Ridley v Childs[2015] QCAT 537

APPEARANCES:

REASONS FOR DECISION

1. [1]
   Allan John Ridley and Winifred Anne Ridley (the Ridleys) have lived in Buderim for approximately 15 years. The Ridleys say they purchased their Buderim home in the year 2000 for its ‘panoramic views’ overlooking the Buderim Mountains and Sunshine Coast beaches.^[1]
2. [2]
   In the past 15 years, as can be expected in any leafy suburban area, trees have grown near and around the Ridleys’ property. The Ridleys say that when they purchased their house there was only one palm tree growing in the line of their view and now their view is ‘obstructed completely’ by trees.^[2] The Ridleys say there are six trees that disrupt their view.
3. [3]
   The Ridleys want the trees pruned so that they can have their view back. They have filed an application in QCAT under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act).
4. [4]
   Adelheide Childs owns the neighbouring property and for the purposes of the Act is the ‘tree keeper’ because the trees that are the subject of the dispute are on her land.
5. [5]
   Ms Childs says that the trees were there when the Ridleys purchased their house. Ms Childs says that the trees help stabilise the soil that is in a hazardous landslip area. Ms Childs says that any lopping or pruning of the trees are unacceptable because there is a risk that the trees will die resulting in a landslide that may cause injury to her or her house.
6. [6]
   Both parties rely on their own evidence, the expert evidence of Jeremy Young and Brendan Martin (the arborists). The Ridleys also rely on evidence from witnesses who performed gardening work at their home. Ms Childs also relies on the expert evidence of Darryn Quinn, Engineer.
7. [7]
   The Tribunal made directions on the first day of the hearing for the expert witnesses (the arborists) to attend an inspection of the trees the subject of the dispute and to participate in an experts conclave. The arborists prepared a joint report and Mr Quinn also prepared a report after the conclave.^[3]

What is QCAT’s power under the Act?

8. [8]
   The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbours land to prevent serious injury to any person; or to remedy, restrain or prevent- ‘…substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’.^[4]
9. [9]
   The issue of whether land is being affected (by a tree) is, as provided under s 46(a)(ii), at a particular time if the tree has caused, is causing, or is likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
10. [10]
    The Tribunal may only make appropriate orders where the interference is an obstruction of a view, if the obstruction is a ‘severe obstruction’ of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.^[5]
11. [11]
    The Tribunal must also have regard to relevant considerations under s 72 and 73 of the Act. Section 72 provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
12. [12]
    Under s 73(1) the Tribunal must consider matters including (for example) the location of the tree in relation to the boundary of the land on which the tree is situated, whether the tree has any historical, cultural, social or scientific value; any contribution the tree makes to the local ecosystem and to biodiversity; any contribution the tree makes to the amenity of the land including its contribution relating to privacy, landscaping, garden design or protection from the sun, wind, noise, odour smoke; any impact the tree has on soil stability, the water table or other natural features of the land or locality; 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; the type of tree, including whether the species of tree is a pest or weed.
13. [13]
    If the neighbour (the applicant) 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 relevant matters under s 75. This includes whether anything other than the tree that has contributed, or is contributing, to the interference; any steps taken to prevent or minimise the interference; the size of the neighbour’s land; and whether the tree (in this case trees) existed before the neighbour acquired the land.^[6]
14. [14]
    Under s 65 the Tribunal must be satisfied before it can make an order under s 66 that certain requirements are met including whether the neighbour has made a reasonable effort to reach agreement with the tree-keeper.
15. [15]
    There is no meaning of ‘severe obstruction’ under the Act. It has been determined in other cases that the use of the word ‘severe’ in s 66 of the Act ‘means the obstruction must be considerable’.^[7] In Laing & Anor v Kokkinos & Anor (No 2)^[8] the President of QCAT, Justice Wilson (as he then was) considered the New South Wales Land and Environment Court decision in Haindl v Daisch^[9] to determine the meaning of ‘severe obstructions’. Justice Wilson said:

[37] The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales… In Haindl v Daisch.. the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements… The LEC decision gave the following examples:

[If the] view comprises predominantly an unrelieved outlook towards unattractive and blank-walled built form and there is a 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 degrees 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…

