It is required to consider the interference at the date of the application and going forward by 12 months because of sub-section 46(a)(ii).
Unfortunately, the Act gives the Tribunal and the parties no assistance in relation to the matter of interference but further complicates the issue by extending the view to that which existed when the neighbour took possession of the land. It further limits the view to that from a dwelling on the neighbour’s land but does not specify where from that dwelling.
Legislation of this nature is relatively recent in Queensland. The Act was modelled, in part, on the New South Wales Trees (Disputes Between Neighbours) Act 2006. Section 14D of the New South Wales Act which provides:
Jurisdiction to make orders
14D Jurisdiction to make orders
(1)The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:
(a)sunlight to a window of a dwelling situated on the applicant’s land, or
(b)any view from a dwelling situated on the applicant’s land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned.
(2)Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following:
(a)require the taking of specified action to remedy the obstruction of sunlight or of a view,
(b)require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view,
(c)require the taking of specified action to maintain a tree or trees at a certain height, width or shape,
(d)require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree,
(e)require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a),
(f)authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view,
(g)authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land),
(h)require the payment of costs associated with carrying out an order under this section.
(3)However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation.
Whilst the decisions of the New South Wales Land and Environment Court, and indeed the decisions of other Members of this Tribunal are not binding on this Tribunal, the Tribunal is satisfied that it should consider them in determining whether interference is substantial and unreasonable and the severity of an obstruction and follow relevant decisions.
For an obstruction of a view to be interference it must be a severe obstruction in accordance with sub-section 66(3)(b)(ii).
In the Land and Environment Court New South Wales matter of Wood v Berg [2011] NSWLEC 1068 the Court had to consider when an obstruction is severe. The Court said:
17 Only if s 14E(2)(a)(ii) is satisfied do we need to consider the balancing inherent in s 14E(2)(b). Therefore we must be satisfied that the trees are causing a severe obstruction of a view from the applicant's dwelling.
18 In this matter we accept that there is some obstruction of the views from the applicant's dwelling, particularly from Deck 2. However, we are not satisfied that the obstruction is 'severe'.
19 The Macquarie Dictionary uses words such as "harsh; harshly extreme; grave; causing discomfort or distress; hard to endure; rigidly exact" to define 'severe'. The Oxford Dictionary includes "austere; strict; harsh; extreme". These words set the test at a high level.
20 In our opinion, for an obstruction to be 'severe', the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.
21 We saw nothing at the site inspection that would enable us to interpret the filtered view through the palms from Deck 2 or Deck 3 as being in any way a severe obstruction of that view.
22 We find that the trees subject to the application do not satisfy s 14E(2)(a)(ii) of the Act and therefore the Court cannot make an order under Part 2A.
In Haindl v Daisch [2011] NSWLEC 1145 the Court considered what was a view and stated:
26However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
The Court went on to say:
28For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction. …
The Court then considered what the NSW Act meant by the word 'severe' and the high bar it sets and said:
64It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view.
In Bagley v Guthrie [2012] NSWLEC 1252 (7 September 2012) the Court followed Haindl and said:
However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the viewfrom a particular viewing location on some incremental, slice by slice basis.
Therefore, under the Act and applying the case law, a view may be obstructed by a tree provided the interference is not substantial, ongoing and unreasonable and the obstruction of the view is not severe. This means that each tree must be examined to determine if and how it interferes with a view.
Therefore, if the totality of the outlook from the various dwellings is to be considered this includes the land and the sky to the south and the east that is visible from each dwelling. Both the natural and the built environment are included in a view and trees constitute part of the natural environment.
THE EVIDENCE
As part of the process of dispute resolution the Tribunal ordered reports from Mr Anthony Cockram, a certified arborist, (Mr Cockram) and he produced reports in relation to each Application which identified and numbered certain trees which are located on the Livingstones’ land.
Unfortunately, the Livingstones were overseas when Mr Cockram conducted his inspection on 15 June 2013. This resulted in him speaking to all five Applicants and the arborist engaged by them, Jeremy Young of Arbor Australis Consulting (Mr Young) but not to the Livingstones.
