Wells v Kennedy
[2024] QCAT 239
•13 June 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wells v Kennedy [2024] QCAT 239
PARTIES:
MELANIE JANE WELLS (applicant)
MICHAEL JOHN WELLS (applicant)
v
SARA BEE PING KENNEDY (respondent)
STEPHEN JOHN KENNEDY (respondent)
APPLICATION NO/S:
NDR007-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
13 June 2024
HEARING DATE:
29 May 2024
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDERS:
1. These orders relate to the bamboo hedge growing on the property of Sara Bee Ping Kennedy and Stephen John Kennedy (‘the respondents’) near the boundary between their property and the property of Melanie Jane Wells and Michael John Wells (‘the applicants’).
2. By no later than 15 September 2024, the respondents must trim the hedge so that its highest point is no higher than a horizontal line drawn three metres above the pavers surrounding the applicants’ swimming pool.
3. In each subsequent calendar year, commencing in 2025, the respondents must trim the hedge in the manner specified in order 2:
(a) once at some time in the months March or April; and
(b) once at some time in the months October or November.
4. The respondents may if they wish engage other persons at the respondents’ expense to carry out trimming under orders 2 and 3.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstruct view – whether unreasonable interference with use and enjoyment of land – whether severe obstruction of view
Human Rights Act 2019 (Qld), s 13, s 24, s 25
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
The applicants and the respondents are neighbours. There is a hedge of bamboo in the respondents’ yard alongside the boundary between the two properties. The applicants ask the tribunal to order the respondents to remove or at least trim the bamboo in order to restore a view from the applicants’ home down a valley to the ocean, a few kilometres away.
The respondents wish to keep the bamboo because of the privacy and aesthetic value it provides. Before the bamboo was grown, the applicants’ house overlooked the respondents’ property. The respondents also say that if the bamboo is to be trimmed, they should not be required to meet the cost.
The application is under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Neighbourhood Disputes Act’).
Background and findings
The parties have filed detailed documents including photographs. There is also a report by arborist David Gunter, dated 9 November 2022. The tribunal had appointed Mr Gunter as an independent assessor.
The following facts are uncontentious:
(a)the applicants and the respondents are the registered proprietors of their respective properties;
(b)the applicants have lived on their property since they bought it in 2014;
(c)significant parts of their house, including the living area and master bedroom, face eastwards, across the respondents’ property, towards the ocean;
(d)there is a pool surrounded by pavers between the applicants’ house and the fence between the properties;
(e)there are decks accessed from the applicants’ living area and master bedroom, overlooking the pool;
(f)the applicants removed the living area deck at some time before 2017 and replaced it with a larger deck which extends closer to the boundary;
(g)just inside the respondents’ yard, alongside the dividing fence, is the bamboo hedge;
(h)the respondents purchased their property in 2007 and have lived there since 2010;
(i)the respondents planted the bamboo in early 2017;
(j)some trimming of the bamboo occurred between 2018 and 2020 by agreement between the parties; and
(k)after that, the parties negotiated about further trimming but failed to reach agreement as they were unable to agree on timing and who should do or pay for the work.
It appears to be common ground between the parties that the applicants had more view down the valley to the ocean at the time they moved into their house. However, there is dispute about the extent of the view. Partly this is associated with uncertainty about the exact points from which early photographs were taken. The photographs were taken for purposes unrelated to this dispute, so the precise locations of the camera would not have been noted at the time. Partly the dispute relates to the fact that some earlier photographs were taken from the current living room deck, which extends closer to the fence line than the original deck.
The applicants have illustrated with photographs that the new living room deck extends only a metre or so further out from the house than the original deck. I accept this. One of the photographs taken in about 2018 is of two people standing near the outside edge of the current living room deck after the bamboo had been trimmed. In the background is a vista of land, mostly green though with some buildings, and then glimpses of the ocean. The photograph was taken from a few metres back toward the living area. I consider that this photograph does give a good indication of the view from the original deck, notwithstanding that the edge of the original deck was closer to the house.