16. [16]
    In Laing’s case Justice Wilson also considered an earlier LEC decision in Tenacity Consulting v Warringah^[10] and identified three tests relevant to determining the nature of the view that is obstructed. Justice Wilson said that the first step is to identify and value the type of views affected such as whether the view is water views and iconic views that would be valued more than views not of those things and whether the view is ‘whole views’ or partial views. The second step is to identify the part of the dwelling the views exist and the ‘reasonableness of protecting views from such areas’ including front and rear views and sitting and standing views.^[11] The third step is to assess the impact of the interference to the views of the whole of the property, not just for the view that is affected such as a view from the living area or from bedrooms (living area views are more significant). Justice Wilson said:

[38] In determining the nature of the view that is obstructed, some assistance is also provided by using the planning principle in the earlier LEC decision of Tenacity Consulting v Warringah... In that decision, Roseth SC adopted a four step process for assessing the nature of the view with which there was interference caused by development… For the purpose of proceedings in the Tribunal’s Neighbourhood Disputes jurisdiction, only the first three tests are relevant.

[39] The first step is to identify and value the type of views affected: water views and iconic views are valued more than views not of those things; and whole views are valued more highly than partial views.

40] The second step identifies the part of the dwelling the views exist and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sittings views are more difficult to protect than standing views.

[41] The third step assesses the impact of the interference to the views of the whole property, not just for the view that is affected: views from living areas are more significant than from bedrooms or service areas, except those from kitchens which are highly valued. As Roseth SC said:

The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating…

17. [17]
    In this case the Ridleys say they had a view from the downstairs entertainment or barbeque area (looking North) of Coolum and (looking North West) of Mount Coolum Mountains. The Ridleys say they had a view when they purchased their property and now the view is obstructed completely by the six trees.

Is there a severe obstruction of the Ridleys’ view that existed when they purchased the house in 2000?

18. [18]
    The Ridleys rely on photographs they say were taken from the same vantage point being the downstairs entertainment or barbeque area at the rear of their property. Some of the photographs were taken in 1998 before the Ridleys purchased their property (in 2000) and some more recently. The Ridleys also rely on photographs taken from another vantage point being the upper balcony of their house to show the height or growth of the trees over a period of approximately 14 months.^[12]
19. [19]
    Ms Childs had an opportunity to cross-examine the Ridleys and their independent witnesses at the hearing. On the first day of the hearing and during cross-examination of Mrs Ridley, Ms Childs said that she can understand the Ridleys are losing their view and that their property is worth less without the view but she is concerned about agreeing to any pruning or lopping of the trees because the trees are on a hazardous slip area. Ms Childs says there is no guarantee as to her safety and the safety of her property if the trees are pruned or lopped.
20. [20]
    At the hearing, Ms Childs cross-examined Mrs Ridley about the photographs.^[13] Ms Childs suggested to Mrs Ridley that the photographs show the trees growing there ‘in the background’ (in 1998). Mrs Ridley said that the trees were low growing trees. It is Mrs Ridley’s evidence that when they purchased the house in 2000 there was only one tree (a palm tree) growing and that there were no other trees in sight.
21. [21]
    Charlie Zimitat and Lindsay Gerchow gave oral evidence at the hearing on behalf of the Ridleys.
22. [22]
    Mr Gerchow has been working for the Ridleys as a gardener since they purchased their property in July 2000. Mr Gerchow prepared a written statement together with Yves Daniel. In the written statement, Mr Gerchow states that the Ridleys purchased the property in July 2000 and at that time ‘all of the entertainment area and lower garden area… was completely open with views to the whole northern aspect of the Sunshine Coast and Mount Coolum’.^[14] Mr Gerchow states that the ‘once magnificent panoramic views are now non-existent’.^[15]
23. [23]
    Mr Gerchow when giving his oral evidence at the hearing said that the view became ‘blocked’ in the last five or six years stating ‘[it has] gradually [been] creeping higher and higher’. Mr Gerchow was cross-examined at the hearing by Ms Childs about whether he was responsible for planting the trees (the subject of the dispute). Mr Gerchow said that he did not plant any trees and the trees that were there when the Ridleys bought the property were small. Mr Gerchow also said there was a palm tree growing when the Ridley purchased the property.
24. [24]
    Mr Zimitat has been working for the Ridleys as a gardener since they purchased their property in 2000. Mr Zimitat states that at that time (in 2000) there was a ‘180 degree panoramic view taking in from the ocean to Mount Coolum, the Maroochy river valley and the mountains to the west from their barbeque and entertaining area and the lower garden area’.^[16] Mr Zimitat states that the ‘once magnificent original panoramic views are now non-existent’.^[17]
25. [25]
    I accept the evidence of Mrs Ridleys about the view that she said existed when the Ridleys purchased their property in 2000. This is because the evidence before me including the photographs of the view and the independent evidence of witnesses including Mr Gerchow and Mr Zimitat support what Mrs Ridley said about the view.
26. [26]
    One of the photographs (Exhibit 9)^[18] taken in 1998 depicts a view of the Sunshine Coast mountains and beaches and there is only one palm tree clearly visible that is in line of the view. When this photograph (taken in 1999) is compared to a photograph taken more recently^[19] it is evident from that there is no longer a view.
27. [27]
    A view of the Sunshine Coast mountains and beaches is undoubtedly desirable and such a view from an entertainment or barbeque area is also desirable.

