Richardson v Beakey - [2024] QCAT 255

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Richardson & Anor v Beakey [2024] QCAT 255

PARTIES:

GREGORY ARTHUR RICHARDSON

(applicant)

SUSAN ELLEN WALLACE

(applicant)

v

KEITH JOHN BEAKEY

(respondent)

APPLICATION NO/S:

NDR158-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 June 2024

HEARING DATE:

21 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1. The Tribunal orders that the Application for a tree dispute filed in the Tribunal by Gregory Arthur Richardson and Susan Ellen Wallace on 9 October 2020 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABIT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – view – whether trees on the tree-keeper’s land obscure a view from the neighbour’s property – whether view existed when the property was purchased by the neighbour – whether a severe obstruction of the view – where neighbour wants removal of trees or trees trimmed to restore view

Neighbour Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 61, s 62, s 65, s 66, s 72 and s 73.

Laing & Anor v Kokkinos & Anor (2013) QCATA 247 at (33) – (41).

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Gregory Arthur Richardson and Susan Ellen Wallace (‘the Applicants’) seek to have a number of trees removed from or pruned/lopped on their neighbour’s property owned by Keith John Beakey (‘the Respondent’), on the basis that those trees are substantially obstructing their view to the city and suburbs to the south from the Applicants’ dwelling.
The Applicants are the registered proprietors of 53 Marne Road, Albion, Brisbane Queensland.[1]
[1]The Applicants filed a Title Search in the Tribunal on 5 February 2020 which records that both the Applicants are Joined Tenants held oft Lot 15 on RP 53080 since 12 August 2016.
The Respondent is a registered proprietor of 17 Stoneleigh Street, Albion.[2]
[2]The Applicants filed a Title Search in the Tribunal on 5 February 2020 which records that the Respondent is the sole registered proprietor of Lot 2 on R P44076 since at least 10 April 2002.
Each of the properties abuts the other property along a common boundary fence at the rear of each parcel of land. The Applicants filed in the Tribunal on 14 January 2022 a Plan of Survey of the Respondent’s land where they indicated by “Green Dots” the location of the trees on that land and they state that the trees:
numbering somewhere between 18 – 20 trees mostly eucalypt species ranging from 8 m to 14 m.
However, it is noted that earlier in the Application for a tree dispute filed on 9 October 2020 the Applicants stated as follows;[3]
the trees have become quite big, e.g. 12 – 15 m tall and could potentially pose a danger in the future, particularly during the summer storm seasons.
Also, in the Application for a tree dispute the Applicants have identified a total of 9 trees on the Respondent’s property which is the subject of this dispute.[4] Those trees are described as “eucalyptus”.[5]
[3]See Application for a tree dispute filed on 9 October 2020 at paragraph 13, page 6.
[4]See Application for a tree dispute filed on 9 October 2020 at paragraph 32, page 12.
[5]See Application for a tree dispute filed on 9 October 2020 at paragraph 36, page 13.
The Applicants seek orders from the Tribunal that the following work be carried out to the trees on the Respondent’s property:
(a)remove or prune the branches of the trees;
(b)an order for a person to enter the Respondent’s land to carry out the order;
(c)an order that a person can enter the Respondent’s land to obtain a quote to carry out an order; and
(d)other orders that the Applicants continue to pay for the pruning of trees to 3.5 m and annually thereafter to a height of 3.5 m.
The Response filed in the Tribunal by the Respondent disputes most of the factual allegations made by the Applicants and also states:
the views are scant, obstructed by various trees and buildings anyway. Cutting 17 Stoneleigh Street trees to 3.5 m would represent a dramatic loss of privacy amenity, local ecosystem.
The Respondent then contends there are a number of inaccuracies particularly in relation to the location/position of his property to the adjoining property of the Applicants.

