Werndly v Orchard
[2012] QCAT 599
•26 November 2012
| CITATION: | Werndly and Ors v Orchard and Anor [2012] QCAT 599 |
| PARTIES: | Brian Werndly Anne Werndly Clem Sutherland |
| v Timothy Orchard Christine Orchard |
| APPLICATION NUMBER: | NDR012-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 16 November 2012 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Barry Cotterell, Member |
| DELIVERED ON: | 26 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal accepts the undertaking given by Timothy and Christine Orchard to remove the Privet tree within four weeks and notes that they may replace it with a suitable tree. 2. The application is otherwise dismissed. |
| CATCHWORDS: | TREE DISPUTE – assessing the view involves the totality of the outlook from the dwelling – severity of obstruction then considered – what is unreasonable interference – other considerations involve balancing interests Neighbourhood Disputes Resolution Act 2011, ss 42, 45-48, 65, 66, 72, 73, 75 Trees (Disputes Between Neighbours) Act 2006 (NSW), s 14 Haindl v Daisch [2011] NSWLEC 1145 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Brian and Anne Werndly and Mrs Clem Sutherland |
| RESPONDENT: | Timothy and Christine Orchard |
REASONS FOR DECISION
This application is brought by Brian and Anne Werndly (the Werndlys) and Mrs Clem Sutherland (Mrs Sutherland) (the Applicants) against Timothy and Christine Orchard (the Orchards) under the Neighbourhood Disputes Resolution Act 2011 (the Act) which came into effect on 1 November 2011.
The trees in the application meet the definition in section 45 of the Act.
The trees are on land described in sections 42(1) and (2) and the exceptions in (3) and (4) do not apply.
The Orchards are the tree keeper as defined in the Act.
The trees are definitely situated in the tree keeper's land: s 47.
The tree keeper falls within the definitions in s 48.
The Werndlys and Mrs Sutherland are the Orchards’ neighbours under the Act.
The processes under part four are not available to the neighbour (see the examples under section 59).
The trees referred to in the application were not numerically or individually identified but were referred to as “non-native or weeds or pest species”. As part of the process of dispute resolution the Tribunal ordered a report from a Mr Benjamin Inman, a certified arborist, (Mr Inman) and this report identified trees and palms which are located on the Orchards' land of which he says:
“...there appears to be approx 10 trees/palms affecting the view of the applicants properties. All of these trees All of these trees/palms are located along the rear boundary of the respondents property and are listed in order from the western side to the eastern side. (see Appendix B. Photos 1, 2 & &)."
Mr Inman identified the trees as follows:
1x Ligustrum sinense (Chinese Privet), 7m (H), 400mm (DBH), 6m (W).
1x Livistona australis (Cabbage Palm), 8m (H), 250mm (DBH), 6m (W).
1x Mangifera indica (Mango), 9m (H), 700mm (DBH), 10m (W).
1x clump of Oypsis lufescens (Golden Cane), 4.5m (H), 4m (DBH of the entire clump), 4m (W).
1x Livistona australis (Cabbage Palm), 9m (H), 300mm (DBH), 6m (W).
1x clump of Dypsis lufescens (Golden Cane), 5m (H), 6m (DBH of the entire clump), 6m (W).
4x Syzygium australe (Brush Cherry or Lilly Pilly), 4m (H), 50mm (DBH), 5m (W) as a group.
Mr Inman also provided the Tribunal with the following plan of the Orchards’ property showing and numbering the trees.
The Orchards' house is unusual in that location as it runs east/west across the block whereas the Applicants' houses run north/south on their blocks. This has resulted in the Orchards planting trees to the rear of their house.
This can be seen by the following photograph taken from the air showing both the Applicants’ and the Respondents’ houses. Gilbert Street is at the bottom of the photograph and Moorabinda Street is under the word “Overview”.
The applicant Werndlys’ property is to the bottom right (South) in the photograph and the Sutherland property at the bottom left. The Orchards’ property is marked “R”.