While the Tribunal understands how this occurred, it is not desirable as it raises perceptions of bias, which arose in this case. It can also impact on the discussions at the Expert Conclave as the absent party may perceive that their views may not have been adequately represented. When this occurs, the Tribunal must ensure that justice occurs and that these undesirable processes do not bias the outcome.
From the Cockram Reports the Tribunal is satisfied of the following:
a) All of the trees in the 5 application meet the definition in section 45 of the Act.
b) The trees are on land described in sections 42(1) and (2) and the exceptions in (3) and (4) do not apply.
c) The Livingstones are the tree keeper as defined in the Act.
d) The trees are definitely situated in the tree keeper's land, s 47.
e) The tree keeper falls within the definitions in s 48.
f) The Applicants and the Livingstones are neighbours under the Act.
Mr Cockram failed to ascertain the date when any of the Applicants took possession of their land. It is not clear whether Mr Young had ascertained this information prior to the joint inspection on 15 June 2013, but he recorded these dates in his reports as follows:
a) Grant – November 2011 - Report dated 11 October 2013;
b) Peek – 1988 - Report dated 18 October 2013 but this should be 2007 according to Ms Peek in her statement;
c) Rice – June 1995 - Report dated 11 October 2013;
d) Klein – January 2008 - Report dated 19 October 2013;
e) Gove – April 2006 - Report dated 11 October 2013. According to the Goves’ statement they purchased it in February 2006 but they do not state when they took possession.
Having failed to ascertain the relevant date for the view, the Tribunal has difficulty accepting the identical statement by Mr Cockram in all 5 of his Reports that:
Given the photographic evidence provided on site, it is my professional opinion that these trees had not grown into an obstructing postion (sic) at the time the dwelling was acquired by the applicant.
The Tribunal also noted that Mr Cockram failed to assist the Tribunal by attaching copies of ‘the photographic evidence provided on site’ to his Reports although he was able to attach other photographs to his Reports, apparently taken by him on the day of his inspection.
According to Mr Young in all 5 of his Reports regardless of the date the relevant Applicant took possession of the land he stated:
a) Grant – ‘At the time of purchase the Applicants had extensive views to the south and east’. (Plate 1)
b) Peek – ‘At the time of purchase the Applicants had panoramic views to the south east’. (Plate 1)
c) Rice – ‘At the time of purchase the Applicants had panoramic views to the south and east’. (Plate 1)
d) Klein – ‘At the time of purchase the Applicants had panoramic views to the south and east’. (Plate 1)
e) Gove – ‘At the time of purchase the Applicants had panoramic views to the east’. (Plate 1)
However, each of the (Plate 1) references was to a photograph with a caption, presumably provided by the Applicant, as follows:
a) Grant – ‘View from deck of 7 Monks Crescent, Buderim, November 2011’.
b) Peek – ‘View from top veranda of 11 Monks Crescent, Buderim, prior to 1999’.
c) Rice – ‘View from deck of 13 Monks Crescent, Buderim, Before 2001’. The photo is said to be ‘taken from inside. Window frame visible on right. Dawson Parade visible in foreground’. Photo supplied by the applicant.
d) Klein – ‘The view as it was February 2007 as seen on the prospectus for the property’.
e) Gove – ‘View from top deck of 17 Monks Crescent, Buderim, prior to 2008. At the time of the photo the primary plants were banana’s (sic)’.
Now matching these photos up with the relevant dates on which each of the Applicants took possession
a) Grant – The photo of the view from deck of 7 Monks Crescent, Buderim, November 2011 matches November 2011 when the Grants took possession and is highly relevant.
b) Peek – The photo of the view from the top veranda of 11 Monks Crescent, Buderim, prior to 1999 is over about 8 years prior to her taking possession and is not at all useful to proving her application.
c) Rice – The photo of the view from deck of 13 Monks Crescent, Buderim, said to be taken from inside before 2001 is over about 6 years prior to them taking possession.
d) Klein – The photo of the view as it was February 2007 as seen on the prospectus for the property is over a year prior to them taking possession.
e) Gove - The photo of the view from top deck of 17 Monks Crescent, Buderim, prior to 2008 is over about 2 years after them taking possession.