Is there a substantial, ongoing and unreasonable interference with the use and enjoyment of the Ridleys’ land?

28. [28]
    Mr Ridley was questioned at the hearing about how he has lost the enjoyment of his property. Mr Ridley said he and his wife bought the house and want to ‘settle down’. Mr Ridley said he has been married for 54 years and when sitting in the barbeque area you are looking at trees and stated ‘you get sick of it’.
29. [29]
    I accept the evidence of Mrs Ridley and Mr Ridley that they have lost the enjoyment of their property because they no longer have a view from their downstairs entertainment or barbeque area of the Sunshine Coast mountains and beaches.
30. [30]
    The arborists in their recent joint report dated 26 October 2015 refer to photographs taken between January 2010 and April 2015 and state there has been ‘significant increase in canopy density over the past 5 years’.^[20] The arborists also state that it is probable that the majority of the trees would have been present at the time the property was purchased but the trees would have been ‘significantly smaller’.^[21]
31. [31]
    In relation to the proposed pruning of the trees that the arborists agree should be performed in two stages being an initial prune and then ongoing inspections and maintenance, the arborists state that it is estimated the Ridelys’ view is 120 degrees and pruning the trees (as outlined) will ‘restore the uninterrupted view to approximately 100 degrees’.^[22]
32. [32]
    I accept the evidence of Mrs Ridley that she and Mr Ridley had a view of the Sunshine Coast mountains and beaches when they purchased their property. I accept the evidence of Mr and Mrs Ridley supported by the arborists in their recent joint report there has been growth in the height of the trees since the Ridleys purchased their property.
33. [33]
    I am satisfied that the trees being the subject of the dispute are obstructing the Ridleys’ view that they had when they purchased their property and that the obstruction is severe. In relation to my finding that the obstruction of the view is severe, I have considered the arborists recent joint report that states the proposed pruning will re-establish 80% of the horizontal view. This would equate to a current view (before pruning) of only 20%. The arborists’ opinion about the percentage of the view being affected by the trees is consistent with the photographs^[23] relied upon by the Ridleys. The photographs clearly show the trees have grown in the line of the view.

Relevant considerations under the Act?

34. [34]
    The six trees being the subject of the dispute on are on a hazardous slip area. That issue, understandably, is of particular concern for Ms Childs. The issue of soil stability is also a relevant consideration for the purposes of s 73 of the Act.
35. [35]
    Ms Childs relies on the expert evidence of Mr Quinn, engineer. Mr Quinn, prepared a report dated 26 November 2015 in response to the arborists’ joint report. Mr Quinn states in his report dated 26 November 2015:

…we consider that removal of trees (either directly or due to trees dying as a result of pruning) presents a Moderate to High Risk to the property, and an Unacceptable Risk to people, from slope instability. Our assessment was conducted in accordance with the Australian Geomechanics Society “Guidelines for Landslide Risk Management”, dated March 2007 (AGS 2007).

We confirm our earlier advice that anyone undertaking, or directing someone to undertake, pruning of the trees must provide a written guarantee that the health of the trees will not decline, and that such works will not result in an increased risk of slope instability. Please note that Tectonic Geotechnical will not provide any such guarantee.^[24]