The 14 trees are identified by type as follows:
Tree 1 – Alexandra Palm
Tree 2 – Cabbage Palm
Tree 3 – Cabbage Palm
Tree 4 – Golden Cane Palm
Tree 5 – Mango Tree
Tree 6 – Cabbage Palm
Tree 7 – Privet Tree
Tree 8 – Date Palm
Tree 9 – Cabbage Palm
Tree 10 – Alexandra Palm
Tree 11 – Alexandra Palm
Tree 12 – Cabbage Palm
Tree 13 – Tree Fern
Tree 14 – Cabbage Palm
At the end of the hearing the Applicants sought the following orders:
i)The trees that we wish to be removed are numbered 3, 5, 6, 7, 9, 12 and 14 in the documents provided by the applicants in their response to our application. In particular, the Mango tree must be removed to provide an acceptable outcome for us. The suggestion by the arborist that the Mango be 'thinned out' is not acceptable as it will still block our views.
ii)In his report, the arborist has suggested the thinning out of some other plants such as the Golden Cane Palms. This is acceptable to us (the Applicants) as we might then be able to see a bit of the view through them.
iii)There are a number of trees that have been suppressed by the Chinese Privet. These include a Peppercorn tree and 1 or more lillypillys. Once the Privet has been removed, we would need reassurance that these other trees would not be allowed to grow up in its place and again block the view.
iv)There are a number of lillypilly trees along the rear boundary of the respondents property that would need to be hedged to the same height as the privacy screen, as outlined in the arborist report.
During submissions the Orchards gave the Tribunal an undertaking that they would remove the Privet Tree within four weeks.
Mr Inman went on to say:
“All of the trees/palms appear to have good structural integrity with good health and vigour.
These 10 trees do not appear to have any historic, cultural, social or scientific values attached to them.”
It should be noted here that none of the branches of the trees overhang the Applicants’ properties and none of the trees are alleged to have caused, is causing, or is likely within the next 12 months to cause—
(A) serious injury to a person on the land; or
(B) serious damage to the land or any property on the land of the Applicants. See section 46 (a).
The Applicants must show, for their claim to succeed, that the trees are a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land therefore bringing the claim within section 46(a)(C) of the Act.
Having considered section 42 of the Act the Tribunal is satisfied that all of trees are trees to which chapter 3 of the NDR Act apply.
The Applicants say the trees cause substantial ongoing and unreasonable interference with their use and enjoyment of their land because they severely obstruct their view which existed when they took possession of their land.
The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land under section 66 of the Act which states the following:
66 Orders QCAT may make
(1) Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.
(2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a) …or
(b) to remedy, restrain or prevent—
(i) …
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
(3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of … a view only if—
(a) the tree rises at least 2.5m above the ground; and
(b) the obstruction is—
(i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
(ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
The Tribunal is precluded from making any orders in relation to a tree under Chapter 3 of the NDR Act unless the requirements of section 65 of the Act are met. Here, those issues are uncontroversial and the Tribunal finds that it has the power to make an order under section 66 of the Act.
However, in considering making an order under section 66 the Tribunal must consider section 72 which states the following:
72 Removal or destruction of living tree to be avoided
A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
As the Applicants are seeking the removal of 7 trees, all of which on the evidence “appear to have good structural integrity with good health and vigour”, the Applicants must overcome the limitation of section 72.
The Tribunal must also consider sections 73 and 75 which state the following:
73 General matters to consider
(1) QCAT must consider the following matters—
(a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
(b) whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;
(c) whether the tree has any historical, cultural, social or scientific value;
(d) any contribution the tree makes to the local ecosystem and to biodiversity;
(e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
(f) any contribution the tree makes to public amenity;
(g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h) any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i) any risks associated with the tree in the event of a cyclone or other extreme weather event;
(j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;
(k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
(2) …
(3) For this Act, no financial value or carbon trading value may be placed on a tree.
75 Other matters to consider if unreasonable interference alleged
If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—
(a) anything other than the tree that has contributed, or is contributing, to the interference; and
(b) any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
(c) the size of the neighbour’s land; and
(d) whether the tree existed before the neighbour acquired the land; and
(e) for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.
The Issues for Determination
However, before the Tribunal makes an order under section 66 it must determine whether or not sub-section 66(2)(b)(ii) applies and then, because the interference is said to arise from the obstruction of a view, whether or not the obstruction is a severe obstruction of a view, from a dwelling on the neighbour’s land, a view that existed when the neighbours took possession of their land.
What constitutes substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land in relation to a view and what is a severe obstruction of a view?
By s 46 the Tribunal is required to determine if land is affected by a tree at a particular time. It is required to consider the interference at the date of the application and going forward by 12 months because of sub-section 46(a)(ii).