THE VIEW THAT EXISTED WHEN EACH OF THE NEIGHBOURS TOOK POSSESSION OF THEIR LAND
The Tribunal needs to determine the view that existed when each of the Applicants took possession of their land in order to determine the extent of any obstruction to that view which the tree(s) has caused, is causing, or is likely within the next 12 months.
The Rices’ view at 13 Monks Crescent
The Rices having taken possession in June 1995, being the first of all of the applicants to do so, theirs was the most appropriate Application with which to commence.
Limited evidence was presented to the Tribunal as to the panoramic view which they claimed existed at that time. The first clearly dated photo of the view was taken ‘before 2001’.
However, the evidence from the Livingstones was that:
a) In about January 1999, the Livingstones gave Mr Revell, the owner of 15 Monks Crescent before the Kleins, permission to remove some lantana in front of that property, but without their permission he also removed 5 trees from this area of the Livingstones’ property. The Livingstones state that the removal of these trees would have enhanced the views of both 13 and 15 Monks Crescent.
b) Just prior to February 2001, persons unknown poisoned two 100 year-old figs trees on the Livingstones’ property located in front of the Rice and Peek dwellings. These trees were subsequently cut down.
The evidence from the Livingstones about the removal and poisoning of these trees (the damage to the trees in 1999/2001) is not disputed and the Tribunal accepts that their removal would have enhanced the views of both 13 and 15 Monks Crescent.
The Rices provided the Tribunal with two enlarged photographs attached to their statement which they say shows the view as at 1995. However, they clearly state that the photograph at page 16 was taken in 2012 from an elevated position to get over the top of the trees. It certainly shows a panoramic view including Currimundi Reef and Moreton Island. Likewise, the photograph at page 17 taken in 2013 features the same ‘House 1 with red roof and solar panel’ in the frame of page 16 and includes Currimundi Reef and Moreton Island.
The evidentiary value of these photographs is limited as to the panoramic view claimed to exist in 1995. The Tribunal does not doubt that there is a panoramic view beyond the trees but its ability to be viewed from the Rices’ dwelling at 1995 is the thing they need to prove.
Therefore, the Rices did not present the Tribunal with any reliable photographic evidence of the Rices’ panoramic view at the date of their taking possession in June 1995 and their photographic evidence of the view in 2001 would have been seriously affected by the removal of these trees which enhanced their view.
However, Ms Peek presented the Tribunal with photographs, said to have been taken from her top veranda in 1995. Photograph 1A looks straight out from her dwelling over the Livingstones’ trees and there is a view of the horizon. However, this was not necessarily the Rices view from next door, which may have been obstructed by trees. Photograph 2A looks out from the Peek dwelling towards the Rices’ dwelling and over the Livingstones’ trees. In this photograph there is a view of the horizon but the trees are also taller in front of the Rices’ dwelling. Ms Peek’s photograph 3A is the one whose date is disputed as 1999/2000 or after 1995. It is difficult to assess the Rices’ view from this photograph because it does not look out from the Rices’ dwelling.
The Tribunal not being provided with any reliable photographic evidence of the Rices’ claimed panoramic view at the date of taking possession in June 1995 and because of the unreliability of the ‘before 2001’ and other photographic evidence, considers that it may need to consider the Rices’ view a reasonable period of time after 2001 when these intervening events could be said to be no longer having a significant impact. However, this may raise further issues.
The Goves’ view at 17 Monks Crescent
The Tribunal then turned to the evidence of the Applicant who took possession after the Rices.
The Goves purchased their property on 5 February 2006 and appear to have taken possession in April 2006. Nothing appears to turn on the actual date and the Tribunal will use April 2006.