Background

Since 1981 Susan Ellen Wallace has lived in the property at 53 Marne Road, Albion. She and Gregory Arthur Richardson have resided in that property since 1986. They say at that time the trees had not been planted at the Respondent’s property and they enjoyed uninterrupted views to the city and suburbs to the south. Evidence before the Tribunal is that in about 2013/2014 the Applicants property underwent significant renovations and expansions to the rear of the home. In 2020 a rear upper deck was constructed.
In further evidence filed by the Applicants in the Tribunal they say that they have resided at 53 Marne Road, Albion since 1995.[6]
[6]See the Statement of Evidence filed in the Tribunal by both Applicants on 14 January 2022 at paragraph 1, page 1.
The Respondent says that 17 Stoneleigh Street was built in the late 1880s and was modified as a duplex in 1910. He has occupied that property since 2003. He says that when he first moved to the property there were trees and shrubs well-established in the rear section of his property including:
(a)a triple grafted mandarin tree in the backyard, NW corner, standing more than 5 m tall;
(b)a big pepper tree standing 5.5 m tall, more than 5 m wide, centre north;
(c)various palms;
(d)numerous other native trees and shrubs.
He says that over time he planted some trees and shrubs in order to:
(a)support local wildlife e.g. ringtail possums, lizards, blue-tongue lizards;
(b)support possum boxes, birds nests;
(c)birdlife, parrots, native miners, migratory birds etc;
(d)provide for some privacy and amenity from uphill neighbours;
(e)protect his amenity and privacy, including his rear bathroom and kitchen from properties that overlook 17 Stoneleigh Street.
The Respondent says it would be incorrect to say that it was bare of vegetation in 2013, or earlier. However, the evidence indicates that at some point in time trees were planted on the Respondent’s land which have now grown to the extent, as will be discussed later, which is said to interfere with the Applicants’ views to the city and suburbs to the south.
The Applicants state that since 2016 they have requested the Respondent to keep all these trees at the back of his property to a height of 2.5 m to ensure that the Applicants keep the view that existed since 1981.[7] Apparently, the Applicants have relied upon a document they referred to as the “Queensland Governments resolving tree and fence disputes” which they say states:
(a)Interference with your use and enjoyment of land
A neighbour’s tree may be classed as unreasonably getting in the way of our use and enjoyment of land if it:
(i) obstructs a view that existed before you took possession of the land if the tree branches are more than 2.5 m above the ground.
[7]See the Statement of Evidence filed in the Tribunal by both Applicants on 14 January 2022 at paragraph 2, page 1, and at Appendix 1.
The Applicants state that the Respondent
has not responded at any time to support our request except to allow a small branch of a tree to be removed from the side of the trees so we could see a view to the right of the existing trees.
since 2016 we have constantly – assured the respondent that we would fund the pruning of trees to 3.5 m to ensure he kept his trees to support animals and birds in the tree.
The Respondent says that the Applicant has omitted to mention that in 2016[8]
as an act of goodwill, I agreed to drop a very tall gumtree in 2016, when he first threatened to enter my property, and cut ALL my trees to 2.5 m. The tall eucalypt was dropped on safety grounds. As we will get to later, there are no other large “branch dropper” eucalyptus on my property.
[8]See the Response to application for a tree dispute filed in the Tribunal on 1 December 2020 at Attachment 1 Part C, Section 13.
On 19 September 2017 the Applicants made a written offer to the Respondent to pay for the trimming of trees at the back of his property which were obstructing the Applicants’ views to a height of 3.5 m and to continue to maintain those trees at that height. One of the text messages the Applicants rely upon is a request from the Respondents to advise:
please tell us which trees in my yard that may DISRuoy [sic] specific [views].
To which the Applicants responded as follows:
the trees across the back all would be cut to 3.5 m or 2.5 m if QCAT rules apply. However the 3.5 m is generous and within legal guidelines. At no time is this text a threat. It is a reasonable request for trees to be cut to the recommended height as per legal advice. From now on you can speak with Sue Petra. As you believe Greg’s text was a threat which is just ridiculous you can discuss the trees with me by Friday 27 September or through QCAT take your pick
On Monday, 30 September 2019, the Applicants sent an email to the Respondent asking if they could trim the trees to 3.5 m height to access the views and the pointed out the responsibilities of a tree keeper under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
The Applicants state that during the above exchange of correspondence they did not have face to face conversations with the Respondent but state:[9]
as a result, the respondent gave permission for us to trim one tree to the far right at the back of his property to 3.5 m which did result in a change to the view from our house.
[9]See the Statement of Evidence filed in the Tribunal by both Applicants on 14 January 2022 at paragraph 6, page 1.
However, the Applicants state that since 2019 there has been no approval from the Respondent to allow them to trim trees at the back of the Respondent’s property. The Applicants provide a number of photographs taken in the period from 2018 through to 2021 showing interrupted views to the city and to the south from their dwelling.
On 7 June 2022 the Applicants took photographs which they say showed the Respondent’s trees which block their view and which are on the edge of the Applicants’ boundary fence.
The Applicants maintain they have tried to resolve the tree dispute with the Respondent and state:
Numerous messages, meetings and correspondence dating back to April 2016. We clearly explain the problem with the trees and that we had our view from our house before the trees were planted. We offered to have the trees cut and maintained in the future at our expense. This was met with constant arguments and refusal to acknowledge their responsibility.
Both parties contend that various threats or communications to that effect were made in the past between them over several years.

