Radford v Neverfail Pty Ltd[2015] QCAT 334

REASONS FOR DECISION

1. [1]
   Dr Radford (‘the neighbour’) owns a prestige colonial style house at 122 Haig Road in the sought after inner-city suburb of Auchenflower. The transfer of the property to her was registered on 10 December 2003.
2. [2]
   She has applied for the removal of a Chinese Elm tree on the neighbouring property that obscures the view of the city skyline from areas of her house.
3. [3]
   There are two properties that adjoin the side boundary of Dr Radford’s house. They are 30 Bangalla Street, and 32 Bangalla Street.
4. [4]
   The tree is located on the property at 32 Bangalla Street. There is a house on the property which is rented out.
5. [5]
   The owners of the property at 32 Bangalla Street are Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust as tenant in common with Andrew John Wilkinson and Ilma Raita Wilkinson as trustees for the Wilma Family Trust. The transfer of 32 Bangalla Street to the owners was registered on 26 July 2005.
6. [6]
   The representative of the owners of 32 Bangalla Street is Ms Zinta Harris who lives in the property at 30 Bangalla Street. Ms Harris is a Solicitor.
7. [7]
   For convenience I will refer to the respondents collectively as ‘the tree-keepers’.
8. [8]
   This matter had been fiercely contested, as I will relate.
9. [9]
   The tree-keepers at first denied that the tree was a Chinese Elm. They also contended that Dr Radford did not have a city view when she purchased her property, but that she only gained it some years afterwards, due to clearing of vegetation on the tree-keepers property. They contend that in any event, the view was not severely obstructed.
10. [10]
    The value of the view in terms of property value to Dr Radford is very significant.
11. [11]
    The tree-keepers say that the tree provides great amenity by way of shading to both properties in Bangalla Street.
12. [12]
    The matter is complicated in that Dr Radford shifted and raised her house on the block after purchasing it.
13. [13]
    The Neighbourhood Disputes (Dividing fences and Trees) Act 2011 (Qld) (‘the Act’) urges parties to attempt to resolve neighbourhood disputes amicably. As the parties were unable to resolve the matter, a tree assessor was appointed by the Tribunal, and suggested a proposal to resolve the matter by removing the tree, which is a declared pest, and replacing it with two to four more suitable native trees that would not obstruct the view. That proposal was not accepted by the parties.
14. [14]
    Each of the parties appeared on their own behalf. Ms Harris seeks her professional costs of appearing.

History of the Proceedings

15. [15]
    Dr Radford filed an application for a tree dispute in the Tribunal on 24 February 2014. The application had comprehensive attachments and submissions. The application sought orders that the tree-keepers carry out work to remove the tree, and an order that the tree-keepers pay the costs for carrying out the order.
16. [16]
    The tree-keepers filed a Response to application for a tree dispute on 3 April 2014. The response also had comprehensive attachments and submissions. They sought the following orders:

3. (1)
   That the Applicant’s application be dismissed.

3. (2)
   That the Applicant be ordered to repair the damaged retaining walls and the supports to those retaining walls to the boundaries at 30 and 32 Bangalla Street at her cost.

17. [17]
    The tree-keepers respectively applied for leave to be represented by Mr Craig Harris and Mrs Zinta Harris (jointly and severally) by two separate applications filed on 15 April 2014. Those applications were granted on 7 May 2014.
18. [18]
    The Tribunal ordered on 7 May 2014 that Dr Radford and the tree-keepers each pay $400.00 to the Tribunal towards the cost of a tree assessor to be appointed in respect of the application.
19. [19]
    The tree-keepers filed a request for reasons dated 14 May 2014 in relation to the directions hearing held on 7 May 2014, with the explanation:

Were the respondent’s submissions on the issue of costs dated 19 March 2014 taken into account when making the decision and if so what were the reasons for the decision.

20. [20]
    The tree-keepers filed an application to stay a decision on 22 May 2014. The decision was described as:

Directions of Member Allen of QCAT dated 7 May 2014 in case number NDR037-14 that the Applicant and respondent pay $400 respectively towards the cost of a tree assessor to be appointed in respect to this application.

21. [21]
    The stay application was heard on 22 May 2014, and was refused.
22. [22]
    Written reasons for the order as to payment towards the tree assessor were delivered by Member Allan on 30 May 2014. He noted:^[1]

Dr Radford’s application on its face raises issues in regard to a view and light that may if proven lead the Tribunal to make an order in her favour. The matters raised by the tree-keepers would be considered in any final decision of the Tribunal. The independent expert evidence of the tree assessor will assist the Tribunal to make its decision as intended in regard to such things as the type of tree and its characteristics, its growth pattern, the amenity of the tree, the effect of the tree on any view and light. There is nothing in either parties material to indicate that there is any greater merit in either of their positions and there are no other factors which would lead the Tribunal o depart from an equal sharing by the parties of the assessor’s costs.