Unfortunately, Mr Cockram did not establish the date the Goves took possession and referred to tree growth since 2001. Once again he assumes, without citing evidence, the existence of ‘the previous panoramic view to the east and south-east’.
The Goves produced a photograph of their view taken from the top deck of their dwelling ‘prior to 2008’ and another one of the same view taken from the same deck in April 2013 (Plates 1 and 2 of Mr Young’s Report).
They point out in the captions that the bananas in the first photo have been overtaken by umbrella trees and African tulips in the second photograph. The caption states ‘It is estimated that the overall canopy height is 5-6m higher than in 2008’.
However, the issue is the view and not the height of the canopy. In comparing these two photographs the Tribunal finds that the view that existed in 2008 is substantially the view in 2013 and that the height of the canopy has not obstructed the 2008 view.
The Tribunal also notes the existence of banana trees in the Goves’ 2008 photograph as the Rices said that banana trees were removed from their property shortly after they took possession in 1995. There was no evidence to say that these were the same or different banana trees as the Kleins’ property is between the Goves’ and Rices’ but they do not help the evidence.
They also produced a photograph attached to their statement looking north east said to be taken in 2008. Their caption says ‘We had a clear view of Dixon Rd and the ocean to the right as well as glimpses of the ocean to the left along the horizon which unfortunately is not obvious in this photo’.
The Tribunal notes in this photograph that the Bauhinia (Mr Cockram’s No. 16 and Mr Young’s No. 1) is referred to as ‘relatively small’. The camphor laurels (Mr Cockram’s No. 17 & 18 and Mr Young’s No. 7 & 8) are also referred to as ‘growing just over the horizon line’. The Tribunal will make orders in relation to all of these trees when dealing with the Rice’s application below. The Tribunal also notes in this photograph the Macaranga (Mr Cockram’s No. 19) which is now dead and as such probably should be removed. The Tribunal will refer to this again later.
The Goves’ comparison photograph taken in 2013 unfortunately zooms in on the trees and, therefore distorts their impact. From the caption to this photograph it is clear that the Bauhinia ‘is extremely large and has grown well above the horizon line’ and the camphor laurels ‘have grown significantly’.
In comparing these two photographs looking north east the Tribunal finds that the view of 2008 has not been obstructed by the Livingstones’ trees although the Tribunal accepts that other trees in the distance have obstructed the Goves’ view.
On the basis of all of the photographic evidence including Plates 1 and 2 of Mr Young’s Report which shows that the view of 2008 has not been obstructed by trees as at the date of the application, the Tribunal must dismiss this application and orders accordingly.
Ms Peek’s view at 11 Monks Crescent
Ms Peek according to her evidence, as opposed to that of Mr Young’s, was that she took possession from March 2007. The fact that her parents had owned the property previously is irrelevant under the Act and, therefore, 2007 is the relevant date.
Ms Peek, through Mr Young, provided the Tribunal with photographic evidence of her view ‘Before 1999’.
Attached to her own statement, she identifies the same photo that Mr Young referred to as being taken in 1995 and attaches a second photo (2A) said to be taken in 1995 and a third photo (3A) said to be taken in 1999/2000.
None of Ms Peek’s photographic evidence was of any use to the Tribunal in assessing her application because it was all before she took possession. This illustrates the problem which arises when the date that the applicant took possession is not correctly identified.
The Tribunal also considered the 1999/2000 photograph in relation to the Rices’ view and rejects its usefulness because of the damage to the trees in 1999/2001.
The Tribunal notes the Livingstones’ assertion that this photograph was taken prior to 1989 but finds that it is unnecessary to make a finding in this regard.
Having no reliable evidence upon which to assess Ms Peek’s view when she took possession in 2007 the Tribunal is unable to determine what if any obstruction of the view from her dwelling has occurred since 2007 by the Livingstones’ trees.
The Tribunal notes that there is one tree, a harpullia sp, which according to Mr Cockram is 1.5 metres from the common boundary and 70% of the canopy is overhanging Ms Peek’s fence. Therefore, the processes under part four of the Act are available to her with regard to this tree.