The applicants have also provided earlier, pre-bamboo photographs showing some of the eastward outlooks from different points. According to the applicants, a particular photograph was taken in December 2013, shortly before they moved in, from the original deck. It shows an outlook down the valley to the ocean. The view of the ocean is distant but glimpses of the ocean can be seen along most of the horizon in the photograph. There is also a glimpse of another patch of water before the ocean, which I assume is the lake referred to in the applicants’ documents. There is another photograph which the applicants say was taken from inside the house in 2014. It shows an outlook down the valley to the coastline, though it is not clear that any water is visible.
I accept that the views described above existed from the applicants’ house when they moved in.
In their application, the applicants said that they used to have ‘35 metres of ocean and land view … from ground level & upper level of house (deck, living, kitchen & bedrooms)’.[1] However, they have not supplied a house plan or photographs sufficient to confirm that the view existed from so many points.
[1]Application, p 11.
I find that when the applicants purchased their property, there was a pleasant view from at least some rooms in the house, and from the decks, down the valley across the respondents’ land. The ocean was visible in this direction from the decks at least.
The applicants have provided recent photographs which establish that instead of that original view, they now have from their living room and living room deck, at least, a view only of a wall of bamboo. This is confirmed in a photograph in Mr Gunter’s report.
Mr Gunter’s report has a photograph captioned as showing the view from the master bedroom ‘with partial views above the Bamboo’.[2] This may include glimpses of ocean but it is hard to discern. It is apparent from other photographs that the master bedroom is a little higher than the living room because of a split level design.
[2]Mr Gunter’s report, 5.
Since Mr Gunter visited the properties, the respondents have built a shed, said to be nine metres long, which replaces some of the bamboo to the right as one looks eastward. A recent photograph shows some landscape view over the roof of the new shed. It is not clear from the photograph whether any ocean is also visible.
Mr Gunter did not measure the height of the hedge but it can be inferred from photographs in his report that the top of the hedge is around five metres above the level of the pavers around the applicants’ swimming pool. The roof line of the shed appears to be about 3.5 metres above the level of the pavers.
Different people in the community no doubt have different feelings about the aesthetics of bamboo. It can be safely assumed, though, that most people would much prefer a view across a largely green landscape to the ocean than a view of a bamboo hedge. The presence or absence of the former view would also affect the price for which the applicants could sell their property.
The respondents have provided photographs which they say illustrate that the original view was interrupted by a few palm trees. Accordingly, the respondents argue, the orders sought by the applicants would produce a better view than originally existed. However, the previous interruption to the view was minor in the scheme of things. The fact remains that the applicants previously had a broad and pleasant vista from all eastward-facing areas in their house but now have only a curtailed outlook from most vantage points, including an outlook from the living area that stops at the bamboo hedge.
The respondents emphasise that the hedge is important for their privacy because previously their house and yard were overlooked by the applicants’ house. I accept this. It is illustrated in photographs provided by the respondents. They also say, and I accept, that they regard the bamboo as aesthetically pleasing.
The respondents acknowledge that they lived in their property for several years before they planted the bamboo. However, they say it took them longer than expected to carry out their various landscaping plans because of financial setbacks. They say they chose the species of bamboo on the advice of their landscaper. They say they thought it would grow to three or four metres, which was indicated as the typical height on the labels that came with the plants.
I accept the evidence of the respondents on these points. I find that they planted the bamboo for privacy and aesthetic reasons. I note, though, that it has grown higher than the labels indicated is typical.
The respondents acknowledge that the shed, which replaced a section of the bamboo, now also affords some privacy. However, they contend that the bamboo is still needed as a screen for some parts of their house including the entrance, and for the yard on the north westerly side of their property. They say this part of the yard is the area most used for recreation.