36. [36]
    Mr Quinn gave oral evidence at the hearing by telephone. Mr Quinn referred to the site as ‘low risk’ because the site has been like that for some time and the ‘status quo’ maintained.  Mr Quinn identified other things (other than the trees) that could cause instability. He said earth works, uncontrolled filling, concentration of storm water run-off, leaking pipes and referred to other man made issues.
37. [37]
    Mr Quinn said that the removal or death of the trees would cause instability. Mr Quinn was questioned about instability of the slope due to the trees dying naturally. Mr Quinn said yes, if the trees dies naturally this could lead to instability of the slope.
38. [38]
    Ms Childs was given an opportunity to ask Mr Quinn questions about his recent report. Ms Childs referred Mr Quinn to a document^[25] prepared in 1988 that she said was given to her when she purchased the land. Ms Childs said it was recommended (to her) to plant some trees (which she did) and asked Mr Quinn if the “geotechnical point” from 1988 was still relevant today. Mr Quinn said yes.
39. [39]
    In this case, the Ridleys are not asking the Tribunal to make an order to remove or destroy any of the six trees being the subject of the dispute. The Ridleys rely on the expert evidence of the arborists. The arborists agree in their recent joint report^[26] that none of the trees should be removed. The arborists recommend that Trees 2 to 5 (inclusive) be pruned and then inspected every 12 months (or when necessary) so that further maintenance work can be undertaken to maintain the crown level of the trees at a certain height. The arborists agree that Tree 1 should not be pruned.
40. [40]
    The arborists state that the proposed pruning will re-establish 80% of the horizontal view (from the barbeque area) that would have been available at the time the Ridleys purchased their property. The arborists address the issue of impact on the stability of the slope. The arborists state:

…

• We can say that the proposed pruning or the ongoing pruning program will not be the sole responsibility of any future tree death.
• The proposed pruning will not adversely impact root structure or the trees current stability on the embankment.
• If land stability is a concern and the engineer is concerned that tree death would compromise stability, this risk could be mitigated by the planting of more trees. …^[27]

41. [41]
    Ms Childs does not accept the arborists joint report. At the commencement of the second day of the hearing Ms Childs raised issues about the arborists’ joint report. Ms Childs said that the arborists are “incorrect’ stating that they are “dishonest” because according to the Australian Standards no “honest arborist” can guarantee the trees will not decline or die.
42. [42]
    Ms Childs was permitted to ask Mr Martin further questions about the joint report at the hearing. Mr Martin gave oral evidence by telephone. Mr Martin said that to the best of his knowledge and in his 27 years experience (as an arborist) the trees will not die if they are pruned to the Australian Standards as recommended in the joint report. Mr Martin did not accept, when questioned by Ms Childs, that the pruning is ‘major’. Mr Martin said the pruning is ‘minor’ and the trees will not die as a result of that pruning in accordance with the Australian Standards except for tree 6. Mr Martin said that for tree 6 the Australian Standards is no longer applicable because it (the pruning) is regrowth. Mr Martin also said that the minor crown reduction (of the trees) is trying to create a “canopy that spreads laterally and vertically”. Mr Martin said that there might be no need for ongoing “work” (meaning pruning maintenance) after 3 years. Mr Martin also said that the proposed pruning should be done within 3 months.
43. [43]
    I prefer and accept the evidence of the arborists in relation to the issues raised by Ms Childs about the Australian Standards. Ms Childs had an opportunity to put her concerns about the Australian Standards and the pruning of the trees to Mr Martin at the hearing. I accept Mr Martin’s evidence that pruning the five trees as recommended is minor and the trees will not die as a result of that pruning in accordance with the Australian Standards. Mr Martin’s oral evidence is consistent with what he reported together with Mr Young in their recent joint report. In that report, the arborists state that the pruning of the trees will not be the sole responsibility of any future tree death.
44. [44]
    The arborists state in their joint report that the proposed pruning work is to be performed in accordance with the Australian Standards by a suitably qualified arboriculture contractor. The arborists state, as confirmed by Mr Martin in his further oral evidence, that the pruning of the trees will not impact on the root structure or the trees current stability on the embankment. I accept the evidence of the arborists reflected in their recent joint report.

What is the appropriate order?