On the basis of the evidence presented to the Tribunal in support of this application the Tribunal finds that it must be dismissed and orders accordingly.
The Kleins’ or Popes’ view at 15 Monks Crescent
The Kleins took possession in April 2008. However, they have sold their property to Laurence and Sylvia Pope (the Popes) who took possession on 22 April 2014. The Popes have applied to the Tribunal to be joined to the proceeding and that the material provided by the Kleins be the basis of their application.
The Tribunal orders that the Popes be joined as applicants in substitution for the Kleins, who are no longer neighbours of the Livingstones and, therefore, no longer eligible to be applicants in this matter.
The Tribunal further orders that the material provided by the Kleins may be used by the Popes as far as it is relevant to their application which has a possession date which started on 22 April 2014.
The Kleins’ statement was prepared in September 2013 and the Popes did not provide any evidence after that date.
On the basis that there is no evidence before the Tribunal that any tree has caused or is causing an obstruction to the Popes’ view since 22 April 2014 or is likely to within the next 12 months the Tribunal determines that the Popes application must be dismissed and orders accordingly.
The Grants’ view at 7 Monks Crescent
The Grants took possession of their property in November 2011 and provided the Tribunal with a photograph of their view looking south from the rear balcony in November 2011 (2.1). They also provided the Tribunal with another photograph of their view looking south from the rear balcony in September 2013 (2.2).
Having compared these two photographs the Tribunal finds that no tree has caused or is causing an obstruction to the Grants’ view to the south or is likely to within the next 12 months.
The Grants also provided the Tribunal with a photograph from the lounge room also said to be looking south in November 2011 (3.1). This photograph shows 2 hills in the distance which do not appear in the previous photographs. They also provided the Tribunal with another photograph of their view looking south from the lounge room in September 2013 (3.2). However, while 3.2 does show an increase in the trees, a close examination shows that the horizon which is fairly faint differs from that in 3.1 and does not feature the 2 hills. The Tribunal agrees with the submissions of the Livingstones that these photographs have distorted the view to exaggerate the influence of the trees so as to make them appear to obstruct the view.
The Tribunal rejects the photographs on pages 16 and 17 of the Grants’ statement as providing proof of the tree growth since November 2011. The presence of the trees is not disputed. These photographs do not provide evidence that any tree has caused or is causing an obstruction to the Grant’s view since November 2011 or is likely to within the next 12 months.
Therefore, the Tribunal determines that the Grants application must be dismissed and orders accordingly.
THE USE OF AN RL LEVEL
All five Applicants have suggested that an RL Level should be used to determine the height of adjustment to the Livingstones’ trees and as a mechanism for ensuring that this height can be maintained without further disputation. It is referred to by them as a ‘defined and measurable pruning level’.
The RL Level of 146 was ascertained from a survey by surveyors Bennett and Bennett to determine levels of all property verandas and then all five Applicants adopted that level as the pruning level sought by them in their applications.
The Tribunal understands the reason for this approach but must reject it as contrary to the Act, which requires each tree to be examined to determine if and how it interferes with a view. Under the Act and applying the case law, a view may be obstructed by a tree provided the interference is not substantial, ongoing and unreasonable and the obstruction of the view is not severe. This requires an evaluation of each tree in relation to the view and not a wholesale pruning of all of the neighbours’ trees as though they constituted a single hedge.
DETERMINING THE RELEVANT VIEW FROM THE RICES’ DWELLING
The Tribunal, having determined that all applications other than that from the Rices must be dismissed, now turns to how to assess the Rices’ application.
From all of the photographic evidence presented, the Tribunal considers that at 1995, if the Rices had a “panoramic” view it may have been when looking through a gap in the Livingstones’ trees towards the east.
The trees referred to in the Rices’ application were not numerically or individually identified but this was done by the Tribunal appointed Tree Assessor and the Applicants’ arborist.