Unfortunately, the Act gives the Tribunal and the parties no assistance in relation to the matter of interference but further complicates the issue by extending the view to that which existed when the neighbour took possession of the land. It only limits the view to that from a dwelling on the neighbour’s land.
The Tribunal considers that nothing turns on the fact that between 2000 when the Werndlys took possession of their land and now they have demolished the dwelling and built the present dwelling. However, this did affect the photographs taken by the Werndlys and was the cause of complaints and objections by the Orchards as to the accuracy of what they purported to represent.
Legislation of this nature is relatively recent in Queensland. The Act was modelled, in part, on the New South Wales Trees (Disputes Between Neighbours) Act 2006 (NSW). Section 14D of the New South Wales Act provides:
Jurisdiction to make orders
14D Jurisdiction to make orders
(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:
(a) sunlight to a window of a dwelling situated on the applicant’s land, or
(b) any view from a dwelling situated on the applicant’s land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned.
(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following:
(a) require the taking of specified action to remedy the obstruction of sunlight or of a view,
(b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view,
(c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape,
(d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree,
(e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a),
(f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view,
(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land),
(h) require the payment of costs associated with carrying out an order under this section.
(3) However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation.
Whilst the decisions of the New South Wales Land and Environment Court, and indeed the decisions of other Members of this Tribunal are not binding on this Tribunal, the Tribunal is satisfied that it should consider them in determining whether interference is substantial and unreasonable and the severity of an obstruction and follow relevant decisions.
The Evidence
The Arborist, Mr Inman, provided the Tribunal with considerable information and also independent photographs taken at the site. He also provided some conclusions based on the evidence which is the role of the Tribunal. Therefore, while his facts may be accepted by the Tribunal, unless contradicted by others, his conclusions are not necessarily accepted where they are stated as part of his report.
Mr Inman stated the following in his report (the comments in italics are those of the Tribunal):
Both of the applicants land is approx 1012m2, the view from the rear deck areas of both properties is obstructed by trees/palms that rise above 2.5m from ground level.
The view could be reduced by as much as 1m on either side of every trees canopy as the trees grow with each growing season, however the Cabbage Palms would remain the same width.
The view is of the entire northerly aspect and spans from the mountains in the west to the ocean in the east including Mt Coolum. Which is hidden by the Mango tree in centre of the photo (see Appendix B photo 7).
View locations from the rear of the house/s & decks for both properties, the view has been heavily reduced to the northerly direction, by the tree-keepers trees (see Appendix B photo 3).
The trees located on the tree-keepers property were not obstructing the view at the time of applicants (Mr & Mrs Werndly of 23 Gilbert Street) acquiring their land in 2000. (Mr Inman does not purport to say this from his own knowledge but is simply repeating what he was told) In 2008 the original house was demolished and a new house was built, the view has improved with the location of the rear deck being higher than the previous one, however there is still an obstructed view (see Appendix B photo 3 through to photo 12).
The same cannot be said for the applicant of 21 Gilbert Street (Ms Sutherland) as the Mango tree may have been obstructing the view prior to the Mango tree being lopped by the previous owners of 24-26 Moorabinda Street, in 1998, but the view was mostly unobstructed in 2000.
The trees have now grown to obstruct the views of both applicants and the extent of obstruction within the next 12 months may be as much as 93% v 90% as the trees grow with each growing season. (Mr Inman does not state how he reached this conclusion)
However, Mr Inman also says:
The tree-keepers trees have been retained to fit the landscape design and provide shade to the entire backyard of the tree-keepers property. This shade has a high value to the tree keeper’s enjoyment of their property (see Appendix B photo 16, 22 to 27).
Mr Inman goes on to say:
Applicants really want removal of all vegetation above the current privacy screen. If all of the vegetation was removed from the tree-keepers property, to achieve this request then the tree-keeper’s property would be greatly impacted, they would lose all shade value to their backyard.
The Tribunal notes Mr Inman’s comment that:
The trees located on the tree-keepers property may not have been obscuring the view when the applicants at 23 Gilbert Street acquired their land, however they were aware of the mango tree existing.
The applicants at 23 Gilbert Street have now demolished the original house and have now built a new dwelling, with full knowledge of the trees/palms at this current location, it appears that they have tried to accommodate these trees in their planning of this new dwelling, however the trees still partly obscure the view.