23. [23]
    Directions were made by the Tribunal on 4 September 2014 requiring the parties to file their statements of evidence, the statement from each witness, any documents referred to in a statement of evidence, and any submissions in regard to the relevant law and orders.
24. [24]
    An experts conclave was held on 25 February 2015 involving Dr John Dwyer and Mr Anthony Cockram the tree assessor.
25. [25]
    Dr Radford applied for leave to be represented on 5 March 2015 by Mr Michael Crowley, who is a qualified mediator and a sessional lecturer at the QUT Business School, lecturing in topics of relational contracting, mediation and strategic procurement for the Masters program, but is not a practicing solicitor.
26. [26]
    That application was opposed by the tree-keepers in a response filed on 19 March 2015. Their grounds for opposing the application were that the proceeding did not involve complex questions of fact or law, and was a ‘simple tree matter’; and that the tree-keepers were not legally represented in the matter.
27. [27]
    The application for Dr Radford to be represented was refused on the papers by a Senior Member of the Tribunal on 23 March 2015.
28. [28]
    On 24 March 2015, Dr Radford was ordered to pay the amount of $759.00 to the Tribunal, relating to the cost of the attendance of the tree assessor at the Experts Conclave held on 25 February 2015.
29. [29]
    On 9 April 2105, directions were made by the Tribunal listing the matter for a site inspection at 10:00am on 25 May 2015, with a hearing at 1.30pm that day and for mediation at 4:00pm on that same day before the same Member.
30. [30]
    Subsequently, correspondence was received by the Tribunal from Dr Radford expressing concern as to the attendance of Ms Harris in her home. As I had been scheduled to hear the matter, the issue was referred to me. In an attempt to expedite the matter, I made directions on 23 April 2015. Those directions were as to attendance at the inspection by each party only in their own home, and as to attendance of witnesses and cross-examination of witnesses.
31. [31]
    Ms Harris then sent correspondence to the Tribunal expressing displeasure that the further directions had been made without her being heard on the matters. I accordingly scheduled a directions hearing on 15 May 2015 to enable the matters to be discussed.
32. [32]
    At the directions hearing on 15 May 2015, the parties agreed to the attendance of each of them in each other’s homes at the site inspection. The directions hearing also dealt with several preliminary matters which expedited the time required for hearing, and clarified which witnesses the parties would require to attend and to be available for cross-examination; and as to the expert evidence. The times for the site inspection and the hearing were varied as a result of the preliminary matters, to make the site inspection earlier, and allow more time for the hearing.
33. [33]
    The site inspection took place from 9.30am until 10.30am on 25 May 2015. The hearing was conducted that same day from 11.45am until 12.40pm, and then from 1.30pm until 4.50pm.
34. [34]
    Oral evidence was given at the hearing by Mr Mark Bisaro (a former tenant of 122 Haig Road); Ms Mastrapostolos (a real estate agent); Dr Radford; and Ms Harris.
35. [35]
    At the commencement of the hearing, I advised the parties that the complexity of the legal issues that had been raised would require careful consideration, and that I did not consider it appropriate to conduct the matter as a hybrid hearing with a decision made that afternoon. I advised them that I would conduct the matter as an ordinary hearing, without any mediation, and that I would deliver a reserved decision in writing.
36. [36]
    At the conclusion of the hearing, I made directions providing for a timetable for the parties to make, and respond to, any costs applications; and for the tree-keepers to respond to the written submissions of Dr Radford which were handed up at the end of the hearing, and for Dr Radford to make any reply to that response. I directed that the decision would be given after the further submissions were received and considered, and not before 7 July 2015.
37. [37]
    This is the reserved decision in the application.

The expert evidence about the Tree

38. [38]
    Expert evidence was provided by Mr Anthony Cockram, the tree assessor appointed by the Tribunal; and by Dr John Dwyer, a plant ecologist.
39. [39]
    Mr Cockram is an arborist with 24 years industry experience. He carried out a site inspection on 26 July 2014, and has provided a Tree Assessment Report dated 27 July 2014. He described the tree as a mature sized Celtis Sinensis – Chinese Celtis^[2] located adjacent to the common boundary of 30-32 Bangalla Street.
40. [40]
    He noted that whilst the subject tree is a deciduous species (losing its leaves during winter) and had no live leaves during the site inspection, positive identification was made using the many dead leaves still on the ground around the subject tree, and the bark on the trunk and mature branches.
41. [41]
    He described the tree as being in good health, vigour and form with an approximate height range of nine metres:^[3]

The 1 x Celtis sinensis – Chinese celtis is a mature specimen located at 32 Bangalla Street Auchenflower 500mm from centre of trunk to the common boundary of 30 & 32 Bangalla Street and 8m from centre of trunk to the common boundary of 32 Bangalla Street and 122 Haig road. It has an approximate height of 9m and a DBH of 380mm with a canopy spread of 11 m east/west and 10.6m north/south. It was in good health and form with no major structural defects at the time of inspection. Some evidence of lower lateral limb pruning was evident. This tree currently overhangs the boundary into 30 Bangalla St by 4.4m, but does not overhang into the applicants property at 122 Haig Road (see attached photo #4).