Mr Cockram identified 5 trees which were obstructing the Rices’ view in June 2013. They were 2 Cinnamomum camphora – Camphor laurel (17 & 18), 1 Manigeria indica – Mango (15) and 1 Bauhinia blakeana – Orchid tree (16) to the east of 13 Monks Crescent and 1 Macaranga tanarius – Blush Macaranga (19) to the south. The numbers are Mr Cockram’s numbers.
Tree number 19 is on the Livingstones’ property on the boundary of the Goves’ and Kleins’/Popes’ properties. It is dead and as such probably should be removed. However, as a dead tree the Tribunal finds that it cannot pose a severe obstruction to the Rices’ view from two doors up Monks Crescent.
Mr Young did not adopt the same tree numbers as Mr Cockram and the Tribunal was not supplied with a mechanism for matching up the differently numbered trees. Instead, at the Expert Conclave, Mr Cockram simply adopted Mr Young’s Table 1 of his report dated 11 October 2013 which presumably included Mr Young’s numbering and this could indicate an impact on considerably more trees than Mr Cockram had mentioned in his Reports.
Mr Cockrams and Mr Young’s trees which they considered were obstructing the Rices’ view in June 2013 are as follows:
Species
Height
Distance From Boundary
Cockram ID
Young’s ID
Young Height
Young’s Canopy spread
Bauhinia blakeana
11
1
16
1
12
7
Manigeria indica
8
8
15
2
10
7
Cinnamomum camphora
18
16
17
7
21
12
Cinnamomum camphora
18
22
18
8
21
12
Macaranga tanarius
?
1.2
19
9
12
12
Mr Young’s
extra
trees
Alphitonia excelsa
3
7
Cinnamomum camphora
4
15
Archonitophoenix alexandrea
5
6
Dypsis lutescens
6
4
Unknown
10
8
Unknown
16
6
Cinnamomum camphora
26
12
The Tribunal notes that Mr Young identified the extra 7 trees, listed in the above Table, which he considered were obstructing the Rices’ view in June 2013. He recommended the removal of trees 5 and 6 despite the application only being for trimming.
At the Expert Conclave Mr Cockram appears to have adopted all of Mr Young’s recommendations with the exception of those affecting his trees numbered 5, and 21 – 24. There is no explanation as to why Mr Cockram made such a significant variation from his reports, which only involved trimming defined trees. The Applicants only requested trimming the Livingstones’ trees but Mr Young recommended removing trees. The Tribunal finds that this “evidence” arising from the Expert Conclave is not reliable or acceptable under these circumstances.
Mr Cockram recommended that the 5 trees have a crown height reduction to the following extent:
Cockram
ID
Species
Height
Crown height reduction
16
Bauhinia blakeana
11
4 – 5 metres
15
Manigeria indica
8
3.5 – 4 metres
17
Cinnamomum camphora
18
3.5 – 4 metres
18
Cinnamomum camphora
18
3.5 – 4 metres
19
Macaranga tanarius
?
3.5 – 4 metres
Mr Cockram refers to ‘the previous panoramic view to the east and south-east’ without providing the Tribunal with any evidence to justify this assumption. Mr Young also uses the same terminology but he bases this on Plates 1 and 2 of his Rice Report which were taken before 2001 and are compromised by the damage to the trees in 1999/2001.
The Tribunal notes in relation to the photograph taken on 15 June 2013 by Mr Cockram looking east from the Rices’ dwelling that the Mango tree (his No. 15 or Young’s No. 2) is not as high as the tree behind it which is a 21 metre high camphor laurel (Young’s No. 4). To the left of the Mango tree the horizon is visible. Behind the Mango tree and further to its left are two 18 – 21 metre high camphor laurels.
The Tribunal has great difficulty accepting the crown height reductions proposed by Mr Cockram as the evidence for determining these reductions is unclear and may have originated from the RL levels exercise which the Tribunal has rejected.
Mr Cockram, in his Report, states:
A row of Dipsis lutescens – Golden Cane has also been planted along the boundary by the Tree Keepers While this has not impeded the panoramic view to the east and south-east at present, the applicants have requested this be maintained at its current height.