Mr Inman recommended the following but this was rejected by all parties:
Recommend removal & replacement of 1x Privet tree, Removal of 2x cabbage palms, thinning the canopy of the Mango tree and thinning the 2x clumps of Golden Cane Palms, hedging the 4x Lilly Pilly trees, permits would need to be sought for the removal of the 2x cabbage Palms.
Mr Inman says about his recommendation:
These recommended works would achieve an improved view for the applicants and still retain the most featured tree on the tree-keepers property, the Mango tree. I don't think either party would be entirely happy with this outcome, however this recommendation does provide a solution to both parties without being too onerous to the tree-keeper’s shade & landscape values.
A View that Existed When the Neighbours Took Possession of their Land
The view at the time the Applicants took possession of their properties is in dispute.
The Tribunal needs to assess a view that existed when the Applicants took possession of the land in order to determine the extent of any obstruction to that view which is now occurring.
Interestingly, Mrs Orchard inspected the dwelling then on 23 Gilbert Street in November 1999 and rejected it because she considered that the view could be obscured in the future by tree growth or redevelopment. She was unable to comment further on the vegetation that she saw at the time. However, the Orchards gave evidence that they have the right to develop to 10 metres on their property which would have a significant affect on the view from the Werndlys’ property. A search by the Werndlys at the time of purchase could have ascertained this.
The view at the time of possession becomes complicated because the Applicants took possession at different times.
Mrs Sutherland’s mother had owned 21 Gilbert Street from 1978 and Mrs Sutherland purchased the property from her mother in January 1997. She submitted that at that time she had a “view of the hills, Mt Coolum, the airport and the ocean” and this is what she wanted back.
Mrs Sutherland provided a photograph which was a composite panorama constructed by joining three photographs. She could only say that this was taken before 2000. However, the Tribunal notes that the view in that photograph is obstructed by trees and especially notes that Mt Coolum is not visible. The ocean can be seen in the distance to the east. The location of the airport from the photograph is unknown to the Tribunal.
The other point of note here is the distance from the dwelling of the view which the Applicants are seeking to maintain. According to Google maps the distance by road from 23 Gilbert Street, Buderim to Mt Coolum is approximately 19 kilometres and to the Sunshine Coast Airport is 12.6 kilometres. As these distances are considerable, it would seem unlikely, in the normal course of events, that the Applicants’ original view could be sustained.
The Werndlys provided a photograph which at different times they said was taken in 2001 or 2003. It was also composite panoramic photograph. It showed the view over the Orchards’ roof, Mt Coolum and the sea. It was said to have been taken from the Werndlys’ now demolished and replaced house.
The join in the photograph is obvious and where the Mango tree was clearly growing at the time. The mango tree is not visible in this photograph. The photograph is excellent for the Applicants’ claim but the Tribunal agrees with the submissions of the Orchards’ that it looks manufactured to suit the Applicants’ case. The view appears to have been concertinaed into one photograph to incorporate everything that the Applicants want restored.
The Werndlys’ photograph also clearly shows 4 very tall palm trees in the view which the Orchards say were cut down by them in 2004. These palms would have been a slight obstruction to the view from the Applicants’ properties. These palms clearly cannot be reinstated but should be considered by the Tribunal in the context of assessing the view that existed when the Applicants took possession of the land. The Tribunal finds that this photograph, whenever it was taken, is unreliable as to the existence of the Mango tree, and should be rejected as evidence of the view in 2000. However, it does show the existence of the palms in the view.
Other trees were removed by the Orchards along the rear boundary in 2009 when the privacy screen was installed.
While the Tribunal is not in a position to ascertain a clear picture of the view that existed when the Applicants took possession of the land, it finds that the view at the time was not unobstructed and that the existing vegetation at the time had the potential to grow and to create further obstruction of the view.
The View that Exists Now with any Obstruction
While both Applicants provided the Tribunal with photographs taken from various locations, both inside and outside their dwellings, the Tribunal preferred the photographs taken by Mr Inman because they are more objective. The individual photographs show segments of the view from each of the Applicants’ dwellings but the Tribunal decided that it should assess the entire view from each of the Applicants’ dwellings. This is in line with the Land and Environment Court New South Wales authorities.