42. [42]
    He concluded that the tree had no historic, cultural, social or locally significant value. He noted that:

The subject tree is a Class 3 declared plant in Queensland and considered an environmental weed species requiring control if adjacent to an environmentally significant area. It is also illegal to sell a declared plant or its seed in Queensland. However 32 Bangalla Street and 122 Haig Road are not adjacent to an environmentally significant area.

This species can expect to obtain up to 30m high in optimum growing conditions. However, in this urban exposed environment and soil profile, it could only be expected to reach 18m-20m or approximately double its current size and canopy mass over the next 10-20 years.

43. [43]
    He expressed an opinion as to the extent of obstruction of the view:^[4]

The subject 1 x Celtis sinensis – Chinese celtis is currently obstructing approximately 50% of the views of the city skyline from the applicants upper and lower floors in its defoliated winter state (see photos #1 - #3). In my professional opinion this would obstruct 100% of the lower living areas (Verandah, Main bedroom), 95% of the upper Verandah and 70% of the inside living area when in full foliage (See Photos 1-5).

44. [44]
    He further said that the reduction in view would increase:^[5]

Given tree #1 current and predicted morphology, the current view obstruction created by the subject tree #1 will continue to increase over the next 12 months to take all viewing aspects from the applicants dwelling to the city skyline to 100% obstructed when in full foliage 10 months of the year, leaving 50% transparency view vista through the subject tree defoliated canopy between July and August each year.

45. [45]
    He did not consider that canopy reduction was viable:^[6]

The Tree Keepers were advised that in this instance given the species and size of the subject tree #1 1 x Celtis sinensis – Chinese celtis, height/canopy reduction would not be a viable option as the tree is still growing and will rapidly re-establish canopy mass with likely epicormic regrowth. The Tree Keepers were also advised that in this instance removal and replacement with 2-4 native tree species that do not attain a height of greater than 6 m would appease the applicant while eventually replacing the landscape amenity, privacy and shade for the tree keepers.

46. [46]
    Mr Cockram’s recommendation was for removal of the tree by an AQF Level 3 Arborist (with appropriate insurance cover), if the requisite interference was found:^[7]

Tree #1 – 1 x Celtis sinensis – Chinese celtis is recommended for total removal with compensatory two-for-one replacement plantings should it be deemed a substantial, ongoing or unreasonable interference with the applicants enjoyment of the land.

47. [47]
    He recommended that the compensatory replacement plantings be small native trees that will replace the landscape amenity, privacy and shade values for the tree keepers, and do not exceed six metres in height in this environment, such as Cupaniopsis anacardioides – Tuckeroo or Waterhousia floribunda – Weeping Lilly Pilly.
48. [48]
    Dr Dwyer made comments as to the likely age of the tree:

Based on the attached photographs of the subject tree taken in 2005, I estimate the tree was at least five years old at the time the photographs were taken. I base this estimate on the considerable lower girth (at 0.3m from ground level) of the tree, rather than height, as heights can vary considerably among trees of similar ages. The tree is likely to be even older if it was growing in heavily shaded conditions or in competition with other species that reduced its growth rate during earlier seedling and sapling stages.

49. [49]
    Mr Cockram and Dr Dwyer produced a joint experts report after a conclave, which was filed on 16 March 2015.
50. [50]
    The experts agreed that the tree was at least five years old in July 2005, and was therefore in existence at the time Dr Radford purchased her property. They agreed that the city skyline and rooftop skyline views from the lower level of the dwelling at 122 Haig Road would have been largely obscured by the pre-existing garden vegetation in 2003.
51. [51]
    As to city skyline and rooftop views from the upper level of the building, they agree that some of the trees in 2005 would have obscured, at least partially, both the city skyline and rooftop skyline. They note that in particular the two large umbrella trees and some of the palms (including the two that remain today) would have been tall enough in 2003 to partially obstruct those views.
52. [52]
    Dr Dwyer questioned the suitability of Waterhousia floribunda Weeping Lilly Pilly as a replacement tree, as it has the potential to grow taller than six metres, depending on climate and soil conditions. He thought that even if the subject tree is replaced with two native tress grown in large pots (45l bags – two metres tall) these replacement trees would take 10 years to provide amenity to that currently provide by the subject tree.
53. [53]
    The joint conclusion and recommendation of the experts was:

