Watson-Brown v Heaton
[2014] QCATA 315
•17 November 2014
| CITATION: | Watson-Brown v Heaton & anor [2014] QCATA 315 |
| PARTIES: | Anthony Watson-Brown (Applicant) |
| v | |
| Troy Grant Heaton Suzanne Gaye McGrane (Respondents) |
| APPLICATION NUMBER: | APL335 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 17 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
|
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTES – TREES – where tribunal-appointed arborist’s report – where an additional arborist report – where no expert conclave – where tribunal-appointed arborist’s recommendations accepted – whether tribunal delegated decision-making function to arborist – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Laing v Kokkinos and anor [2013] QCATA 247 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Mr Watson-Brown lives in a single storey house set well back on his block at Golden Beach. His neighbours, Mr Heaton and Ms McGrane, live in a double storey house next door. They have a pool in their backyard, and they have used golden cane palms to create what they describe as a tropical oasis. Mr Watson-Brown’s description of the palms is not so benign. He feels that the trees obscure his view across the neighbourhood and prevent sunlight accessing his home during the winter months. He applied to the tribunal for orders that Mr Heaton and Ms McGrane trim and maintain the trees to a maximum height of 2.5 metres.
The tribunal ordered the complete removal of some trees, and pruning and thinning of others so there was a 400 mm clearance between the trees and the fence. Mr Watson-Brown is not satisfied with that result and has appealed the learned Member’s decision. Mr Watson-Brown has a number of grounds of appeal but they fall into two broad categories. He submits the learned Member erred in delegating her decision-making function to the tribunal appointed arborist or, alternatively, giving the arborist’s report too much weight. He also submits that the learned Member erred in her consideration of the available evidence which resulted in erroneous findings that Mr Watson-Brown’ view and access to sunlight was not severely obstructed.
Because this is an appeal on both fact and law, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The tribunal’s reliance on the arborist’s assessment
Mr Watson-Brown points to the transcript[5] to support a submission that the learned Member intended to rely on the arborist’s report unless the arborist failed to consider a relevant fact or there was contrary expert evidence.
[5] Page 1-31, line 39.
The tribunal appoints arborists as assessors to help the tribunal by giving expert evidence. The arborist can make observations about the facts but it is not his function to decide the issues in dispute. That task falls to the tribunal.
The transcript, and the learned Member’s reasons, does suggest that the learned Member relied on the arborist’s report heavily. She refers to the arborist’s recommendations in his first report and, by reference to his second report, considers whether those recommendations were implemented. The learned Member makes no finding about whether the recommendations were necessary to address mischiefs contemplated by the Neighbourhood Dispute Resolution (Fencing and Trees) Act 2011 (Qld). Further, she makes no finding as to whether work completed in line with the arborist’s recommendations was effective.
Because I am unable to confirm that the learned Member brought an independent mind to an examination of the evidence, leave to appeal must be granted. The appeal must be heard by way of rehearing[6]. In deciding the appeal I may confirm or amend the decision, or set it aside and substitute my own decision[7].
[6] QCAT Act s 147(2).
[7] QCAT Act s 147(3).
Was there a severe obstruction of a view?
The proper approach is first to establish whether, in 2008, there was a view worth protecting and then to consider whether it has been obstructed. A view does not necessarily gain protection just because it has been lost.
Mr Watson-Brown refers the appeal tribunal to the step-by-step process identified in Laing v Kokkinos and anor (2)[8]. He notes that there is a four step process of which only three are relevant: identify the view; identify the part of the dwelling from which the view exists; and assess the impact of the interference with the view from the whole property, not just the view that was affected.
[8] [2013] QCATA 247.
The learned Member purported to adopt Mr Watson-Brown’s description of the view as ‘the sky and surrounds’. But Mr Watson-Brown disputes this description. He says that the real view, as the evidence showed, was ‘across No. 5’s backyard and beyond’.
I have looked at the evidence on file. The view in 2008, when Mr Watson-Brown first moved in to his home, was a suburban view of yards and houses. Mr Heaton and Ms McGrane’s block contained only a small cottage at the very front of the block, so that Mr Watson-Brown could look out across an empty, grassy space to a group of trees in a nearby yard and the house on the corner of his street[9].
[9] See Attachment B page 17 to Mr Watson-Brown’s application.