Tribunal’s Jurisdiction in a Tree Dispute

The Applicants filed on 9 October 2020 an Application for a tree dispute relying upon the Act.
The Act provides that the Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that at the date of the application, land is affected by the tree.[10]
[10]The Act, s 61.
If land is affected by a neighbour’s tree, then an application can be made to the Tribunal for an order pursuant to s 66 by which the Tribunal can make an order it considers appropriate in relation to a tree affecting the neighbour’s land to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[11] Such interference must not only be ongoing and unreasonable but can also apply to an obstruction of sunlight or a view only if:
(a)the tree rises at least 2.5 m above the ground; and
(b)the obstruction is:
(i) severe obstruction to sunlight to a window or roof of a dwelling on the neighbours’ land; or
(ii) severe obstruction of a view, from a dwelling on the neighbours’ land, that existed when the neighbours took possession of the land.
[11]Ibid, s 62.
The Applicants contend that the Respondent’s trees interfere with their ongoing use and enjoyment of their land. Such interference relates to an obstruction of the Applicants’ view.
In these circumstances the Tribunal has jurisdiction to hear and determine this tree dispute.

Identification of the trees in the Respondent’s property

The Applicants contend that there are “somewhere between 18 – 20 trees mostly eucalypt species”[12] but earlier in their Application filed in the Tribunal contend there are “nine trees” identified in the diagram provided by the Applicants in the Application for a tree dispute.[13] The Applicant also says that these trees range from “8 m to 14 m” but had earlier stated in the Application for a tree dispute that they were “12 – 15 m tall”.
[12]See the Plan of Survey and handwritten comments made on that document in the Statement of Evidence of the Applicants filed in the Tribunal on 14 January 2022.
[13]See Application for a tree dispute filed on 9 October 2020 at paragraph 32, page 12.
The Respondent says that the trees on his property there are not 12 – 15 m in height.[14]
[14]See the Response to application for a tree dispute filed in the Tribunal on 1 December 2025 the Respondent at Attachment 1, Part C, Section 13.
At the directions hearing in the Tribunal held on 1 November 2021, Acting Member Lember noted, notwithstanding the earlier Direction of the Tribunal for the parties to each contribute towards the cost of a Tree Assessor, the Respondent failed to comply with the directions and that a further amount of $500.00 could be paid by the Applicants for the engagement of a Tree Assessor or the Applicants could engage their own Arborist to undertake an assessment and provide a report.
Notwithstanding the directions of the Tribunal no Tree Assessor’s or Arborist’s report has been provided to the Tribunal for the hearing.
The position is therefore that there is some controversy between the parties about the number and identification of species of the trees in the Respondent’s property. The Applicant says that the trees are eucalypt, or “mostly eucalypts” and they range in height from either 12 to 15 m[15] and that a later stage in the proceedings said that the height was from 8 m to 14 m.[16]
[15]See the Application for a tree dispute filed 9 October 2020 at Part B, item number 13.
[16]See the Applicants bundle of documents filed 5 February 2020 at the Plan of Survey with the handwritten comments.
The Respondent says that when he moved to the property there were trees and shrubs well-established including;
(a)a triple-grafted mandarin tree in the backyard, NW corner, standing more than 5 m tall;
(b)a big pepper tree standing 5.5 m tall, more than 5 m wide, centre north;
(c)various palms;
(d)numerous other native trees and shrubs
Unless the “native trees and shrubs” include eucalyptus trees (which is not abundantly clear on the evidence before the Tribunal) it is difficult for the Tribunal to see any common ground or a clear identification of the trees being referred to by the Applicants which they require to be reduced in height to 3.5 m.
Notwithstanding the lack of identification of trees, there seems to be further controversy as to the height of the trees. That may not matter so much as there is photographic evidence before the Tribunal indicating the trees that are blocking the Applicants’ views to the city and to the south, although there is the further controversy as to whether one or more of these trees are situated on another property in Gove Street, rather than on the Respondent’s property.
The evidence from both parties indicates that this Application relates to a number of trees which are of some significant age and relatively substantial height. The proposal by the Applicants is to reduce the trees to a height of 3.5 m. That will require a substantial pruning/lopping. There is no evidence before the Tribunal from a Tree Assessor or from an Arborist on how such a reduction in height to 3.5 m will affect the health and well-being of such trees. That is, whether the trees can be cut to a height of 3.5 m and still maintain their vigour and growth or whether the pruning/lopping of the trees will have a detrimental effect. On those existing trees This is unexplained on the evidence.
The evidence suggests that there are a mix of species of trees but the Applicants identify the trees as being mainly eucalypt trees. Their location on the Respondent’s property has not been identified in any accurate manner so that it is difficult, when those trees are mixed with other species, to identify what will be the effect of pruning/lopping the eucalypt trees to 3.5 m and leaving any other species at their existing natural height. The evidence before the Tribunal does not explain what the position would be with those other trees that belong to a species other than eucalypt and if they a pruned or loped as sought by the Applicants.