Mr Cockram and Dr Dwyer do not place high ecological value on the tree, as it is an environmental weed. That aside, the amenity the tree provides to residents in the dwellings at 30 and 32 Bangalla St is considerable. In particular, the tree shelters the rear of the dwelling at 30 Bangalla St from the western sun provides shade to the backyard of 32 Bangalla St. Our recommendations therefore depend on the timing of planned renovations to the dwelling at 30 Bangalla St. If renovations are to commence within the next 12 months, and the subject tree needs to be removed during this process, we recommend that the tree be removed now and suitable replacement trees planted as soon as possible to start re-establishing the amenity that the subject tree currently provides. If renovations will not commence within the next 12 months, we agree that the subject tree can continue to provide considerable amenity. In this case the matter is one for the Tribunal to decide as to the city skyline and rooftop skyline views present in 2003, at the time the property on 122 Haig Road was purchased.

Relevant considerations of the Act

54. [54]
    The Act provides as to obstruction of a view in s 66. The relevant parts of that section are:

66 Orders QCAT may make

…

3. (2)
   QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land –

1. (a)
   …

2. (b)
   to remedy, restrain or prevent –

1. (i)
   …

2. (ii)
   substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

3. (3)
   However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if –

1. (a)
   …

2. (b)
   the obstruction is –

1. (i)
   …

2. (ii)
   severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

55. [55]
    There are other considerations under the Act that the Tribunal must have regard to in this matter.
56. [56]
    Section 72 of the Act provides that a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.
57. [57]
    Section 73(1) of the Act provides for a number of general matters that the tribunal must consider. Specifically relevant in this matter are:

58. [58]
    Section 75(d) of the Act provides that 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, the Tribunal may consider whether the tree existed before the neighbour acquired the land.
59. [59]
    Section 69 provides that if the Tribunal makes an order for removal of a tree, it may also order that the tree be replaced with a tree appropriate to the environment and surroundings, or a tree of a different level of maturity, and the replacement tree be situated in a place other than the place where the removed tree was situated.
60. [60]
    Section 65 requires that before the Tribunal can make any order under s 66 it must be satisfied that the neighbour has made a reasonable effort to reach agreement with the tree-keeper, and that other stated requirements are met.

Dr Radford’s contentions

61. [61]
    Dr Radford says that she first approached the tree-keepers about removing the tree on 24 September 2012.^[8] In that letter she refers to the loss of the ‘once spectacular city view from the side and rear of my home’ which existed before she took possession of her land. She made an offer that:

I am prepared to organise and pay for the removal of the tree if in return you provide your written agreement within 7 days, and allow the tree loppers proper access to remove the tree on or before October 8, 2012. Additionally I could also supply you with a replacement native sapling that you are happy with that won’t grow so tall.

I will ensure the tree loppers have the appropriate contractors insurance and make sure that they leave your yard tidy. Additionally I will confirm and follow any necessary existing council guidelines.

62. [62]
    Dr Radford says that partial interference of the view began during spring 2011 and the view was severely obstructed by spring 2012.^[9]
63. [63]
    She contends that the tree has caused substantial ongoing and unreasonable interference with her use and enjoyment of her land in relation to the view because:^[10]

    1. Since the obstruction of the pre-existing eastern and north-eastern views, caused by the tree, she has been less likely to use major living areas of her home including the lounge, outside dining and veranda areas. She claims that friends and family no longer come to celebrate Christmas, New Year or River Fire at her residence.
    2. The amenity value of her home including the views are of particular importance to her as she is at home most of the day and night and cannot currently work due to a serious injury that occurred in 2011.
    3. The loss of the pre-existing view has also devalued her home significantly.
64. [64]
    She claims that she first observed the immature tree at the end of 2005 when the tree keepers purchased and cleared the land of a garden shed, bushes and vines except for some palm trees and the Chinese Elm, and that once the tree was exposed to sunlight it grew very rapidly.

Contentions of the tree keepers

65. [65]
    The tree-keepers say at the commencement of their response that^[11] ‘The Respondents do not accept most of the allegations and statements made by the Applicant in her Application’.
66. [66]
    They contended in the response^[12] that ‘the tree at 32 Bangalla St is not the weed or pest Celtis Sinensis but is another species of the “Chinese Elm” family’. Subsequently they conceded that the tree was a Celtis Sinensis, and this was not an issue at the hearing.
67. [67]
    The tree-keepers say that the tree was established when they bought their property, and agreed that the tree had grown over the years:^[13]

The respondents agree that when they purchased the property in mid 2005 and commenced clearing the back yard of the “jungle” and green house they left behind a few palms and the tree in question which was not an immature tree but was already established and kept for its shade bearing qualities and amenity to the garden.

The respondents agree that the tree has grown since 2003 (over 11 years), however denies that the tree has grown rapidly. The tree has grown consistently with other trees in the local surrounds.