Firstly, the Tribunal notes that only the view from the rear of the Applicants’ houses are being considered but this means the view to the West, North and East from the dwelling.
The Applicants tend in their evidence to suggest that the only relevant view is that to the North where the Respondents property is located. This narrows the view and allows for an easier argument that that view is obstructed by the Respondents' trees. The Tribunal rejects this narrow approach to what is a view.
The View from 21 Gilbert Street
Some of the photographs taken from 21 Gilbert Street were taken by the Applicants from an inside room looking through another room to the North. By narrowing the focus in this manner, the Respondents trees take up more of the photograph and a greater proportion of the view.
Taking photographs in this manner also ignores a vital part of a view, which in this case, includes the uninterrupted 180 degree view of the sky.
On the other hand, Mr Inman’s Photo 1 looks to the West and once the privet tree is removed, as agreed by the Respondents, Mrs Sutherland will have quite an extensive view in that direction. Mr Inman’s Photo 2 looks to the North and in that direction several of the Respondents' trees do obstruct her view but she still has a view to the West of the Cabbage Palm and the Mango tree looking North.
Unfortunately, Mr Inman did not provide the Tribunal with any photographs from this property looking East. He, however, did provide photographs from 23 Gilbert Street looking East which show a view to Maroochydore with its high-rise buildings.
The View from 23 Gilbert Street
Mr Inman’s Photo 4 looks to the West where the view is obstructed by the Privet tree, which is to be removed by the Respondents. Once this occurs the Werndlys should have quite a reasonable view in that direction.
Mr Inman’s Photos 8 and 9 look to the North from the Werndlys’ existing dwelling where the view is partly obstructed by the Mango tree and the Cabbage Palms. However, Photo 9 shows a view to the North to the East of the Mango tree, which is filtered through the palms. In the view of the Tribunal, these photos illustrate the Werndlys’ strongest case.
Photos 10 and 11 look North East and show an extensive view to Maroochydore with its high-rise buildings.
The Law
The first thing to be determined is whether there is a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
Then for an obstruction of a view to be interference it must be a severe obstruction in accordance with sub-section 66(3)(b)(ii).
In the Land and Environment Court New South Wales matter of Wood v Berg [2011] NSWLEC 1068 the Court had to consider when an obstruction is severe. The Court said:
17 Only if s 14E(2)(a)(ii) is satisfied do we need to consider the balancing inherent in s 14E(2)(b). Therefore we must be satisfied that the trees are causing a severe obstruction of a view from the applicant's dwelling.
18 In this matter we accept that there is some obstruction of the views from the applicant's dwelling, particularly from Deck 2. However, we are not satisfied that the obstruction is 'severe'.
19 The Macquarie Dictionary uses words such as "harsh; harshly extreme; grave; causing discomfort or distress; hard to endure; rigidly exact" to define 'severe'. The Oxford Dictionary includes "austere; strict; harsh; extreme". These words set the test at a high level.
20 In our opinion, for an obstruction to be 'severe', the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.
21 We saw nothing at the site inspection that would enable us to interpret the filtered view through the palms from Deck 2 or Deck 3 as being in any way a severe obstruction of that view.
22 We find that the trees subject to the application do not satisfy s 14E(2)(a)(ii) of the Act and therefore the Court cannot make an order under Part 2A.
In Haindl v Daisch [2011] NSWLEC 1145 the Court considered what was a view and stated:
26 However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
The Court went on to say:
28 For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction. …
The Court then considered what the NSW Act meant by the word 'severe' and the high bar it sets and said:
64 It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an 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 degree 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 to that view.
In Bagley v Guthrie [2012] NSWLEC 1252 (7 September 2012) the Court followed Haindl and said:
However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the viewfrom a particular viewing location on some incremental, slice by slice basis.
If the totality of the outlook from the existing dwelling is to be considered this includes the land and the sky from West to East that is visible from the dwelling. Both the natural and the built environment are included in a view and trees constitute part of the natural environment.
Findings
The Tribunal considers that the above opinions of the Land and Environment Court New South Wales are relevant to the view from 21 and 23 Gilbert Street and in assessing the view finds that the totality of the outlook from the existing dwelling is what the Act requires it to consider.
The Tribunal finds that the view from 21 Gilbert Street is not severely obstructed by the Respondents’ trees.