Mr Watson-Brown could access this view from most of the windows on the northern side of his home and his back deck. Once Mr Heaton and Ms McGrane built their home, however, the view corridor to the north was restricted. According to Mr Watson-Brown, he could still access that view from his back deck and three windows on the north eastern section of his home.
Mr Watson-Brown’s home has other viewing corridors. He has the pleasant aspect of his own back yard. He can look to the south across another grassy yard. He has deliberately restricted his views from the front of the house by the erection of a garage.
The impacted view, on the best case available to Mr Watson-Brown, was a view of Mr Heaton and Ms McGrane’s swimming pool and the sky above the boundary fence and Mr Watson-Brown’s own hedge. Mr Watson-Brown submits that it is this view – a vista of sky and green – that has been severely affected. Mr Watson-Brown effectively concedes that he can do nothing about the view across the backyard because this view is obscured by the trees up to 2.5 metres from the ground. However, Mr Watson-Brown he asserts that he has lost a view between 2.5 metres and the current height of the trees at 7 or 8 metres.
I agree with the learned Member’s conclusion that the obstruction to Mr Watson-Brown’s view is not severe. As was the case in Laing[10] the trees provide and improve privacy to both neighbours. The presence of the trees is pleasant, albeit an interference with Mr Watson-Brown’s vista. The view that existed in 2008 cannot be restored, even if all the trees were removed, because Mr Heaton and Ms McGrane’s house obscures much of the ‘backyard view’. It would be unreasonable to expect a restoration of the view that existed as at 2008[11], given it is not an iconic view, a similar view is available from other parts of Mr Watson-Brown’s home and there is no suggestion that the view of Mr Heaton and Ms McGrane’s trees has no aesthetic appeal.
[10] Supra at [62].
[11] Supra at [55].
The learned Member did not err in finding that Mr Watson-Brown’s view was not one that should be protected by the Act.
Was there a severe obstruction of sunlight?
The arborist attended the site at 9.30 am on 3 August 2013. There can be no argument that an August morning would be the ideal time to consider an interference with morning sunlight. The arborist noted that the trees and palms were casting shadows on several windows in Mr Watson-Brown’s home. He considered that the shading effect would only occur during the mid-morning hours of the winter months. He took the view that shadowing later in the day would be caused by Mr Heaton and Ms McGrane’s home, rather than their trees. He noted that the windows on the north eastern side of Mr Watson-Brown’s home had permanently installed window shades. He considered, overall, that there would be minimal effect on shading by the trees over the next twelve months.
The learned Member observed[12], in my view correctly, that the arborist’s evidence was the ‘best evidence’ in the sense that it was neutral.
[12] Transcript page 1-19, lines 2 – 3.
Mr Watson-Brown’s evidence to establish a severe obstruction of sunlight is, frankly, less than compelling. He says that the shading effect is present from sunrise until well into the afternoon but he has provided no photos and no shade diagram. He has not dealt with the shade structures on his windows or the effect of his own hedge. He states that Mr Heaton and Ms McGrane’s house does not have any effect on the sunlight but the photos tend to suggest differently. He did not provide any independent evidence to support his position.
Because it is Mr Watson-Brown’s application, he bears the onus of proving that there is a severe obstruction of sunlight. Merely stating that it is so, when there is some evidence to the contrary, is not sufficient to discharge that onus.
Mr Watson-Brown has not satisfied me that there is a need to remove trees to address a severe obstruction of sunlight.
Miscellaneous issues
Mr Watson-Brown made some submissions that should also be addressed, although they do not alter my view about the outcome of this application.
He submits that the tribunal relied on an arborist’s report filed by Mr Heaton and Ms McGrane without leave and without an experts’ conclave. There is no evidence to support this submission. The learned Member acknowledged the second report but noted there was no reliable evidence of the matters addressed in that report[13]. The learned Member did not rely on the report. Instead, she ordered a supplementary report from the arborist engaged by the tribunal.
[13] Reasons for decision [8].
Mr Watson-Brown submits that the tribunal erred in restricting the arborist from making a full assessment when he undertook a second inspection and that the tribunal failed to supply the arborist with aerial photos that Mr Watson-Brown supplied to the tribunal.
