Werndly v Orchard
[2013] QCATA 149
•16 May 2013
| CITATION: | Werndly v Orchard [2013] QCATA 149 |
| PARTIES: | Brian Werndly Anne Werndly Clem Sutherland (Applicants/Appellants) |
| v | |
| Christine Orchard Timothy Orchard (Respondents) |
| APPLICATION NUMBER: | APL438-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 16 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The Tribunal’s decision of 26 November 2012, dismissing the application for a tree dispute, is set aside. 4. The application for a tree dispute is remitted to the Tribunal at Maroochydore for hearing by a different Member or Adjudicator. 5. Before the next hearing, an inspection of the applicants’ properties be conducted. 6. Before the next hearing, an experts’ conclave be conducted by a Member of the Tribunal. |
| CATCHWORDS: | APPEAL – TREE DISPUTE – where the respondents’ trees obstructed the views from the applicants’ dwellings – where the Tribunal found the interference was not a severe obstruction – where the Tribunal found there was not a substantial, ongoing and unreasonable interference to the use and enjoyment of the applicants’ land – where the applicants seek leave to appeal that decision – whether leave to appeal should be granted PRACTICE AND PROCEDURE – NATURAL JUSTICE – where the Tribunal appointed a tree assessor to produce a report – where the respondents were granted leave to submit an additional arborist report – where QCAT Practice Direction No 5 of 2011 provides that an expert who produces a report is required to attend an experts’ conclave with the appointed tree assessor – where the Tribunal did not convene an experts’ conclave – where respondents’ arborist led evidence at the hearing in the absence of the appointed tree assessor – whether the Tribunal’s non-compliance with the practice direction amounts to a breach of natural justice Neighbourhood Disputes Resolution Act 2011 (Qld), s 46, s 61, s 66(2)(b)(ii), s 66(3), s 72, s 73, s 75 QCAT Practice Direction No 4 of 2009 Werndly and Ors v Orchard and Anor [2012] QCAT 599, cited |
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.
REASONS FOR DECISION
On 25 November 2011, Brian and Anne Werndly, and Clem Sutherland brought an application for a tree dispute against Timothy and Christine Orchard.
The application was made under Chapter 3, Part 5 of the Neighbourhood Disputes Resolution Act 2011 (as it then was)[1] seeking orders for the removal or pruning of some of the trees in the Orchards’ backyard, on the basis that they obstruct views of the ocean, Mount Coolum and the Maroochydore River from the dwellings of the Werndlys and Mrs Sutherland.
[1]The Neighbourhood Disputes Resolution Act 2011 (‘NDR Act’) was amended by the Classification of Computer Games and Images and Other Legislation Amendment Act 2013, renaming it the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Background
The Werndlys, owners of 23 Gilbert Street, and Mrs Sutherland, owner of 21 Gilbert Street, took possession of their properties in February 2000 and January 1997, respectively. In January 2000, the Orchards purchased a neighbouring property to the north at 24-26 Moorabinda Street.
In the originating application, the Werndlys and Mrs Sutherland claimed that since taking possession of their properties, the neighbouring trees on the Orchards’ property had grown significantly and caused a substantial, ongoing and unreasonable interference with the use and enjoyment of their land. In particular, the Werndlys and Mrs Sutherland claimed the neighbouring trees now formed a severe obstruction to views that existed when they purchased 23 and 21 Gilbert Street, respectively.
Since becoming neighbours, the parties have had a number of disagreements regarding the common boundary of their properties. As early as August 2002, the Werndlys took issue with the trees in the backyard of the Orchards’ property, which they claimed ‘impinged on [their] views over the last two years.’
In accordance with Practice Direction No 5 of 2011 (‘PD 5’),[2] Benjamin Inman was appointed as an assessor to carry out an inspection of the trees at 24-26 Moorabinda Street. Following the inspection on 4 February 2012, Mr Inman prepared a Tree Assessment Report (‘the Report’) to determine and specify appropriate actions, if any, that might lead to the efficient and fair resolution of the tree dispute.
