Vecchio v Papavasiliou[2015] QCAT 70

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   For twenty-five years, Mr and Mrs Papavasiliou have lived in their heritage listed home on a large block in Hillside Crescent Hamilton. In 2008, Mr Vecchio bought the small, vacant block of land next door. In 2010, he built a modern home on that block.
2. [2]
   Both houses face south. Across the street, to the south, a large apartment block restricts the views from both houses but they have view corridors to the Brisbane River looking both east and west.
3. [3]
   There is a tall hedge of lilly-pilly between Mr and Mrs Papavasiliou and Mr Vecchio. The hedge restricts Mr Vecchio’s view to the east. He wants the hedge removed, or pruned to a height of less than 2.5 metres from the natural ground level. He says the hedge restricts a pre-existing view and restricts sunlight to his home. He says the leaf litter creates a nuisance in his home.
4. [4]
   Mr and Mrs Papavasiliou, as the tree keepers, must ensure that the hedge does not cause serious injury to a person, serious damage to a person’s land or property, or substantial, ongoing and unreasonable interference with a person’s use or enjoyment of land.^[1]
5. [5]
   The tribunal may make orders to prevent serious injury to any person, and to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[2]
6. [6]
   A tree can be a substantial, ongoing or unreasonable interference with sunlight if the tree rises at least 2.5 metres above the ground^[3] and is a severe obstruction of sunlight to a window or roof^[4]. A tree can be a substantial, ongoing or unreasonable interference with a view if the tree rises at least 2.5 metres above the ground and 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].
7. [7]
   As is its usual practice, the tribunal commissioned a report from an arborist. Mr Vecchio engaged his own arborist. The two arborists participated in a conclave on 9 December 2014 and produced a joint report. They have concluded that the leaf litter from the hedge does not present a substantial, ongoing and unreasonable interference with Mr Vecchio’s use or enjoyment of land. They have concluded that the hedge does produce a shading effect on Mr Vecchio’s house between 8 am and 10 am. They have also concluded that the hedge partially obscures the view from some areas of Mr Vecchio’s home. They suggest that the front portion of the hedge be reduced by 0.5 metres to provide a view from the first floor balcony and ensuite of Mr Vecchio’s home while also providing privacy to Mr and Mrs Papavasiliou.

Loss of the view

8. [8]
   Both parties have filed extensive material about the state of the vegetation that existed on Mr Vecchio’s land at the time he took possession. The evidence shows that Mr and Mrs Papavasiliou had a mature hedge on the boundary when Mr Vecchio bought his land. Mr Vecchio’s development application acknowledged the existence of vegetation on the boundary between his future home and Mr and Mrs Papavasiliou’s home.^[6]
9. [9]
   That hedge died. There is no dispute that Mr and Mrs Papavasiliou replanted that hedge with the current hedge, probably before Mr Vecchio started building his house. The arborists suggest that the new hedge is higher than the earlier hedge at the front of the boundary but is otherwise the same height or lower.
10. [10]
    The debate about the pre-existing vegetation is, however, an arid one. There is no general right to a view in Queensland^[7]. The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011(Qld) creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. Section 66(3)(b)(ii) creates a right to a view from a dwelling (my emphasis) that existed at the time the neighbour took possession of the land.  If there was no dwelling at the time the neighbour took possession of the land, then there was no view that is protected by the Act.
11. [11]
    Therefore, when Mr Vecchio took possession of the land, because there was no house, there was no view capable of protection. Mr Vecchio cannot now seek the tribunal’s assistance to reclaim a view he never had.

Obstruction of sunlight

12. [12]
    Mr Vecchio filed a series of photos showing how the trees obstruct sunlight into his eastern facing rooms. Photos of the courtyard, informal dining room window, kitchen windows, stairwell windows, laundry and drying area show a block wall, then a fence, and then the trees. The trees are only a small portion of the obstruction that exists in these areas. I do not consider that the trees constitute a substantial obstruction to the courtyard, informal dining room window, kitchen windows, stairwell windows, laundry or drying area.
13. [13]
    The windows in the dining room, sunroom and bedrooms on level 2 are more problematic. I do not accept Mr and Mrs Papavasiliou’s submission that Mr Vecchio intended the eastern side of his home would be the “rear” of his home. The approved plans show many windows on the eastern side which indicates clearly that Mr Vecchio always intended to take full advantage of the easterly aspect. I consider the hedge constitutes a significant obstruction to sunlight in the dining room, sunroom and bedrooms.
14. [14]
    It is unlikely that the child’s room, at the rear of the house and behind Mr and Mrs Papavasiliou’s brick garage, would ever have enjoyed much sunshine from the eastern aspect if the original hedge had been maintained. The sunroom sits about half way back along the length of Mr Vecchio’s house. Sunlight to that room was always going to be obstructed by the pre-existing vegetation. I am not persuaded that Mr and Mrs Papavasiliou should be required to remove vegetation that should have been within Mr Vecchio’s contemplation when he bought the land and designed the house.
15. [15]
    If the hedge that existed when Mr Vecchio bought the land had been maintained at the lower height as shown in the photos, Mr Vecchio would have continued to enjoy sunlight from the easterly aspect in the main bedroom, the balcony to the main bedroom and the formal dining room. It is appropriate that the hedge at the front of the block be trimmed so that Mr Vecchio can continue to enjoy sunlight in these rooms. For that reason, I propose to order some works to the hedge.
16. [16]
    The arborists recommend pruning from a point adjacent to Mr and Mrs Papavasiliou’s garage to the front boundary. In my view, pruning to that extent would provide Mr Vecchio with more sunlight, and a better view, than he could have expected if the pre-existing vegetation remained. To put him back into that position, pruning is only required from a point about half way along the boundary. Mr and Mrs Papavasiliou’s driveway has a control joint roughly adjacent to that point.^[8] I therefore propose to order that Mr and Mrs Papavasiliou prune the hedge so that it is maintained at a height of 4.5 metres from natural ground level from this point to the front alignment of the two properties.

Leaf litter

17. [17]
    Leaf litter and small elements of deadwood is a natural consequence of the presence of urban trees. It is not normally a ground for an order by the tribunal^[9]. Here, there is little evidence of leaf litter from the hedge. There is no evidence that the amount of leaf litter is enough to constitute a nuisance, let alone a substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Vecchio’s land. I do not propose any order to address the leaf litter.

Orders

1. The registered owner of the lot at 16 Hillside Crescent HAMILTON QLD  4007 (“the Tree-Keeper”) arrange to have the following works carried out on the tree/s the subject of the dispute (“the Initial Works”):
   1. The Tree-Keepers are to prune and limit the height of the tree hedge between 16 Hillside Crescent HAMILTON and 10 Hillside Crescent HAMILTON (“the Neighbour”) so that it is maintained at a height of 4.55 metres from natural ground level for the section forward from the control joint in the Tree-Keeper’s driveway (shown on Figure 1) to the front alignment of the two properties.
2. The Tree-Keepers shall carry out periodic and ongoing hedging as per the Initial Works as required, and not less than at 6-monthly intervals (“the Subsequent Works”).
3. The Initial Works and the Subsequent Works must be carried out:
   1. By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture; and
   2. In accordance with Australian Standard 4373-2007 “Pruning of Amenity Trees”
   3. The Initial Works must be carried out within 60 days of the date of this order.

Figure 1