The Tribunal finds in relation to 23 Gilbert Street, that across the 180 degree vista looking West/North/East, even a modestly significant interruption of part of that view caused by Mango tree and the Cabbage Palms on the Orchards’ property, in an overall context, does not constitute a severe obstruction to that view.
The Tribunal finds that the view from 23 Gilbert Street is not severely obstructed by the Respondents’ trees.
Therefore, the Tribunal finds that while any obstruction by the Orchards’ trees is ongoing it is not substantial.
Unreasonable?
The Tribunal now has to consider whether or not the interference was unreasonable. Up until 1 November 2011 at common law there existed no right to a view. The Act brought about a significant change and the Applicants immediately, through their application, sought to act on that change.
The Orchards have been in possession of their property since 1999 and many of the trees had been planted before they purchased it. For example, Mr Martin gave evidence that the Mango tree was planted in the 1970s and this was not disputed.
The trees have had 13 years since the Orchards possession, 15 years since Mrs Sutherland’s possession and 12 years since the Werndlys’ possession to grow uninterrupted by any legislation restricting the trees obstruction of a view from the Applicants’ properties.
The evidence shows signs of poor pruning some 10 to 15 years ago but according to Mr Martin “recent corrective pruning programs and conditioning work by the owners and Arboricultural technicians have improved tree vigour considerably”. According to Mr Martin in 2009 when the Werndlys built their new dwelling and the Orchards built the privacy screen in relation to the Mango tree “significant pruning has been undertaken in the past years to clear foliage from the fence line and neighbouring property which has modified the canopy of the tree quite severely on the southern side.”
Mr Martin also stated:
The Palms, which were all established well before the property was purchased, include ”Foxtail Palms”, “Alexandra Palms”, “Cabbage Palms”, “Golden Cane Palms” and “Coconut Palms”. The property was in fact purchased for the amenity value of the established trees and Palm species, a value that characterises Buderim itself.
Mr Martin went on to say:
Pruning to improve views for neighbours is not wise or realistic option in relation to the longevity of the Mango or the Palms. Any pruning of the Palms other than dead frond removal will almost certainly kill the tree. Minor pruning (crown thinning) of the Mango may improve views but this must be performed to the Australian standards of amenity pruning (AS4373-2007) and to maintain health would constitute a minor percentage of live mass removal, perhaps 10% at best considering recent pruning programs.
As Mr Martin was employed by the Orchards over this period to look after the trees on their property, their lack of willingness to prune their trees to satisfy the Applicants’ wish for a better view is understandable, given his professional opinions.
Under these circumstances the Tribunal finds that their actions, in simply allowing their trees to grow under the supervision of an arborist, did not constitute unreasonable interference with the use and enjoyment of the Applicants’ land.
For the above reasons, subject to noting the Respondents’ undertaking to remove the privet tree, the Tribunal must dismiss the application.
The Tribunal cannot make any orders for a remedy for interference unless it finds that the tree affects the neighbour's land in accordance with section 66(2), that is, the Tribunal cannot make any order for remedy where it has found that ongoing interference is not substantial or unreasonable.
Further Considerations
Even if the Tribunal were to find a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s (Applicants’) land by the Orchards, the Tribunal would then be required to consider the matters raised in sections 73 and 75 of the Act. Therefore, the Tribunal intends to consider those matters now.
Section 73(a) raises the location of the trees in relation to the boundary of the land on which the tree is situated. The evidence showed that the Werndlys’ dwelling was built approximately 20 metres from the relevant boundary. The Sutherland property was at about the same alignment. The boundary fence between the relevant properties was built on the Orchards’ land approximately 300mm inside the Orchards’ boundary. From the boundary to the base of the Orchards’ mango tree is a distance of 4.2 metres.
The Mango tree is the Applicants’ major concern and they want it removed as they claim that thinning it out is not acceptable to them. The Mango tree is 24.2 metres from the Werndlys’ dwelling. The Orchards property is at a considerably lower level than the Werndlys’ property although the fall is unknown from the evidence. The Mango tree is about 40 years of age and is 9 metres high. From the photographs it is clear that the Mango tree is the highest and its canopy is the largest of all of the Orchards’ trees.
There was no evidence to suggest that any of the trees has any historical, cultural, social or scientific value.