[2]Queensland Civil and Administrative Tribunal, Practice Direction No 5 of 2011 – Arrangements for applications for orders to resolve other issues about trees, 27 October 2011, 2(a)(i).
The Report states that there were approximately ‘10 trees/palms affecting the view of the applicants [sic] property.’ Regarding those trees, Mr Inman found that they ‘appeared to have good structural integrity with good health and vigour’; but did ‘not appear to have any historic, cultural, social or scientific values attached to them.’
While Mr Inman found the Orchards’ trees had ‘grown to obstruct the views of both the applicants’, the Report shows he could not determine to what extent the views has been obstructed since Mrs Sutherland and the Werndlys took possession of their properties. Following this conclusion, Mr Inman recommended the removal and replacement of a number of trees, and the thinning and hedging of others, in order to ‘provide a solution to both parties without being too onerous [on the Orchards’] shade and landscape values.’
On 15 March 2012, the Tribunal proposed a number of orders to give effect to Mr Inman’s recommendations. The parties did not consent and the matter was listed for hearing.
Legal framework
Section 61 of the NDR Act provides that the Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application, land is affected by the tree.
Land is considered to be affected by a tree at a particular time if it caused, is causing, or is likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[3] In such cases, the Tribunal may make the orders it considers appropriate to remedy, restrain or prevent the interference.[4]
[3]NDR Act s 46(a)(ii)(C).
[4]Ibid s 66(2)(b)(ii).
It is not the intent of the NDR Act to provide an applicant with greater views than what existed when they purchased their property. This principle is put into effect so that as far as an interference relates to one that is an obstruction of a view, the Tribunal may only make orders if: the tree rises at least 2.5 m above the ground; and, 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.[5]
[5]Ibid s 66(3).
When deciding an application for an order under s 66 of the NDR Act, the Tribunal must consider the general matters listed in s 73, and the principle that the removal or destruction of living trees should be avoided, ‘unless the issue… can not otherwise be satisfactorily resolved.’[6] Similarly, alternatives to removal should be considered, for instance, pruning.[7] Sections 75 refer to additional matters the Tribunal may consider if a neighbour alleges a tree has caused, or is causing, an unreasonable interference with the use and enjoyment of the neighbour’s land.
[6]Ibid s 72.
[7]Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) 36.
Application for a Tree Dispute
The matter was heard by a Tribunal Member in Maroochydore on 16 November 2012.
The main issue for the Tribunal was whether the Orchards’ trees caused a severe obstruction of a view from the dwellings on Mrs Sutherland and the Werndlys’ properties that existed when they took possession of the land.
On 26 November 2012, the matter was decided: the application was dismissed upon the undertaking of the Orchards removing a Privet tree from their yard. The learned Member held that while the neighbouring trees were an ongoing obstruction to the applicants’ views, the trees could not be regarded as having severely obstructed the views that existed when the applicants took possession of 21 and 23 Gilbert Street.[8]
[8]Werndly and Ors v Orchard and Anor [2012] QCAT 599 at [72]–[76].
The learned Member also held:
[I]f the Tribunal had found the trees to be a substantial, ongoing and unreasonable interference, after taking into account section 72 and the section 73 and 75 considerations, it would have declined to make the orders requested by the Applicants.[9]
[9]Ibid [103].
Appeal
The Werndlys and Mrs Sutherland seek leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
The grounds for leave to appeal are, broadly speaking, that the learned Member erred in deciding to dismiss the application by failing to properly consider and apply the evidence; and, that in conducting the proceeding, the Tribunal did not comply with the practices and procedures it adopts when parties propose to call expert evidence.
It is unnecessary to consider the first ground because, for reasons which follow, I am persuaded that the second must succeed.
Practice directions are made where the practices and procedures of the Tribunal are not provided for, or not sufficiently provided for, in the QCAT Act, an enabling Act or the QCAT rules.[10] PD 5 and the relevant provisions of Practice Direction No 4 of 2009 (‘PD 4’)[11] apply when parties seek leave to produce further expert evidence in proceedings brought under Chapter 3 Part 5 of the NDR Act.