These are the same canes Mr Young seeks to have removed without providing any evidence to justify that approach.
As these canes have not interfered with the Rices’ use and enjoyment of their land, the Tribunal does not have jurisdiction to make an order.
FINDINGS
While the Tribunal accepts from the photographic evidence that parts of the Rices’ panoramic view was obstructed by trees from about 1995 when they took possession, it does find that since that time other trees have further obstructed their view.
The Tribunal accepts the Livingstones’ evidence that the Mango tree existed on site when they purchased the land in 1989. The Tribunal can take this into account under s 75(d) of the Act.
The Tribunal finds that across the 180 degree vista looking east, even a modestly significant interruption of part of that view caused by the Mango tree in an overall context, does not constitute a severe obstruction to that view.
The Bauhinia (Mr Cockram’s No.16 and Mr Young’s No. 1) is 11 metres high and 1 metre from the Rices’ boundary with the Livingstones’ 8402m2 property. The Tribunal finds, on the balance of probabilities, that it was not present or an obstruction to the Rices’ view in 1995. The Tribunal finds that its presence constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of the Rices’ land and, based on the photograph taken on 15 June 2013 by Mr Cockram looking east, finds it to be a severe obstruction of the view from the dwelling on the Rices’ land.
The Tribunal notes the position and the height of the 3 camphor laurels in the frame of Mr Cockram’s photo of 15 June 2013 and finds that these tall trees have contributed to the obstruction the Rices’ view since 1995. They are all 18 – 22 metres tall.
The Camphor laurel is a Category 3 Declared Pest in Queensland. There are three classes of declared plants under the Land Protection (Pest and Stock Route Management) Act 2002. These plants are targeted for control because they have, or could have, serious economic, environmental or social impacts. Class 3 pests are established in Queensland and have, or could have, an adverse economic, environmental or social impact. However, landholders are not required to control a Class 3 declared pest plant on their land, unless a pest control notice is issued by a local government because the pest is causing or has potential to cause a negative impact on an adjacent environmentally significant area.
There was no evidence before the Tribunal that the Sunshine Coast Regional Council had issued a pest control notice to the Livingstones in relation to these 3 trees or the other 5 camphor laurels referred to in Mr Young’s reports. However, the Tribunal under s 73(1)(k) can consider ‘the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law’.
The Tribunal declines to make orders in relation to the 7 trees added by Mr Young to those identified by Mr Cockram. While there may have been agreement at the Expert Conclave, the Tribunal was not informed by any evidence as to why these trees should be covered by an order.
The Tribunal considers that if the Bauhinia or the 3 camphor laurels are suitably reduced in height that the Rices should regain a view.
The Act operates only if the tree rises at least 2.5m above the ground. Here the Tribunal considers, given the closeness of the Bauhinia to the Rices’ boundary that it should be trimmed to 2.5m above the ground.
The Tribunal is reluctant to order the removal of the 3 camphor laurels, even though they are declared pests, but considers that they should be trimmed to 2.5m above the ground to overcome interference with the view and to avoid the need for an on-going order for height maintenance.
This order may result in them being removed which would be a bonus for both the Rices, the other applicants and the community as they have a potential to cause a negative impact on adjacent environmentally significant areas.
UNREASONABLE?
The Tribunal now has to consider whether or not the interference by the 3 camphor laurels and the Bauhinia was unreasonable.
Up until 1 November 2011 at Common Law there existed no right to a view. The Act brought about a significant change and the Applicants’, through their application, sought to act on that change.
The Livingstones have been in possession of their property since 1989 and many of the trees had been planted before they purchased it.
Under these circumstances the Tribunal finds that the Livingstones’ actions, in simply allowing their trees to grow, did not constitute unreasonable interference with the use and enjoyment of the Rices’ land.