What are the Views from the Applicants’ Dwelling to the South

The Applicants say that from 1981 until sometime prior to 2016 they had a view to the city and suburbs to the south of their property. The photographs provided by the Applicants are of views from their property from 2018 through to approximately June 2022.
The Applicants, apart from their own statements, do not provide to the Tribunal for the period from 1981 to prior to 2016 any evidence by way of photographs or statements from independent persons of the extent and nature of the views which the Applicants say they had to the city and suburbs to the south.
The Respondent says that the Applicants do not have a view and, in the past, did not have an unobstructed view to the city and to the south. He says that the diagram supplied by the Applicants
Do[es] not correctly depict trees at the back of 17 Stoneleigh Street and omits the presence of a pergola and built-in barbecue in the NE corner. A tree is drawn in its place, though my built-in barbecue has been there for more than 10 years I regard that as misleading at best, particularly with regard to privacy, amenity and the well-being of ferns and orchids which surround the pergola.
I do not think 53 Marne Road had much of a city view at all, regardless of trees in my backyard
However, it does not appear from the evidence that the Respondent is able to provide any evidence, other than his own statements, by way of photographs or from independent witnesses of the lack of views to the south of the Applicants’ dwelling to which he refers to above.
The Respondent then refers to a number of local developments which he says have impacted on views from 53 Marne Road and refers to a number of adjoining properties and says in respect of views to the south:
Towards the city (that’s South) there are various tall trees that are very likely to impact views from 53 Marne most impacting city views. Has he done anything to address this?
The Respondent in his evidence in reply points out that the roof of a house appearing in the photograph produced by the Applicants was to be rebuilt in 2022. He also says a rather large tree appearing in the photographs provided by the Applicant is in fact
in Gove Street, ignored by the complainants completely, which blocks whatever view there was.
The location of Gove Street is not in evidence before the Tribunal and apart from the Respondent’s statement, there is no photographic evidence taken in Gove Street or statements from independent witnesses which would be in support of the Respondent’s evidence to the Tribunal.
The Respondent also says that the Applicants’ property is elevated approximately 7 m above his property and that cutting away any of the trees to 3.5 m may well be:
(a)intrusive to his property, amenity and privacy;
(b)adversely impacting on wildlife e.g. possums, nesting birds, migratory birds, lizards etc.