There was some evidence from the Orchards and Mr Martin their arborist that the Cabbage Palms provide a habitat for native fauna including brush tailed possums and yellow-footed antechinas (a native rat) which is nocturnal but its droppings had been sighted by Mr Martin on the premises. This would suggest a contribution that the Cabbage Palms make to the local ecosystem and to biodiversity.
Sub-section (e) raises any contribution the tree makes to the natural landscape and the scenic value of the land or locality. Mr Martin in his report of 18 January 2012 stated that the tree was irreplaceable. He went on to say that the Mango tree “offers shade, character, and privacy and in an integral part of the landscaping and garden design and also provides habitat and a food source for endemic fauna.”
In relation to sub-section (f), other than the general contribution trees make to the Buderim area there was no specific evidence of any contribution the trees makes to public amenity.
In relation to sub-section (g) and any contribution the trees makes to the amenity of the land on which they are situated, including their contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke this has been addressed above but was best illustrated by Mr Inman’s Photographs 18, 22-27. It can be seen from the photographs that these trees make a significant contribution relating to privacy, landscaping, garden design or protection from sun to the Orchards’ back yard of their property. Apart from the loss of privacy, the removal of the trees would increase the visual impact of the Orchards' dwelling and the removal of trees to the extent sought would have an unreasonable impact. In addition, the loss of the landscape setting will reduce the amenity of the Orchards' property for some years to come as the replacement trees will take some time to grow.
Muir JA said recently in Graham & Ors v Welch [2012] QCA 282, and Atkinson JA agreed:
“Trees on suburban residential allotments contribute significantly to their amenity and that of the surrounding neighbourhood. Their value is not merely aesthetic in nature, although that is obviously important in itself. As well as providing shade and shelter, they can act as wind breaks, help retain soil, provide or improve privacy and attract birds and other wildlife.
Their manifold benefits do not come without disadvantages, as many neighbourhood disputes over trees will testify. A householder who may not object to the shade provided by a neighbour’s tree in summer may be less enamoured of its shade in winter, its leaves on lawns, pathways and in guttering and its roots in pipes and foundations. Nevertheless trees, often too large for, and otherwise unsuited to their position if measured by the standards of landscape architects, are part and parcel of Queensland suburbia. Residents of Queensland are generally aware of their benefits and disadvantages and of the hazards which they pose.”
There was no evidence of any impact the tree have on soil stability, the water table or other natural features of the land or locality.
Mr Werndly gave evidence that he thought that the Mango tree might come down in a cyclone but this was rejected by Mr Martin who stated that its roots had not been interfered with, the tree was healthy and was not a risk. The Tribunal has already noted the position of the Mango tree from the Applicants' dwellings and finds that even if it did fall in a cyclone it would not cause damage to the Applicants' dwellings which are 24 metres away up a slope. However, a mere possibility of tree failure, and consequent damage or injury, is not enough to invoke s 71. The Application did not raise tree failure and also it was not persuasive to raise it in evidence from a non-expert witness, especially where it was not contradicted by expert evidence.
In relation to sub-section (j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape was addressed above where Mr Martin stated that any pruning of the Palms will almost certainly kill the tree and that in relation to the Mango tree a minor percentage of live mass removal, perhaps 10% at best considering recent pruning programs would be feasible.
In relation to sub-section (k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law the Privet is a weed but is to be removed. The Peppercorn tree, which is known to the Tribunal as a weed, was not considered as it was not part of the application and although covered by the arborist’s report and recommendation for removal, was not shown to be obstructing the Applicants’ views let alone severely obstructing them.
[100]Turning now to section 75, sub-sections (c) the size of the neighbour’s land; and (d) whether the tree existed before the neighbour acquired the land are relevant. Both of these issues have been covered above and in balancing the rights of the Werndlys against those of the Orchards these issues favour the Orchards.
[101]In summary, after considering the issues raised in sections 73 and 75 in balancing the rights of the Werndlys against those of the Orchards the Tribunal finds that these issues favour the Orchards.
[102]When weighing the competing proposals and evidence in this matter and in particular when considering what orders are appropriate the Tribunal is guided by the provision of section 72 which says that 'a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved'.
[103]Therefore, if 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.
Orders
[104]For the above reasons the Tribunal makes the following orders:
1. The Tribunal accepts the undertaking given by Timothy and Christine Orchard to remove the Privet tree within four weeks and notes that they may replace it with a suitable tree.
2. The application is otherwise dismissed.
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