However, allowing the Bauhinia to grow to 11 metres one metre from the Rices’ boundary was not reasonable. Allowing the 3 camphor laurels, which are declared pests, to grow to 18 to 22 metres and constitute a substantial, ongoing interference with the use and enjoyment of the Rices’ land was not reasonable. Based on the photograph taken on 15 June 2013 by Mr Cockram looking east, the Tribunal finds the 3 camphor laurels to be a severe obstruction of the view from the dwelling on the Rices’ land.
Once the Tribunal finds that the tree or trees affect the neighbour's land in accordance with section 66(2), the Tribunal can make an order for remedy.
The Tribunal finds that if the 3 camphor laurels and the Bauhinia were significantly reduced in height that the Rices’ view would be restored to a large degree even though its 1995 view has not been able to be established.
FURTHER CONSIDERATIONS
If where the Tribunal has found a substantial, ongoing and unreasonable interference with the use and enjoyment of the Rices’ land by the Livingstones’ trees, the Tribunal is still required to consider the matters raised in sections 73 and 75 of the Act. Therefore, the Tribunal intends to consider those matters now.
Section 73(a) raises the location of the trees in relation to the boundary of the land on which the tree is situated. The Tribunal has already considered this issue in relation to the Bauhinia when making its finding.
There was evidence to suggest that none of the trees has any historical, cultural, social or scientific value.
Sub-section (e) raises any contribution the tree makes to the natural landscape and the scenic value of the land or locality. The 3 camphor laurels being declared pests would have difficulty satisfying this sub-section.
In relation to sub-section (f), other than the general contribution trees make to the Buderim area the fact that the 3 camphor laurels are declared pests is evidence of their lack of contribution to public amenity.
In relation to sub-section (g) and any contribution the trees makes to the amenity of the land on which they are situated, it can be seen from the photographs that the trees in their totality make a significant contribution relating to privacy, landscaping and protection to the Livingstones’ back yard of their property. However, the removal of the 4 trees would have limited, if any, impact.
There was no evidence of any impact these 4 trees have on soil stability, the water table or other natural features of the land or locality.
In relation to sub-section (j) there was no specific evidence on the likely impact on the Bauhinia or the 3 camphor laurels of pruning them, including the impact of maintaining them at a particular height, width or shape. In view of the fact that the 3 camphor laurels are declared pests, the Livingstones might consider it more appropriate to remove them rather than simply reduce their height and have to maintain that height into the future. In fact, they might take the same attitude towards all of the camphor laurels on their property.
In relation to sub-section (k) the type of tree, including whether the species of tree is a pest or weed, the Tribunal has already addressed this issue above.
Turning now to section 75, sub-sections (c) the size of the neighbour’s land and (d) whether the tree existed before the neighbour acquired the land are relevant but both of these issues have been covered above.
When weighing the competing proposals and evidence in this matter and in particular when considering what Orders are appropriate the Tribunal is guided by the provision of section 72 which says that ‘a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved’. The Tribunal considered this section in relation to the 3 camphor laurels but, as the Rices had not sought to have them removed, the Tribunal declined to order their removal, although it considers that the area would be better off without these declared pests.
Orders
For the above reasons the Tribunal makes the following orders:
1. The Livingstones shall:
a.have the Bauhinia located one metre from the Rices’ boundary trimmed to 2.5m above the ground.
b.have the 3 camphor laurels numbered 4, 7 and 8 on Mr Young’s Table 1 of his report dated 11 October 2013 trimmed to 2.5m above the ground.
2. In view of the above Orders, the Tribunal declines to make an on-going order for height maintenance.
3. The Tribunal dismisses the following Applications:
a.Elizabeth Peek (NDR059-13);
b.Robert and Anne Grant (NDR060-13);
c.Ronald and Mariette Gove (NDR062-13).
4. The Tribunal allows the Application by Laurence and Sylvia Pope to be substituted for that of Dieter and Christiane Klein (NDR061-13) and that the material provided by the Kleins may be used by the Popes as far as it is relevant to their application, which has a possession date of 22 April 2014, but dismisses their application.
2
3
0