[10]QCAT Act s 226.
[11]Queensland Civil and Administrative Tribunal, Practice Direction No 5 of 2009 – Expert Evidence, 11 November 2009.
PD 5 provides that following the receipt of the report from the assessor appointed by the Tribunal,[12] no party will be allowed to produce further expert evidence on the same issues covered in the report without the leave of the Tribunal.[13] Here, after a directions hearing on 4 September 2012, the Orchards were granted leave to produce the report of Brendan Martin, an arborist employed by them.
[12]Here, Benjamin Inman; see paragraph [6] of the reasons for decision, above.
[13]Queensland Civil and Administrative Tribunal, Practice Direction No 4 of 2009 – Arrangements for applications for orders to resolve other issues about trees, 27 October 2011, 4(b).
PD 5 relevantly provides:
Any expert who produced a written report will be required to attend an experts’ conclave with the assessor and the relevant provisions of the QCAT Practice Direction No 4 of 2009 will apply.[14]
[14]Ibid 4(d).
Similarly, PD 4 states:
All experts engaged for a hearing must attend a conclave convened by a member, adjudicator or the principal registrar. The purpose of the conclave is to identify and clarify areas of agreement and disagreement amongst the experts on any issue in dispute, and the reasons for any disagreement. [15]
[15]Queensland Civil and Administrative Tribunal, Practice Direction No 5 of 2009 – Expert Evidence, 11 November 2009, 5.
The practice of experts attending a conclave is directed to the objects of the QCAT Act: ‘to have the Tribunal to deal with matters in a way that accessible, fair, just, economical, informal and quick’.[16] To achieve this object, the Tribunal must ‘ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as consistent with achieving justice’.[17]
[16]QCAT Act s 3(b).
[17]Ibid s 4(c).
At the hearing, the learned Member allowed the Orchards to call Mr Martin to give evidence in the absence of Mr Inman, the Tribunal’s appointed tree assessor.[18] The Tribunal erred in not convening a conclave with Mr Inman and Mr Martin to identify what matters they agree upon, what matters they disagree about, and the reasons for their disagreement. With respect, in the absence of that conclave, the learned Member should not have allowed Mr Martin to give evidence at the hearing.
[18]Transcript of Proceedings, Werndly and Ors v Orchard and Anor (Queensland Civil and Administrative Tribunal, NDR012-11, Barry Cotterell, 16 November 2012) 36.
In conducting a proceeding, the Tribunal:
[I]s not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures…[19]
[19]QCAT Act s 28(3)(b).
It must, however, act fairly and according to the substantial merits of the case, and observe the rules of natural justice – while, also, acting with as little formality and technicality and with as much speed as matters permit.[20] The Tribunal must also ensure, ‘so far as is practicable, that all relevant material is disclosed to it to enable it to decide the proceedings with all the relevant facts.’[21]
[20]Ibid s 28(3)(a), (d).
[21]Ibid s 28(3)(e).
In making a decision based upon the evidence of Mr Martin, the learned Member breached PD 4 and PD5, and the principles of natural justice.
It inevitably follows that leave to appeal must be granted, the appeal allowed, the orders made herein on 26 November 2012 set aside, and the matter remitted to the Tribunal at Maroochydore for hearing. In all the circumstances, it is better that the rehearing be presided over by a different Member or Adjudicator.
I have read the transcript and appreciate the difficulty faced by the applicants to produce evidence that shows what views existed when they took possession of their properties 13-16 years ago. Therefore, in the interest of ensuring these already protracted proceedings are conducted in a way that is as quick as is consistent with achieving justice, I believe there is some merit in also making orders to the effect that, before the next hearing, an inspection of the applicants’ dwellings be conducted by the presiding Member or Adjudicator; and, an experts’ conclave be called to clarify the issues in dispute.
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