The applicants, on the other hand, contend that the shed now provides ample privacy for the respondents’ house. The applicants say that because of the shed they ‘can at most, see less than 5% of [the respondents’] actual house’.[3]
[3]Applicants’ submissions filed 12 June 2023, 2.
I am reliant on photographs, plans and descriptions produced by the parties from their individual perspectives. This material is not exhaustive. I do not have the benefit of detailed and independent survey evidence. Ideally, the arborist’s report would introduce reliable evidence on the topic but, as I have mentioned, Mr Gunter’s visit predated the shed. It is not possible on the available evidence to make accurate findings on whether the bamboo (as distinct from the shed) now provides significant screening for the respondents’ house. I am, however, satisfied that the remaining bamboo does provide screening at least for the northwestern portion of the respondents’ yard, which is an area used by the respondents for recreation.
There is dispute about the extent to which the bamboo can be trimmed while still affording reasonable privacy to the respondents. Mr Gunter proposed three metres above the level of the pavers surrounding the applicants’ pool.
The applicants would prefer that the bamboo be removed, but they do not dismiss the three-metre recommendation even though they say it involves compromise: it would mean the respondents ‘will still maintain 80% privacy … and we will regain, 50% of our views (with only the living area/deck etc. being considered)’.[4] The applicants also contend that the respondents’ privacy is diminished in any event by their own choices to rent out a level of their house and to conduct a business from home. They have also provided photographs of other surrounding houses showing the absence of substantial privacy screening, to make the point that many people have only partial privacy.
[4]Ibid.
The respondents say their preference would be to retain the bamboo as it is ‘for our privacy and the aesthetic design of our landscape’.[5] They say that three metres is not their desired height for privacy, but one they were willing to entertain as a compromise if the applicants were required to pay half the cost of trimming.
[5]Respondent’s submissions filed 21 July 2023, 2.
Mr Gunter has not explained in detail why he proposes three metres. It is not suggested that he carried out exhaustive measurements, or assessed the impact at every possible vantage point on each property. The land slopes in various directions, which adds to the difficulty of predicting the privacy impacts. However, the three-metre figure should be afforded weight as an on-site, rule-of-thumb evaluation by a neutral arborist with experience in addressing disputes between neighbours. I adopt it as a level which is likely to strike a reasonable balance between restoring the outlook from the applicants’ house and retaining privacy for the respondents, even though it may not achieve the full objectives of either household.
What orders, if any, should be made?
Bamboo is a tree for the purposes of the Neighbourhood Disputes Act.[6] It is undisputed that the bamboo rises more than 2.5 metres above the ground.[7] The tribunal can make orders it considers appropriate to remedy or prevent ‘substantial, ongoing and unreasonable interference with the use and enjoyment’[8] of the applicants’ land but only, in relation to the obstruction of a view, if the obstruction is a ‘severe obstruction of a view, from a dwelling on [the applicants’] land, that existed when the [applicants] took possession of the land’.[9]
[6]Neighbourhood Disputes Act, s 45(1)(b).
[7]This is a requirement before the tribunal can make an order: Neighbourhood Disputes Act, s 66(3)(a).
[8]Ibid, s 66(2)(b)(ii).
[9]Ibid, s 66(3)(b)(ii).
I should add that I am satisfied that preliminary requirements in section 65 of the Neighbourhood Disputes Act have been met. Specifically, firstly, the applicants have made a reasonable effort to reach agreement with the respondents. They have communicated several times over the years, and the parties did reach an agreement for pruning of the bamboo in the period 2018 to 2020. Subsequent communications, however, led to impasses mainly over who should be responsible and how frequently trimming should occur. There was increasing strain as time wore on, though to their credit the parties remained respectful. Secondly, it is not suggested that there is any ‘relevant local law, local government scheme or local government administrative process’[10] that the applicants could have availed themselves of in an effort to resolve the dispute. Thirdly, the applicants have met the requirements about giving notice of their application.
[10]Ibid, s 65(b).