I have accepted Mr Watson-Brown’s submission that the decision is for the tribunal, not the arborist. The learned Member took the view[14] that the aerial photographs did not assist in determining what view existed in 2008. The parties agreed in consent orders to facilitate the second report, one of the consent orders was that the tribunal would not accept further evidence from either party[15]. I have looked at the aerial photos in determining Mr Watson-Brown’s application. They did not assist his case.
[14] Transcript page 1-29, lines 44 – 45.
[15] Directions 17 April 2014, paragraph 3.
Mr Watson-Brown submits that the tribunal failed to make specific orders in relation to maintenance and what action Mr Watson-Brown could take in the event of non-compliance. That is true.
As to maintenance, the tribunal’s usual orders contemplate that the initial works, undertaken to address the application, will be maintained annually. If I had been satisfied that there was a severe obstruction to Mr Watson-Brown’s view and sunlight, I would prepared to make such an order. As I am not so satisfied, there is no basis on which I can order maintenance.
As the learned Member pointed out[16], the tribunal’s enforcement powers are limited. Mr Watson-Brown wants the appeal tribunal to ‘set out guidelines to assist in determining what action to enforce the orders’. That is not the tribunal’s role. It will not proscribe what evidence should be submitted to another Court. It cannot fetter the discretion of that Court. The nature of the jurisdiction - a living, growing environment - necessarily means that Mr Watson-Brown will have to produce evidence of non-compliance as he sees fit.
[16] Transcript page 1-18, lines 26 – 36.
Mr Watson-Brown takes issue with the learned Member’s refusal to order Mr Heaton and Ms McGrane pay his costs of the application. He says that the interests of justice require an order for costs because Mr Heaton and Ms McGrane refused to consider settlement of the dispute, verbally abused him and misled the tribunal. He says that he has been deprived of his rights for two years, has attempted to settle the dispute and has suffered emotionally.
None of the matters raised by Mr Watson-Brown is particularly surprising in a neighbourhood dispute. It is clear that that the parties have very different perceptions of their rights and obligations. It is clear that Mr Heaton and Ms McGrane have issues with Mr Watson-Brown’s evidence. The purpose of the tribunal’s costs power is not to punish recalcitrant neighbours who, despite the best of the tribunal’s intentions, cannot agree on a way forward. The costs power is not intended to punish parties for having contradictory evidence, or for refusing to get along with their neighbours. The tribunal’s costs powers, unlike those of the Courts, do not ‘follow the event’. I can see no reason to depart from the learned Member’s decision to decline an order for costs.
Finally, Mr Watson-Brown submits there are further issues that have come to his attention since the hearing. An application for leave to appeal is not, and should not be, an attempt to start a fresh hearing, and ventilate issues that were not before the original tribunal, without filing a fresh application. Further, Mr Watson-Brown’s submissions presently relate only to a concern that something may happen in the future. The tribunal cannot speculate over what might happen. It can only deal with the facts as presently exist and whether a severe obstruction is likely in the next twelve months.
Conclusion
In her reasons for decision, the learned Member did not make findings about whether the trees severely obstructed sunlight to Mr Watson-Brown’s home. Further, the learned Member accepted the arborist’s recommendations without considering Mr Watson-Brown’s evidence. For that reason, leave to appeal should be granted.
However, I am not persuaded that Mr Watson-Brown has established a severe obstruction to sunlight or a view. That being the case, I cannot see the need for the learned Member’s orders for removal, thinning and clearance. Because Mr Heaton and Ms McGrane have not filed an application for leave to appeal, I do not propose to set those orders aside. The appeal is dismissed.
The course of this proceeding was not ideal. There were two expert reports, but no conclave. The learned Member adjourned the hearing to allow a further expert inspection, but did not allow additional evidence to be filed, even though, with the adjournment, the parties would have been able to respond to fresh evidence. The learned Member relied on the tribunal-appointed arborist in a way that does suggest she delegated the decision-making function to him.
This is not the first appeal that has examined the need for care when there is a tribunal-appointed arborist and a separate expert retained by one of the parties. There is a real prospect that the tribunal will continue to breach its obligation of procedural fairness and its own Practice Direction. In light of this decision, the tribunal should re-examine its process in tree disputes to ensure the parties can have confidence in the process and the outcome.
0
2
0