Werndly v Orchard

[2014] QCAT 377

CITATION: Werndly & Ors v Orchard [2014] QCAT 377

PARTIES:	Mr Brian Werndly Mrs Anne Werndly Mrs Clem Sutherland (Applicants)
v
Mr Timothy Orchard Mrs Christine Orchard (Respondents)

APPLICATION NUMBER: NDR012-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 21 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Mr and Mrs Orchard must pay to Mr and Mrs Werndly and Mrs Sutherland costs in the sum of $8,341.49 within 14 days of the date of this order.

CATCHWORDS:

Costs – where application for the removal of trees due to loss of view – original decision appealed and further directions for filing of material made – tree-keeper had commenced development process which led to the removal of the trees after applicant had filed further material – tree-keeper made offer to settle at time when development application on foot – applicant claimed costs on basis of unnecessary disadvantage

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102, 105 and 107

McEwen v Barker Builders Pty Ltd [2010] QCATA 49

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 (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs Werndly and Mrs Sutherland own properties located behind that of Dr and Mrs Orchard at Buderim.  Over the years since the purchase of their respective properties they allege that the trees growing on the Orchards’ property have grown to obstruct their views of the surrounding landscape and as a result made application to the Tribunal for orders to deal with the trees.

2. A decision was made in the Orchards’ favour by a Tribunal member on 26 November 2012.  The Werndlys’ and Mrs Sutherland appealed that decision and Justice Wilson, the then president of the Tribunal allowed the appeal on 16 May 2012 and remitted the matter back to the Tribunal for hearing by a different member or adjudicator.  Directions were made by Justice Wilson that before the next hearing an inspection of the applicants’ properties be conducted and an expert’s conclave be conducted by a member of the Tribunal.  There was no order as to costs made in regard to the appeal.

3. The Tribunal made directions on 18 June 2013 for the filing of any further statements by the Werndlys’ and Mrs Sutherland by 12 July 2013 with Dr and Mrs Orchard to file their statements by 26 July 2013.  An expert’s conclave was listed for 6 September 2013 and a site inspection and then hearing on 11 October 2013.

4. Butler McDermott Lawyers, for the applicants, filed their material as required under the directions on 12 July 2013 with some further material on 22 July 2013.

5. The Tribunal received correspondence from Schultz Toomey O’Brien, lawyers for the Orchards, on 22 July 2013 advising of a very significant change in circumstances which needed to be brought to the attention of the Tribunal and the applicants.

6. That is that the Sunshine Coast Regional Council had on 18 July 2013 issued an approval to the Orchards’ private certifier for an extension and renovation which resulted in building works being able to commence immediately.  A construction contract had been signed and a number of trees had been removed, including the mango tree which it was said seems to have been of greatest concern to the applicants.  It was said that,

   given that the trees have largely been removed; it might obviate the need for the application to proceed at all.  It may be that the Applicants, upon seeing that the majority of the vegetation that concerned them has been removed, may not wish to persist with the application at all.

7. After a series of correspondence between the parties and the Tribunal a directions hearing was set down for 21 August 2013 and at that hearing it was ordered by consent that the application be dismissed with costs reserved for each party and with each party to provide submissions in regard to costs by 5 September 2013.

8. The Werndlys’ and Mrs Sutherland submit that all of their costs in the application including the appeal should be paid by the Orchards.  The Orchards knew that the subject trees were to be removed before their application was lodged and they knowingly withheld information from the Tribunal and from the applicants for almost two years.  They had plans drawn dated September 2011 which pre-dated the filing of the application.  It was clear from the Orchards’ lawyer’s correspondence that the Orchards had intended to extend their home since 2007 and the Orchards’ would have been well aware that these extensions required the removal of the trees.  The development application in respect of the extension was filed on 8 March 2013.  While the Orchards offered to remove the mango tree on 5 June 2013, this date is after they began their development process so the mango tree was to be removed anyway.  They describe this offer as an attempt by the Orchards to give the Tribunal the impression they were genuinely trying to resolve the situation.  The Orchards then waited to remove the trees until after the applicants had prepared further evidence and filed all of their material in accordance with the Tribunal’s directions dated 18 June 2013.

9. The Werndlys’ and Mrs Sutherland claimed the following costs in respect of the application:-

   a)    Tribunal application fee  $265.00

   b)    Appeal fee  $500.00

   c)    Audio CD for transcript   $85.00

   d)    Transcript cost  $299.00

   e)    Imagery from council  $64.00

   f)     Arborist’s report  $960.00

   g)    Butler McDermott Lawyers 15 January 2013                   $1,000.00

   h)    Butler McDermott Lawyers 20 March 2013  $7,998.98

   i)     Butler McDermott Lawyers 22 May 2013  $3,934.50

   j)     Butler McDermott Lawyers19 September 2013              $8,341.49

   Total  $23,447.97

10. Mr and Mrs Orchard rejected that they had in anyway misled the Tribunal or the applicants or that they had acted to the disadvantage of the applicants by proceeding with the application.  They say the only disadvantage that has been caused to the parties is that caused by the applicants.  It was the applicants’ own conduct which has caused the disadvantage to themselves and also to the respondents as result of the original decision being overturned on appeal and the parties once again being put to the expense of gathering further evidence and incurring costs.