The evidence from the parties demonstrates a significant factual controversy relating to the extent of views and what local and adjoining property features may, or may not, detract from those views. However photographic evidence tendered to the Tribunal by the Applicants demonstrates that the Applicants do have a view of the city skyline from the right side of trees shown to be at the rear of the property and presumably these are on the Respondent’s land.[17] The Applicants’ view to the south is partially obstructed by trees shown in those same photographs which are at the rear and to the south of the Applicants’ property. Whether those trees are in the Respondent’s property (as the Applicants claim) or whether one or more of those trees is in Gove Street (as the Respondent claims) can be resolved on the basis that the Respondent has not provided any evidence (apart from his own statements) by way of photographs or witness statements from independent persons that the trees referred to are in fact in Gove Street. The Tribunal is satisfied that the trees depicted in those photographs are on the Respondent’s land.
[17]See the Further Material presented by the Applicants filed 8 June 2022.
The best evidence before the Tribunal of the Applicants’ current views from their dwelling to the south is contained in two (2) photographs appearing in the Applicants’ Statement of Evidence.[18] Each of those two photographs show that the Applicants do have a view of the city skyline and the surrounding suburbs for quite an extensive area of the Brisbane city to the right-hand side of trees which appear in those photographs at the rear of their property. This evidence demonstrates that the Applicants have substantial views of the city skyline and of surrounding suburbs although there is an obstruction to a 180-degree view of whatever other parts of the city skyline or suburbs are located behind the trees on the left-hand side of both of those photographs. In any event the evidence from the Applicant of the views to the city and suburbs to the south.
[18]See the Applicants’ Statement of Evidence filed 14 January 2022 at page 2 photographs 10 and 11.
The Tribunal is satisfied that there are views available to the Applicants of the city and its skyline and of surrounding suburbs to the south of their dwelling and that there are additional city skyline or suburb views located behind the trees, on the left-hand side of the two photographs, which obstruct the Applicants’ views.
The Applicants’ case in its Application for a tree dispute is that they once enjoyed views to the city and suburbs to the south of their property, and they now find that they have trees which[19]
Substantially obstruct our view to the city and suburbs to the south of the property.
[19]See Application for tree dispute filed 9 October 2020 in Part B, item 30.
The Tribunal finds that based on the photographic evidence provided to the Tribunal that:
(a)the Applicants have a current and existing substantial view from their property to the city skyline and suburbs; and
(b)there are trees which are located to the rear of the Respondent’s property which are partially obstructing a wider 180-degree view towards the city and suburbs to the south.

What Remedies, if any, are Available for the Partially Obstructed View

The Tribunal has already, in effect, made a finding that the Applicants’ land is affected by trees on the Respondent’s land.[20]
[20]The Act, s 59.
These proceedings do not involve any issue relating to whether branches of trees on the Respondent’s land overhang the common boundary with the Applicants’ land. The Tribunal has already referred to the lack of expert evidence relating to the impact on the future well-being of trees which the Applicants seek to prune/lop to a height of 3.5 m.
The issue in these proceedings involves:
(a)whether the Tribunal is satisfied about those matters in s 65 of the Act; and
(b)whether there is substantial, ongoing and unreasonable interference with the Applicants’ land in terms of an obstruction to a view only if:
(i) the tree rises at least 2.5 m above the ground; and
(ii) 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.

Are the considerations in s 65 satisfied

The evidence establishes that the Applicants have made reasonable efforts to reach agreement with the Respondent. While the parties do provide differing versions of what occurred prior to the filing of the Application for a tree dispute there nevertheless were communications and attempts to resolve the tree dispute. The Applicants state that they have tried to resolve this dispute as follows:
Numerous messages, meetings and correspondence dating back to April, 2016. We clearly explained the problem with the trees and that we had our view from our house before the trees were planted. We offered to have the trees cut and maintained in the future at our expense. This was met with constant arguments and refusals to acknowledge their responsibility.
The Tribunal is satisfied that the Applicants have made a reasonable effort to reach agreement in relation to this tree dispute with the Respondent.
The Applicants have given a copy of the Application for the tree dispute to the Respondent. The Respondent has participated in the proceedings before the Tribunal and obviously has full knowledge of those matters raised in the Application as is evident from the Response filed by the Respondent in the Tribunal.
The Tribunal is satisfied that the requirements in s 65 of the Act have been established on the evidence before in these proceedings.

Are the Trees the subject of this dispute higher than 2.5 m

The evidence before the Tribunal clearly establishes that the trees to which the Applicants refer rise more than 2.5 m above the ground. There is no controversy insofar as this requirement is concerned.
Both parties when referring to the trees have adopted various heights; however, all those heights are well in excess of 2.5 m.
The Tribunal is satisfied that all trees the subject of these proceedings are of a height in excess of 2.5 m.

Is there substantial, ongoing and unreasonable interference with the Applicants’ land

The Tribunal may make orders it considers appropriate in relation to a tree affecting the Applicants’ land.[21] However, that discretion can only be exercised so as to remedy, restrain or prevent a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land. Where that interference is an obstruction of a view the exercise of the discretion requires that the trees:
(a)Are a severe obstruction of a view, from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.
[21]The Act, s 66(2).
However, while it is evident that the view in these proceedings relates to a view from a dwelling on the Applicants’ land, the main controversy to be resolved is whether the obstruction is:
(a)a severe obstruction of a view; and
(b)whether the view existed when the neighbour took possession of the land.