68. [68]
    They say that the owners of 30 Bangalla Street and the owners of 32 Bangalla Street propose in the coming years to extend their properties to add two storey extensions to the rear of the existing houses:^[14]

Subject to council approval the owners of both properties would be entitled to build extensions of up to 8.5 metres in height. These extensions once built will affect the Applicant’s city view. The owners of 30 Bangalla Street and 32 Bangalla street do not recognise that the Applicant has any right to a view of the city across their properties now or in the future.

69. [69]
    They deny that Dr Radford now has the same view as when she bought the house, as it has been lifted and raised:^[15]

Exhibit 3 shows the rear view of the applicant’s property from the backyard of 32 Bangalla Street taken on 30 June 2005 showing the back veranda which existed prior to renovations to 122 Haig Road ( but after the house had been lifted and shifted) and exhibit 5 shows the current rear view and side veranda as now listed by the applicant on realestate.com.au. The respondents submit that the view from the veranda which existed in 2003 would have been obstructed by the large trees in the backyard of 32 Bangalla Street or at the least would have had those trees in its immediate foreground view. The renovations undertaken by the Applicant to her property since 2003 have changed the location and aspect of the city view to something significantly different to that which existed on the Applicant’s possession in 2003.

70. [70]
    They say that the tree contributes to the local ecosystem and to biodiversity providing access to possums and a home to local birdlife.
71. [71]
    They say that the tree contributes to the natural landscape and to the scenic value of 32 and 30 Bangalla Street without which the properties would lose critical protection against the midday and afternoon western sun to the gardens at both 32 and 30 Bangalla Street, as it is the only tree providing usable shade to 32 Bangalla Street.
72. [72]
    They say that the tree provides shade to the living areas of 30 Bangalla Street including the outdoor living area (covered only by clear roofing), children’s craft area (in the carport structure otherwise covered only by uninsulated tin roofing) kitchen and children’s playroom (covered by uninsulated tin roofing).
73. [73]
    They note that the residents of 30 Bangalla Street are a family of four with two young children, including a son with special needs, and the children’s play room, outdoor craft areas and garden provide a much needed space for this child to undergo occupational therapy and physiotherapy activities and exercises including the development of his fine and gross motor skills. They say that the loss of use of these spaces in the hotter months of the year would severely impact upon the residents of 30 Bangalla Street.

Was the view existing at the time that Dr Radford bought her property?

74. [74]
    Dr Radford attached to her application^[16] a photograph which she said was taken in 2003 immediately prior to the time she purchased the property, that was used to advertise the property, and was taken from the back veranda. She notes that the advertisement not only includes the 2003 photograph of the unobstructed pre-existing view, but also states ‘Fabulous City Views’.
75. [75]
    Dr Radford also attached to her application a copy of a letter from a real estate agent, Ms Angela Mastrapostolos.^[17] It is relevant to set that letter out in full:

My name is Angela Mastrapostolos and I work for Space property Agents and I am writing to confirm that I sold 122 Haig Road Auchenflower to Kathryn Radford at auction on the 18th October 2003.

I can confirm at the time when the house was sold to Kathryn that the view and light to the house was not obstructed by any tree/s or other objects.

I commissioned a photographer to take a number of photographs of the house including those of the spectacular city and urban views from the rear of the premises for advertising purposes.

I can confirm that the photograph of the unobstructed city view provided on the Space Property advertisement (attached) was taken from the back veranda of 122 Haig Road Auchenflower a couple of weeks prior to the auction. I was also present at the property on the date of the auction, 18th October 2003, at which time the view remained unobstructed.

I visited 122 Haig Road on the 12th February 2013 and can confirm that the once spectacular view has now been severely obstructed by a Chinese Elm growing in 30 Bangalla Street Auchenflower.

76. [76]
    In a further letter, attached to the response of the tree-keeper,^[18] Ms Mastrapostolos said that she made further investigations as to the photos used for the auction in 2003, and now had doubts, and could not advise as to who took the photographs, or from where on the property the photographs were taken. She noted that:

When I compare the city view photograph to the photograph taken of the back deck showing the urban tree-filled view, to the best of my recollection now having considered the photographs carefully, it seems that the view of the city from the left corner of the deck facing the city as spectacular as it was in 2003 did look across a similar tree-filled urban view of the neighbouring properties in the foreground i.e. established trees were in existence at the neighbouring properties at the time 222 Haig Rd was purchased by Kathryn Radford in 2003.