11. They cannot be criticised for the timing of the clearing of a number of trees to allow for any extension as that could not have occurred until council approved the plans and they decided to commit the necessary funds to undertake he building work.  They acknowledged that the dispute was reasonably complex however their request for legal representation was denied and in those circumstances the Tribunal has presumably already determined that the dispute was not sufficiently complex to warrant legal representation.  They alleged, they had been subject to harassment, bullying and vandalism by the Werndlys for which they sought legal advice and from then all correspondence had to be through their solicitors.

12. Two offers had been made to the applicants the last being in June 2013. The Orchards offered to remove the mango tree (the applicants’ main cause of concern) completely, giving the applicants a view outcome far greater than recommended by the Tribunal tree assessor.  As there appeared to be no end in sight to this prolonged dispute, the Orchards decided to press on with their house plans for the next stage of their development that had been put on hold.

13. The decision by the applicants to incur legal costs is counter to their submissions in regard to the Orchards’ application for legal representation and the use of lawyers by the applicants meant that they were able to introduce a large amount of new evidence that would have been available at the first hearing if they had been more diligent.

14. The timing of the tree removal was a result of the Orchards waiting on the Sunshine Coast Regional Council to assess and approve the plans for the extension and unless this approval was to hand it would have been presumptuous to remove the trees but as soon as the approval was issued, 8 July 2013, not only were the trees removed but 15 others for the sole benefit of the applicants.  The Orchards’ solicitor notified the applicants and the Tribunal at the earliest possible time of the change of circumstances.

15. The Orchards had made reference on a number of occasions in their initial response and at the hearing in November 2012 that they had an “as of right” entitlement to build 10 metres height across their land.  In making these references the aim was to make the applicants and the Tribunal aware that there is more than one way to lose a view and the NDR Act only allows a remedy with regard to vegetation.

16. The reason for the timing is simply because the Sunshine Coast town plan is under review and the Orchards were advised that if they didn’t go ahead before the imminent change is enacted they would lose the 10 metre height allowable currently which would have meant they could not proceed.

17. The Orchards thought long and hard about declaring their intention to build in their response to the application but decided not to as they feared such a declaration may have been interpreted by the Tribunal as a threat rather than a fact.  Apart from that until the approval for construction it wasn’t anything more than a plan and they had no certainty that the development would go ahead.

18. It was the applicants’ choice to engage legal assistance for the appeal and in so doing they must have decided the costs incurred were worth an anticipated better outcome than initially.  It could certainly be contended that as the outcome to the applicants as far as trees is concerned is a vastly better view that they have ever had that this “investment” in legal representation has been worth their while.

19. The applicants were clearly unreasonable in not accepting the offer to settle made on 5 June 2013 and this has put the Orchards to unnecessary costs.  The Orchards have done nothing wrong and it is the actions of the applicants which have resulted in the Orchards incurring considerable costs and they are now expecting financial immunity from the consequences of their own choices.  The order that should be made is that the respondents should not pay the applicants costs but they should pay the Orchards’ costs, on the basis of the offer to settle not being accepted[1].

    [1]QCAT Act s 105 and Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) r 86.

20. The construction contract is dated 11 July 2013 and subject to development approval.  The development approval was issued by Brett England on 13 August 2013 in accordance with his letter and the decision notice.  There was no such document as a development application as a different process was gone through and the relevant date in the absence of a development application is the date of the building approval.

21. If costs are awarded against the Orchards it should be on the standard basis and not the indemnity basis as it would not be reasonable, in that regard the Orchards total legal costs were $4,325 and they would expect to recover no more than 60% of them.

22. The Orchards have sought to rely on correspondence from Mr Brett England, certifier in regard to the relevant dates in this matter.  Mr England set out the dates for the stages of the building application as follows:-

    a)    date I was engaged as the private certifier for the relevant development: 8 March 2013;

    b)    date the application was deemed to be properly made: 28 June 2013;

    c)    date preliminary building application was submitted to the Sunshine Coast Regional Council: 28 June 2013;

    d)    date building development permit was issued: 13 August 2013.

23. Mr England stated that ‘from our discussion I understand that clarification is required regarding the date where building work was able to lawfully commence.  In this regard, the date that the building development permit was issued is the relevant date.  The other dates are simply stages within the approval process that lead to the development permit being issued.’