45. [45]
    I have found there is a severe obstruction of the Ridleys’ view of the Sunshine Coast mountains and beaches that did exist when they purchased their property. I have found that because the Ridleys have lost their view to the Sunshine Coast mountains and beaches from their barbeque or entertainment area they have lost the use and enjoyment of their property.
46. [46]
    I am satisfied for the purposes of s 65 of the Act that Mr and Mrs Ridley (as the neighbour) have made a reasonable effort to resolve the issue about the trees with Ms Childs (as the tree keeper). Ms Childs was questioned at the hearing by Mrs Ridley about the attempts made to ‘discuss’ the trees. Mrs Ridley said (to Ms Childs) that she never got to a discussion about the trees stating ‘you [Ms Childs] refused to discuss the tree’. Ms Childs, in response, referred to the issue of safety as being her concern.
47. [47]
    I am satisfied that the appropriate order in this matter is to have the trees pruned as recommended by the arborists in their recent joint report. I am satisfied that the proposed pruning in accordance with the Australian Standards will resolve the dispute because it will give the Ridleys uninterrupted view to approximately 100 degrees of the Sunshine Coast Mountains and beaches from their barbeque or entertainment area.
48. [48]
    I have also considered the issue of safety due the stability of the soil that Ms Childs argues is at risk if any of the trees are pruned. As stated by Mr Quinn in giving his oral evidence ‘[you] can never say there is no risk’. Ms Childs purchased the land where she now lives with full knowledge of the hazardous slip area. Ms Childs had an opportunity to ask her expert witness, Mr Quinn, any questions about his report and the risks associated with her land. Mr Quinn in giving his evidence identified a number of things that could cause instability to the land. Mr Quinn recommends that none of the trees be removed and said that any death of the trees ‘could potentially impact’ on slope stability. The arborists in their joint report do not recommend the removal of any of the six trees. The arborists agree the pruning of the five trees will not be the sole responsibility of any future tree death. Mr Martin has also given further oral evidence about pruning that he says will not cause the death of the trees if done according to the Australian Standards.

Conclusion

49. [49]
    A panoramic view of the mountains and beaches from an entertainment or barbeque area is desirable. I have found that the Ridleys had a view when they purchased their property in the year 2000 from their entertainment or barbeque area. I have found there is now an obstruction of the Ridleys’ view that is severe because the Ridleys no longer have a view of the Sunshine Coast Mountains and beaches from their entertainment or barbeque area.
50. [50]
    I have found that the Ridleys lost the enjoyment of their entertainment and barbeque area because there is no longer a view. I have preferred the evidence of the arborists in relation to the pruning of the five trees that is to be done in accordance with the Australian Standards. In particular I have accepted the arborists evidence that the pruning will not be the sole responsibility of any future tree death. I have considered the issue of soil stability and the evidence of Mr Quinn. Mr Quinn in giving his oral evidence identified a number of issues (not just the trees) that can impact on soil stability. Mr Quinn recommends no tree be removed. Mr Quinn also refers to tree death as being a potential cause of soil instability. The arborists make other recommendations in their joint report about future tree planting. Ms Childs has a copy of the joint report and it would obviously be prudent as the owner (and tree keeper) of the land that is a hazardous slip area to consider the recommendations made by the arborists about tree planting.
51. [51]
    I have accepted the arborist’s evidence about the proposed pruning that does not recommend any trees be killed or removed. I am satisfied the proposed pruning is appropriate and will not impact on the current risk assessment of “low risk” (for the hazardous slip area) based on Mr Quinn’s evidence because the arborists (in particular Mr Martin) have said the pruning in accordance with the Australian Standards will not cause the death of the trees. I will make the orders proposed by the arborists for the initial pruning and ongoing inspections, documenting of the pruning and pruning maintenance of the five trees.
52. [52]
    The Ridleys contend that Ms Childs should pay for the cost of the pruning and ongoing inspections and maintenance of the five trees. Mrs Ridley argues that had Ms Childs agreed to the trees being pruned in 2014 they (the Ridleys) would have paid for the pruning. Mrs Ridley argues that since then (2014) they have spent thousands of dollars for the arborists to inspect the trees and prepare reports in the Tribunal proceedings.
53. [53]
    I have carefully considered the Ridleys’ evidence and Mrs Ridley’s submissions about the issue of costs. I am not satisfied that in this case Ms Childs should pay the costs of the proposed pruning and ongoing pruning and maintenance. I accept Ms Childs’ explanation as to why she did not agree to the trees being pruned in 2014 and that is because of her concerns about safety. This is because Ms Childs consistently maintained her position throughout the hearing in relation to ‘concerns’ about pruning of the six trees and more importantly concerns about safety due to the soil stability and the hazardous slip area where the six trees are located.
54. [54]
    The Ridleys were given an opportunity to address the Tribunal about the issue of costs and who should pay for the pruning. Mrs Ridley accepts that they (the Ridleys) will receive a benefit as a result of the pruning because they will get their view back. This is consistent with the joint arborists’ report that states the proposed pruning will restore 80% of the Ridleys’ view.
55. [55]
    The appropriate order in this matter having considered all of the evidence and submissions made is to order that the Ridleys pay for the cost of the proposed initial pruning, documenting of the initial pruning (including future documenting of maintenance pruning) and ongoing inspections and maintenance pruning as required and recommended by the arborists in their recent joint report. I will make orders accordingly.