Is there a severe obstruction of a view

The Tribunal has already made findings in these proceedings that the view from the Applicants’ dwelling consists of:
(a)an extensive view to the city skyline and surrounding suburbs to the south as shown on two photographs in evidence before the Tribunal; and
(b)that a more extensive 180-degree view of the city skyline and surrounding suburbs to the south would be available to the Applicants but for some trees on the Respondent’s property which obstruct that view.
That is, the Applicants’ views to the south are extensive but because of trees on the Respondent’s land there is a partial obstruction of further views of the city skyline or surrounding suburbs to the south.
The Applicants’ case is therefore one where there is a partial obstruction to views to the south but at the same time views are available to the Applicants to the city skyline and surrounding suburbs as shown in the two photographs in evidence. The Applicants nevertheless have extensive views of the city skyline and surrounding suburbs but are missing out on what can be termed the “whole view”, the 180-degree view, to the south of their dwelling. The question is whether that partial obstruction represents a “severe obstruction” of their view. The evidence before the Tribunal is that there is an obstruction of the Applicant’s view, but is it a “severe obstruction”?
Assistance in determining whether there is a “severe obstruction” is provided in Laing & Anor v Kokkinos & Anor[22] which states that the Act makes it clear there is a three-step process which the Tribunal must follow when determining applications for orders under s 66(3)(b)(ii). The first step, which is to determine what view existed when the Applicant took possession of the property, then to determine the second step namely whether the trees on the adjoining property are causing a severe obstruction of that view. In that decision Justice Wilson discussed the meaning of “severe obstruction” as follows:

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’.
The term “severe obstruction” is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’. During Parliamentary Debates, the then Attorney-General commented: ‘The severity threshold requires that the view must be nearly blocked out’. Within this context, it would appear that use of the word ‘severe” in s 66 of the Act means the obstruction must be considerable.
The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales. In Haindl v Daisch the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements. The LEC decision gave the following examples:
[If the] view comprises predominantly an unrelieved outlook towards unattractive and blank-wall built form and there is only a limited viewing corridor to some attractive more distant elements, whether natural or built or whether iconic or not, a significant reduction of the attractive elements by trees on the 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° 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 of that view.
[22][2013] QCATA 247 per Wilson J, President of QCAT at paragraphs 33 – 41.

The Applicant’s position appears to be that they originally had an almost 180° view to the south from their dwelling which is now partially interrupted by trees on the Respondent’s property. While that obstruction may not necessarily be regarded as ‘modest’, the obstruction cannot be classified as was said in the words of the then Attorney-General during Parliamentary Debates:
The severity threshold requires that the view must be nearly blocked out.
The Applicants do not satisfy that test as stated by the then Attorney-General. Neither can the obstruction by trees in the Respondent’s land be objectively described as ‘harshly extreme’ or ‘hard to endure’. While these tests may not be satisfied on the Applicants’ subjective view of the obstruction by the Respondent’s trees, the proper approach is to apply the objective test as referred to above. In these circumstances, the Tribunal is not satisfied that the partial obstruction identified in these proceedings to the Applicants’ view is a severe obstruction to the views which the Applicants had to the south when they first came to reside at their property.
For these reasons the Tribunal finds that the trees on the Respondent’s property are not a “severe obstruction” with the consequence that the Tribunal is not able to make orders in accordance with s 66 of the Act for benefit of the Applicants. The evidence before the Tribunal does not satisfy the requirements for a “severe obstruction”. The Applicants’ claim must fail and is unsuccessful.
Even if it is assumed for the moment that there was a “severe obstruction” the Tribunal would be required to consider a “third step” which requires the Tribunal to balance the interests of the parties considering the matters listed in sections 72 to 75 of the Act. In considering those matters the Tribunal considers that the balance of interests favours the retention of the trees in their current form on the Respondent’s property and does not regard the pruning/lopping of those trees to a height of 3.5 m is warranted when considering the balance of the interests of the parties under those provisions. On this basis the Tribunal would dismiss the Applicants’ Application for a tree dispute filed on 9 October 2020.
Accordingly, the Tribunal will make orders to dismiss the Applicants’ claim.

Orders

The Tribunal orders that the Application for a tree dispute filed in the Tribunal by Gregory Arthur Richardson and Susan Ellen Wallace on 9 October 2020 is dismissed.