77. [77]
    Ms Mastrapostolos gave oral evidence at the hearing. She has been in the Real estate Industry for 18 years, and has been operating in the current area for 14 years.
78. [78]
    She was strong in saying that at the time of the sale to Dr Radford that the whole back of the house and down the left hand side of the property had city views. She said that she saw the views in 2003 at the time of the auction, and that the views were very clear.
79. [79]
    She said that there were established trees at 32 Bangalla Street, but she did not see a Chinese Elm there at the time of the auction.
80. [80]
    She said that she did get photos taken of the property a couple of days to a week before the property was put on the market in 2003. She said that she did not retract her initial letter, but that her second letter as to the photos was more accurate.
81. [81]
    She said that whilst she was unsure as to who took the photos in the advertising in 2003, she was adamant that there were clear views to the city when Dr Radford bought the property.
82. [82]
    Mr Mark Bisaro gave evidence that he lived in the house at 122 Haig Road from 1996 until 2001. He said he used to visit his parents there until it was sold in 2003. He recalled there being a view from 2002 to 2003, and said that he could see the city from various parts of the rear deck. He did not recall the trees on the adjoining block obscuring the view.

Discussion

83. [83]
    The neighbour and the tree-keepers had correspondence between themselves as to resolution of this matter, and attempts were made to have the matter mediated by the one of the Dispute Resolution Centres administered by the Department of Justice and Attorney-General. These attempts were unsuccessful. I am satisfied that they constituted a reasonable effort to reach agreement, as required by s 65(a), and that the other requirements of s 65 are made out, such that an order may be made under s 66.
84. [84]
    I accept the evidence of Ms Mastrapostolos that there were city views from the house at the time that Dr Radford bought it. Her clear and adamant evidence of her personal recollection carries much more weight than the discussion as to who took the photos that were used in the advertising in 2003, and when they were taken; or the attempted analysis of the various photographs.
85. [85]
    I also accept the clear evidence of Mr Bisaro that there were city views from the house when the house was sold to Dr Radford.
86. [86]
    The expert evidence does not controvert the evidence of Ms Mastrapostolos or Mr Bisaro, and gives no reason to doubt their evidence.
87. [87]
    The combined force of the evidence of Ms Mastrapostolos and Mr Bisaro comfortably satisfies me that there was a view of the city skyline from the dwelling that existed when Dr Radford took possession of the land.
88. [88]
    Having been satisfied that there was a city view from the dwelling in 2003, is that a view that is protected by the Act, having regard to what has happened to the house since 2003 by way of raising and moving it?
89. [89]
    The Act refers in s 66(3)(b)(ii) to ‘a view from a dwelling on the neighbour’s land’. It does not refer to any specific viewing point.
90. [90]
    A drawing by a building designer of the alterations to 122 Haig Road^[19] shows that the house was raised approximately 1600mm and moved sideways, maintaining an 1800mm setback to Haig Road.
91. [91]
    The question then becomes as to whether the views that were enjoyed from the dwelling when it was at a position 1600mm lower than it is now, and would have been protected by the Act if no alterations had been made, are still protected.
92. [92]
    The house was moved on the block, but the footprint of the old and new position overlap significantly, so that an observer could still today look from the dwelling at the same height as the eye-level of an observer when the land was taken possession of by Dr Radford.
93. [93]
    In practice that means a viewing position 1600mm lower than the eye-level of a viewer on the current deck. That might mean a person looking from a standing position on the rear stairs, or lying down on the current deck, or standing on a chair on the lower level. Whilst that may sound artificial, there is still a position in the dwelling from where the pre-existing view can be viewed.
94. [94]
    I am therefore satisfied that there is a view from the dwelling that existed when Dr Radford took possession of the land, in relation to which s 66(3)(b)(ii) will be operative.
95. [95]
    Is the obstruction of the view ‘severe’ within s 66(3)(b)(ii), and is the tree consequently causing ‘substantial, ongoing and unreasonable interference with the enjoyment’ of Dr Radford’s land within s 66 (2)(b)(ii)?
96. [96]
    Dr Radford has alleged that the loss of her view has severely reduced her enjoyment of her home, and the value of it.
97. [97]
    A city view is obviously a prized feature of a home, and reflects on its desirability and value. The complete obstruction of a city view is unquestionably substantial and ongoing.
98. [98]
    The fact that the city view is currently obscured from the top level, highlights the height and obstruction of the tree, as it is obscuring a view from 1600mm higher than the view that was enjoyed when Dr Radford bought the house.
99. [99]
    In her evidence at the hearing, Ms Mastrapostolos assessed the value of the diminution of the sale price of Dr Radford’s house by having it’s city view obscured as $500,000.00. She valued the house without city views as worth $1.5 million, and with city views as $2 million.
100. [100]
     I accept that evidence of Ms Mastrapostolos. There is therefore a substantial effect on the value of Dr Radford’s land by the obstruction of the view.
101. [101]
     Is the obstruction a ‘severe’ obstruction of the view?
102. [102]
     In cases of these types regard is to be had to the whole of the view,^[20] and to assess the extent of obstruction as a whole.
103. [103]
     The city skyline view is in itself a substantial part of the overall view from the side of the dwelling. The joint experts report agreed that:^[21]

In Photo 4 from Mr Cockram’s report (view from lower level), the city skyline view makes up 1/3 of the total vista. The remaining 2/3 of the vista is considered rooftop skyline views.