Returning to section 66, the critical issues are whether there is a substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land, and whether there is a severe obstruction of a view that existed from the applicant’s dwelling when they took possession of their land in 2014. There is a substantial and ongoing interference with the use and enjoyment of the land because the applicants now have, from their living area deck at least, a view of a hedge rather than a much more pleasing vista across a landscape to the ocean. The interference is not only with enjoyment but also with use in that the obstruction of the view would affect, for example, whether the applicants choose to relax on the deck or whether they could sell their property for the optimal price.
Is it, however, an unreasonable interference, in circumstances where the respondents have grown the hedge not to spite the applicants but for privacy and aesthetic reasons?
The respondents planted a hedge which they believed, reasonably but mistakenly, would not substantially block the applicants’ view. They have been open to discussing trimming. However, the question of whether the interference is reasonable depends not on the reasonableness or otherwise of the respondents’ conduct but on the reasonableness or otherwise of the objective impact on the use and enjoyment of the land.
There is no right to a view under Queensland law.[11] The Neighbourhood Disputes Act does not create a right to a view but merely a statutory remedy which the tribunal may exercise on a discretionary basis.[12]
[11]Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247, [31].
[12]Ibid, [32].
The Human Rights Act 2019 (Qld) (‘Human Rights Act’) recognises property rights and privacy rights. A person must not be arbitrarily deprived of their property.[13] A tribunal order that a person remove or cut back trees on their property does not, of course, wholly deprive them of property, but it does interfere with their freedom to use their property as they wish. Of course, it could be argued that the blocking of a view interferes with the applicants’ right to use their property as they wish, but that argument would fail as property rights in Queensland do not include any right to a view.
[13]Human Rights Act, s 24(2).
A person also has the right not to have their privacy, family or home unlawfully or arbitrarily interfered with.[14] An order that has the effect of reducing the privacy of a family’s home and yard affects those rights.
[14]Ibid, s 25(a).
I am not persuaded by the applicants’ submission that the respondents’ privacy argument is diminished by other choices made by the respondents, concerning renting out a portion of their house and conducting a business from home. It is entirely understandable that the applicants do not wish to be overlooked by neighbours, whatever other choices they have made that impact on their privacy. Similarly, the fact that other houses nearby do not have complete privacy is irrelevant. That may reflect choices made by other residents to maximise views, or reflect preferences or a lack of options.
Property and privacy rights are relevant and important, whether or not I am bound to apply them. However, they are not conclusive. Limitations on these rights in this context would not be arbitrary because the limitations would result from a statutory process in which affected parties have participated. In any event, a right can be limited under law if the limitation is reasonable and demonstrably justified.[15]
[15]Ibid, s 13.
On balance, I consider that the current obstruction of the view is unreasonable in circumstances where trimming of the bamboo is likely to achieve the dual purposes of allowing the applicants to have their original view, or something close to it, and of affording the respondents adequate privacy.
I also consider that the obstruction is a severe obstruction of a view that existed from the dwelling when the applicants took possession of their land. The concept of severity was explored in Laing & Anor v Kokkinos & Anor (No 2).[16] The QCAT Appeal Tribunal suggested that ‘severe’ in this context means ‘considerable’.[17] It was noted that the impact of views may be quantitatively but, more importantly, qualitatively assessed, and that some types of views, such as water views, are especially valued.
[16][2013] QCATA 247.
[17]Ibid, [36].
It is apparent that the house on the applicants’ land is oriented to take advantage of the view toward the coast. The loss of a pleasant vista across a landscape and including distant ocean views, from at least many vantage points, is undoubtedly a severe obstruction of a view.
It is relevant to note that a tree-keeper is responsible for ensuring that the tree does not cause a substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land.[18]
[18]Neighbourhood Disputes Act, s 52(2)(c).