24. The Tribunal may make an order for the payment of costs in an application if it is in the interests of justice to do so[2] or where in certain circumstances an offer has not been accepted.  In determining the interests of justice the Tribunal may amongst other matters have regard to whether a party is acting in a way that unnecessarily disadvantages another party in determining the interests of justice.  That phrase is not defined and confers a broad discretionary power on the decision-maker[3]. In accordance with s 100 of the QCAT Act each party to an application must otherwise bear their own costs. The starting point is then that each party must bear their costs and this presumption must be displaced if it is in the interests of justice to do so[4].

    [2]QCAT Act s 102.

    [3]McEwen v Barker Builders Pty Ltd [2010] QCATA 49 at [13] per Wilson J.

    [4]Ibid.

25. The Orchards have requested that the Tribunal give consideration to them being awarded their costs in the application and that the applicants not obtain their costs on the basis that an offer they made to remove one tree, the mango tree, was not accepted and the outcome has been more advantageous to the applicants in that 25 trees were removed[5]. The removal of the majority of these trees was as a result of the Orchards obtaining building approval for an extension on their property and was not done by order of the Tribunal or to provide the applicants with the outcome they desired, which was that they have the view which they say they had lost returned.  The removal of any trees per se was not going to provide the outcome which the applicants wanted if they were to be replaced by a structure which also took away the view.

    [5]QCAT Act s 105; QCAT Rules r 86.

26. This offer in accordance with the evidence of the applicants which is corroborated by the statement from Mr England was made after the date the development process in respect of the extension began. The Orchards have at no stage said that if this offer was accepted they would not continue with the development of their land which required many further trees to be removed.  The Tribunal is not satisfied that in the circumstances where the Orchards have commenced a development process which will replace the trees obstructing the view with a new structure obstructing the view which was not disclosed to the applicants that they should get any advantage from making an offer to settle.

27. The Orchards are right to say that outside of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 there is no right to a view and the Tribunal accepts that they put both the Tribunal and the applicants on notice that they had an as of right entitlement to build to 10 metres height in the place where the trees were located. The fact that the Orchards defended the appeal and appeared at the initial direction hearing following the appeal where directions were made for the submission of further material and for an expert’s conclave, inspection and hearing would tend to indicate that they intended to ensure that the trees were preserved unless the Tribunal ordered otherwise. Whereas they had begun a process which culminated in building approval and the removal of the trees to enable an extension of the house.

28. It is clear from the letter of Mr Brett England that the development approval process commenced on his appointment on 8 March 2013 as was indicated in the material filed by the applicants from the Sunshine Coast Regional Council which shows an application for a building addition on that date.  For this reason the Tribunal does not accept the alternative dates submitted by the Orchards as being the relevant dates for the development application.  The relevant date is the date that the process began which is 8 March 2013.

29. The Orchards have stated that they did not advise the Tribunal and the applicants sooner of their intention in regard to the development of the land as they did not want it to be perceived as a threat and they were concerned about the response of the applicants.

30. The Tribunal notes that the Orchards had an as of right entitlement to build to 10 metres and that once they had committed to a development process there should not have been any issue with council approval.  For that reason as soon as the process commenced, that is 8 March 2013 the Orchards should have notified the applicants and the Tribunal of their intentions.  It is clear that the trees in question were only subject to this application because they were allegedly interfering with the applicants’ view. If that view was to be lost for another reason such as the construction of an addition to the Orchards’ property it would clearly make the continuing by the applicants with the application untenable.

31. The applicants have claimed all of their costs, which includes the costs of the appeal against the original decision.  It is not for the Tribunal to deal with costs in respect of an appeal.  The Tribunal is satisfied that in not notifying the applicants of the development application of 8 March 2013 the Orchards unnecessarily disadvantaged the applicants.  The Tribunal is satisfied that it is in the interests of justice to require the Orchards to pay the applicants’ costs incurred in regard to this application as from that date and as the costs have only been incurred due to the failure of the Orchards to advise the Tribunal and the applicants sooner the costs may be assessed on the indemnity basis.

32. The Tribunal is required when it makes a cost order to fix the costs if possible[6].  It is noted that the costs have already been assessed by Ryan Cost Consultant.  The costs which will be allowed are those costs in the primary application as from 8 March 2013, until that date there is no evidence before the Tribunal that the Orchards had committed themselves to the house extension process.  The appeal file has been perused and all of the pleadings in respect of that matter were filed prior to 30 April 2013 and the decision was made on the papers any cost in respect of the matter after that date are clearly for the primary application.  The costs in question are those set out in Butler McDermott Lawyers tax invoice of 19 September 2013 in the amount of $8,341.49.

    [6]QCAT Act s 107.

33. Mr and Mrs Orchard must pay to Mr and Mrs Werndly and Mrs Sutherland costs in the sum of $8,341.49 within 14 days of the date of this order.