In Photo 1 of Mr Cockram’s report (view from upper level), the city skyline makes up ¼ of the total vista. The remaining ¾ of the vista is considered rooftop skyline views

104. [104]
     Mr Cockram‘s opinion was that the tree at the time of his inspection was obstructing approximately 50% of the views of the city skyline from Dr Radford’s upper and lower floors in its defoliated winter state; and would obstruct 100% of the lower living areas (Verandah, Main bedroom), 95% of the upper Verandah and 70% of the inside living area when in full foliage.^[22]
105. [105]
     He considered that the view obstruction created by the tree would continue over the next 12 months (taking it to a current date) to take all viewing aspects from Dr Radford’s dwelling to the city skyline to 100% obstructed when in full foliage 10 months of the year, leaving 50% transparency view vista through the tree canopy between July and August of each year.
106. [106]
     The impact of this assessment is that ¼ to 1/3 of the total vista (the city skyline) is totally obstructed by the tree variously at upper and lower levels (which takes in the previous height of the house) when the tree is in full foliage for 10 months of the year; and is half obstructed for the other two months.
107. [107]
     The obstruction of ¼ to 1/3 of the total vista is a severe obstruction in itself. When this is coupled with the significance of the obscured view, being a city skyline, the severity of the obstruction is reinforced.
108. [108]
     I am therefore satisfied that the tree is causing a severe obstruction of the view.
109. [109]
     Having regard to the severe obstruction of the pre-existing view, the loss of enjoyment to Dr Radford, and the significant reduction in the value of her land, I am satisfied that the tree is causing substantial, ongoing and unreasonable interference with the use and enjoyment of Dr Radford’s land.
110. [110]
     The tree is a declared pest. It has no historical, cultural, social or scientific value. The evidence of Mr Cockram is that pruning is not a feasible alternative.
111. [111]
     I am satisfied that the issues relating to the tree are significant, and that they cannot be satisfactorily resolved by any means other than the removal of the tree.
112. [112]
     Should an order be made for removal of the tree?
113. [113]
     The case for removal of the tree is very strong, having regard to the conclusions I have formed as to the detriment it is causing Dr Radford, and its lack of any significant individual significance or importance. The Tribunal will still have a discretion as to order removal, having regard to the impact on the tree-keepers and the effect of removal generally.
114. [114]
     The tree-keepers and the adjoining land enjoy amenity from the tree, it provides shade from the western sun, and covers the backyard where children play and enjoy its benefits. There will be detriment to the adjoining land by the removal, as the experts conclude.
115. [115]
     However, the detriment to the tree-keepers and the adjoining land can be addressed by the planting of substitute vegetation, or by built environment such as shade structures. There is nothing that Dr Radford can do however about her loss of the city view except to have the tree removed.
116. [116]
     I therefore consider that the balance lies with the neighbour, and that it is appropriate to order that the tree be removed.
117. [117]
     The sole benefit of the removal of the tree accrues to Dr Radford. It is therefore appropriate that she should bear the costs of removal of the tree.
118. [118]
     Further, the removal of the tree will cause detriment to the tree-keepers, and it is appropriate that this should be addressed by the planting of replacement vegetation as discussed by the experts, and that Dr Radford should also bear the costs of this.
119. [119]
     The experts discussed the planting of two replacement trees in their joint report.
120. [120]
     As Dr Dwyer had concerns as to the use of a Weeping Lilly Pilly, I will order that the alternate suggestion of a Tuckeroo (Cupaniopsis anacardioides) be implemented. The reference by Dr Dwyer to large pots (45l bags, approximately two metres tall) being utilised (even though they will take 10 years to provide similar amenity) suggest that this is the largest stock that he considered appropriate, and I will therefore make an order as to that size replacement.
121. [121]
     It may be however, that the tree-keepers do not want one or both of the replacement trees planted, as they may interfere with their proposals to build on the blocks. The tree-keepers may also have specific locations in mind where they require the replacement trees to be planted so as to give the greatest amenity, and fit in with their proposed building plans. I will therefore give the tree-keepers the option of whether to have the replacement trees planted at all, and if so, how many and where.
122. [122]
     I therefore will order that;

1. The tree be removed

2. Dr Radford pay the costs of removal of the tree

3. Dr Radford also pay for the planting of one or two Tuckeroo replacement trees in 45l bags, as the tree-keepers request.