I have considered the various matters I am required or invited to consider under sections 71, 72 73, and 75 of the Neighbourhood Disputes Act. Of particular note I have taken into account:
(a)safety is the primary consideration, but there is no suggestion of danger associated with the existence of the bamboo, even in the event of extreme weather, or with the pruning of the bamboo;
(b)a living tree should not be removed or destroyed unless the issue cannot otherwise be satisfactorily resolved;
(c)the location of the bamboo in relation to the boundary and fence;
(d)it is not suggested that any consent or authorisation is required to carry out work on the bamboo;
(e)it is not suggested that anything else is contributing to the interference with the view;
(f)steps taken by the parties in the past to prevent or minimise the interference, which have been noted in these reasons;
(g)it is not suggested that this hedge of bamboo has any historical, cultural, social or scientific value; or that it makes a contribution to the local ecosystem and biodiversity; or that it makes any significant contribution to the natural landscape and the scenic value of the land or locality; or that it makes a contribution to public amenity; or that it contributes to the protection or revegetation of a waterway or foreshore;
(h)the bamboo contributes to the amenity of the respondents’ land particularly in relation to privacy and landscaping;
(i)while the respondents submit that the bamboo assists with soil stability, I consider that any such contribution could be easily replicated by other plantings if necessary;
(j)there is no evidence that the type of bamboo is classified as a pest or weed;
(k)the applicants’ land is 1015 square metres in area; and
(l)the bamboo did not exist when the applicants acquired their property.
There is no evidence of any likely adverse impact on the bamboo by pruning it. I note that Mr Gunter recommends ‘regular trimming (e.g. every 3 months in the summer, every six months in the winter depending upon extent of growth)’.[19] The respondents contend that less frequent trimming, such as every two years, would be desirable. They point to literature indicating that a culm will not regrow when cut. However, bamboo is known to be a fast-growing plant. When some culms are cut, presumably other culms shoot up. I place reliance on Mr Gunter’s estimate, as an experienced arborist, of the likely frequency of trimming that would be needed to contain the hedge to three metres most of the time.
[19]Mr Gunter’s report, 7.
The tribunal may make the orders it considers appropriate. Examples given in section 66(5) of the Neighbourhood Disputes Act show that possible orders would include ones requiring the respondents to carry out work, allowing the applicants to carry out work, and requiring either party to pay costs associated with carrying out an order.
I have given serious consideration to orders allowing the applicants to carry out trimming, with any expense to be borne by them. This approach would acknowledge the absence of any right to a view, and reflect the fact that the applicants but not the respondents derive benefit from trimming. However, I have decided against that approach because it would undermine the obligation placed by the Act upon the respondents, as tree-keepers, to ensure that trees do not cause substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land.
I will order that the respondents trim the hedge, to the recommended three metre level, at certain intervals: once within the next few months, and then twice per year. This is less frequently than is recommended by Mr Gunter. The more frequent trimming recommended by Mr Gunter would serve to contain the hedge at the recommended height most of the time but it would be onerous on the respondents. To order trimming at that frequency would be somewhat akin to treating the applicants as if they had a property right in the form of an easement enforceable against the respondents.
In all of the circumstances, I consider that requiring the respondents to trim twice per year is fair.
The respondents have mentioned several times in their material that the boundary slopes downward as it goes northward, perhaps implying that they believe that this should have a bearing on the level of any trimming. However, I consider it desirable to define the level by reference to the pavers, with the intention that this level be maintained horizontally along the hedge regardless of any slope. This is appropriate because the view in question is from the applicants’ house, which of course does not slope.
Conclusion
The orders I am making are intended to strike a balance between the competing interests of the parties. I note that the orders will lapse after ten years.[20] It may be necessary for the respondents, or any arborist or tree lopper engaged by them, to go into the applicants’ yard to carry out some of the trimming. It is not necessary to make an order that the applicants allow access, because the Neighbourhood Disputes Act in section 94 provides for a right of entry in such circumstances.
[20]Neighbourhood Disputes Act, s 78(1).
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