Costs

123. [123]
     Ms Harris has applied for her professional costs in appearing in this matter. She refers to decisions in support of the proposition that a lawyer may obtain their professional costs of conducting their own matter.^[23]
124. [124]
     She has obtained an assessment of the costs she is seeking from a Costs Assessor on both an indemnity basis and a standard basis, and alternately on the District Court and Magistrates Court scale.^[24] The total of the amounts she is seeking (detailed in 12 different assessments – covering the file, a directions hearing, and submissions) are summarised as follows:

District Court Indemnity costs  $74,085.32

District Court Standard costs  $65,135.94

Magistrates Court Indemnity costs  $58,991.78

Magistrates Court Standard costs $51,877.33

125. [125]
     The neighbour has been successful in her application to have the tree removed, which was opposed by the tree-keepers. The tree-keepers have therefore been unsuccessful as to their primary aim.
126. [126]
     The neighbour made an offer of settlement at the commencement of the proceedings, which is effectively identical to the order that has been made after the hearing of the matter. It would not be fair or reasonable for the neighbour to have to bear legal costs of the other party thereafter.
127. [127]
     The tree-keepers stated in their submissions opposing the grant of legal representation to Dr Radford that Ms Harris was not acting in a professional capacity. Her application now does not sit easily with those submissions.
128. [128]
     It is notable that in the response the tree-keepers said:^[25]

2.2 The Respondents are not legally represented in this matter.

The Respondents are represented in this matter by Craig Harris and Zinta Harris the directors of Neverfail Pty Ltd (one of the co-owners of the property at 32 Bangalla Street). Whilst Zinta Harris is an Australian legal practitioner, leave for representation in this matter was made for Craig and Zinta Harris as Directors of Neverfail Pty Ltd to act for and on behalf of all co-owners because the other co-owners (Andrew and Ilma Wilkinson) reside in Shanghai, China and because Craig and Zinta Harris as directors of Neverfail Pty Ltd have day-to-day management of the rental property at 32 Bangalla St. Any conduct of this matter by Zinta Harris is on this basis and not as a legal practitioner representing the Respondents (see Application for leave to be represented filed 15 April 2014).

129. [129]
     It is also difficult to reconcile the tree-keepers having opposed the neighbour’s application for representation, with their now effectively seeking legal costs for their own representation.
130. [130]
     The costs of between approximately $52,000 and $74,000 that are being sought by Ms Harris seem very high for a dispute of this nature. An example is the amount claimed in the District Court indemnity assessment for an item in the amount of $10,765.18 described as:^[26]

Instructions generally, care and consideration for the complexity, novelty or importance of the matter, including the amount involved, the number and complexity of the documents prepared and perused, research and consideration of questions of law and fact, specialised knowledge, skill taken and all responsibility.

131. [131]
     This is particularly highlighted when it is recalled that the tree-keepers in their submissions opposing representation by the neighbour, submitted that this proceeding did not involve complex questions of fact or law, and described this matter as ‘a simple tree matter’.^[27] Those costs claims would be expected to come under sharp scrutiny in a contested taxation of costs.
132. [132]
     Ms Harris specifically seeks her costs of the directions hearing held on 15 May 2015. I arranged for that directions hearing after Ms Harris wrote to the Registry expressing concerns about her not being heard as to the directions made on 23 April 2015.
133. [133]
     As I indicated at the directions hearing held on 15 May 2015, that point was properly made, and the directions hearing was called in part to address her concerns. However, the directions hearing was not confined to those matters. Important preliminary matters relating to the conduct of the hearing were discussed, such as: the proper description of the tree-keepers; the timing of the inspection and of the hearing; the granting of leave for witnesses to attend the hearing by telephone; the clarification of the witnesses required to attend for cross-examination; and discussion of what documents constituted statements of evidence. This allowed for an orderly organisation of witnesses, and saved valuable time at the hearing, and ensured that the matter was able to be concluded in one day.
134. [134]
     If such a preliminary discussion had not been held, given the confused state of the material from both parties, it is likely that these matters would have had to be addressed at the hearing, which would have extended it, and very likely have caused the matter to run into a second day.
135. [135]
     The directions hearing therefore formed part of management of the hearing process, and does not give rise to any specific consideration outside of the broader cost considerations.
136. [136]
     In considering any costs application, the Tribunal will have regard to the conduct of the parties, and any other relevant matter. Having regard to the relative success of the parties; the early offer of settlement by the neighbour; the stated nature of her appearance by Ms Harris; the opposition by the tree-keeper to the neighbour being represented: and the absence of any need to depart from the usual considerations as to the directions hearing; I do not consider that a costs order should be made as sought by Ms Harris.
137. [137]
     Dr Radford seeks her costs of filing the application ($285.00), and fees she has paid in relation to the tree assessment report ($400.00), and the joint experts report ($759).
138. [138]
     The costs incurred by Dr Radford were usual costs to establish her claim, and were necessary for the Tribunal to be satisfied as to the expert basis required for a tree order.
139. [139]
     The usual rule as to parties bearing their own costs, as set out in s 100 of the QCAT Act should apply. I make no order as to costs.

Orders

140. [140]
     I make the following orders: