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Nichol v Campbell[2016] QCAT 57

CITATION:

Nichol v Campbell [2016] QCAT 57

PARTIES:

Shirley Nichol

Joseph Nichol

(Applicants)

 

v

 

Glen Raymond Campbell

(Respondent)

APPLICATION NUMBER:

NDR097-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

15 September 2015

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

9 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE RESOLUTION – TREES – loss of view – where applicant purchased vacant block – where applicant built new home – where unobstructed view - where palm trees obstructed view – where bamboo obstructed view – whether severe obstruction of the view

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48, s 49, s 65, s 66, s 72, s 73, s 75

Haindl v Daisch [2011] NSWLEC 1145

Kokkinos v Laing [2012] QCAT 580

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247

Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES:

APPLICANTS:

Shirley Nichol and Joseph Nichol

RESPONDENT:

Glen Campbell

REPRESENTATIVES:

APPLICANT:

Self-represented

RESPONDENT:

Self-represented

REASONS FOR DECISION

Background

  1. [1]
    Mr and Mrs Nichol are the registered owners of 136 The Panorama, Tallai. Mr Campbell is the registered owner of 144 The Panorama, Tallai. Mr and Mrs Nichol’s property is elevated so that the rear of their property overlooks Mr Campbell’s property. Mr and Mrs Nichol claim that the palm trees growing on Mr Campbell’s land are causing a severe obstruction to the previously unobstructed view they enjoyed before the growth of the trees and will continue to do so if they are not removed. They also say that the rapidly growing bamboo on Mr Campbell’s land causes some obstruction to the view and will likely cause further obstruction in the future.
  2. [2]
    There is no dispute that Mr and Mrs Nichol purchased vacant land at 136 The Panorama on or about 12 August 1992.[1] They completed the construction of their large two-storey home in 1993. Later, in 1995, a deck to the rear of the property was constructed. An addition to the original deck was completed in 2011. Approximately eight metres was added to the original deck at an elevation of about 30 to 60 cm above that of the original deck at one end. Mr and Mrs Nichol say they completed the addition in an effort to maintain their view over the roof of Mr Campbell’s property and towards the coast line with its city buildings and night lights.
  3. [3]
    Mr Campbell became the registered owner of 144 The Panorama on 18 October 2007.[2] He has resided at the property since 2004 moving out to complete renovations. He resides there with his partner and young family. While it is accepted by the parties that Mr Campbell did not plant the palm trees, there is dispute about whether they were planted before or after Mr and Mrs Nichol took possession of their land.
  4. [4]
    Mr Campbell admits that he planted the fast growing bamboo to provide privacy screening for his property after Mr and Mrs Nichol extended their deck and he became concerned that they could see into the top floor of his residence.
  5. [5]
    On 1 July 2014, Mr and Mrs Nichol applied to the Tribunal for orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act). Mr Campbell had previously declined Mr and Mrs Nichol’s offer to remove the palm trees at their expense.
  6. [6]
    As is the usual practice in these types of matters, the Tribunal commissioned a report from an arborist, Ms Jan Allen who, following an inspection of the site on 17 November 2014, completed a report in February 2015.[3] Subsequently, Mr Campbell made an offer to settle the dispute which was not accepted by Mr and Mrs Nichol.
  7. [7]
    The Tribunal conducted a hearing on 15 September 2015. At the end of the hearing, the Tribunal directed the parties to provide written submissions. Following receipt of those submissions, the Tribunal determined the matter.
  8. [8]
    The Tribunal has considered the documentary evidence tendered at the hearing including photographs and a video submitted by Mr and Mrs Nichol as well as photographs lodged by Mr Campbell and various statements of witnesses. The Tribunal has also considered the reports of Ms Allen and Mr James Tayler, Registered Professional Engineer.[4] In addition to the documentary evidence, the Tribunal heard oral evidence from Mrs Nichol, Mr Campbell, Ms Allen, Mr Tayler, Mr Shakey Lake, Mrs Kristell Lake, Mr Brian Edwards and real estate agents, Mr Murray Duthie and Mr Rod Murray. Only the salient parts of the evidence are referred to in these reasons.

Legislative provisions

  1. [9]
    In this case, it is clear that Mr Campbell is the “tree-keeper”[5] and Mr and Mrs Nichol are the “neighbour”[6] for the purposes of the Act.
  2. [10]
    In this case, each of the parties has made offers to resolve the matter, but the offers have not been accepted by the other party.
  3. [11]
    According to s 65 of the Act, The Tribunal can make orders under s 66 of the Act, provided that the neighbour has made a reasonable effort to reach agreement with the tree-keeper and has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process. As the Tribunal has indicated, Mr and Mrs Nichol have attempted unsuccessfully to resolve the dispute with Mr Campbell. The Tribunal is unaware of any local government law, scheme or administrative process applicable in this case. The Tribunal considers that s 65 of the Act has been satisfied.
  4. [12]
    Section 66(2) of the Act provides that the Tribunal may make orders it considers appropriate in relation to a tree affecting the neighbour’s land:
    1. to prevent serious injury to any person; or
    2. to remedy, restrain or prevent-
    1. serious damage to the neighbour’s land or any property on the neighbour’s land; or
    2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
  5. [13]
    However, the Tribunal can remedy, restrain or prevent a substantial, ongoing and unreasonable interference that is an obstruction of a view only if the obstruction is ‘severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.[7]
  6. [14]
    Part 5, Division 4 of the Act sets out the matters for the Tribunal to consider in deciding an application for an order but the division does not limit the matters the Tribunal may consider.
  7. [15]
    Section 72 of the Act provides that the removal or destruction of a living tree should not occur unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
  8. [16]
    Section 73 of the Act sets out the general matters for consideration by the Tribunal, and includes matters such as:
    • 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;
    • Any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
    • 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;
    • Any risks associated with the tree in the event of a cyclone or other extreme weather event; and
    • Any impact the tree has on soil stability, the water table, or other natural features of the land or locality.
  9. [17]
    In relation to consideration of whether the trees are causing unreasonable interference, s 75 provides that the Tribunal may also consider the following:
    • Anything other than the tree that has contributed or is contributing to the interference;
    • Any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference;
    • Whether the tree existed before the neighbour acquired the land;
    • For any interference that is an obstruction of a view, any contribution the tree makes to the protection or revegetation of a waterway or foreshore.

What trees are affecting the neighbour’s land?

  1. [18]
    Ms Allen in her report states that the following trees are in dispute:
    1. 16 Bangalow palms, which are 25 to 30 years old and 6m to 12m high;
    2. Bamboo ‘Oldhamii’ which is 8m high and three to five years old;
    3. Bamboo ‘Chungii’ which is 8m high; and
    4. A weeping fig tree which is 25 to 30 years old and 9m high.
  2. [19]
    Ms Allen states in her report that the palm trees would grow to about 20m, the fig tree to 15m and the bamboo to 8m – 10m. Although, in her oral evidence, she conceded that the bamboo might grow to 12 m. She said that if this were to occur and the bamboo developed foliage then it would be likely to hang at an angle once it reached its height limitation. She said that while the palm trees would continue to grow their growth would not be rapid and their canopies were seasonal being less dense at certain times of the year. The Tribunal accepts that evidence.
  3. [20]
    In her report she states that since there was no boundary fence and the trees were located further than three metres from an ‘approved structure’, the approval of the Gold Coast City Council could be required to carry out removal or severe pruning; however it was not likely that a specific development order was in place to protect the trees.[8] Neither party was able to say whether approval would be required by the Council to remove or severely prune the trees. Neither party was aware of any development order to protect the trees.
  4. [21]
    At the hearing, Mrs Nichol indicated that she did not have any issue with the fig tree. She also said that she was not concerned about the natural vegetation growing on the tree-keeper’s land or on adjoining blocks. Mrs Nichol has a large gum tree growing at the rear of her land, which also has some impact on the view.

Has there been a substantial ongoing and unreasonable interference with the use of enjoyment of the neighbour’s land?

  1. [22]
    There is no dispute that at the time Mr and Mrs Nichol purchased their vacant lot, much of the surrounding lands had been cleared of trees for development.
  2. [23]
    Mr and Mrs Nichol dispute that the palm trees were planted prior to their purchase of the vacant land. Mr Campbell relies on the evidence of Mr Shakey and Mrs Kristell Lake who once owned 144 The Panorama,  constructing the dwelling on the property in the late 1980s. Mr Lake said he planted the palm trees in 1989/1990 prior to Mr and Mrs Nichol purchasing their land. Mr Lake’s evidence was that the palms were very small when they were planted. Mrs Lake said they were planted in early 1990. It was clear from the tone and some of the comments made by Mr Lake during Mrs Nichol’s cross-examination of him that he preferred to see Mr Campbell succeed in resisting Mr and Mrs Nichol’s application. His tone was somewhat hostile. Mrs Lake gave her evidence separately from Mr Lake and did so in a straightforward manner.
  3. [24]
    Mr Edwards’ evidence was consistent with that of Mr Lake. Mr Edwards is the owner of the property adjoining Mr Campbell’s property. Mr Edwards’ property also shares a small dividing fence with Mr and Mrs Nichol’s property. He said that Mr and Mrs Nichol’s property is to the right of his rear boundary. Mr Edwards said he purchased his home in 1982 and had resided there since 1985. He said that the palm trees were planted in the late 1980s by Mr and Mrs Lake before Mr and Mrs Nichol purchased their property.
  4. [25]
    Mrs Nichol’s evidence was that, at the time of their purchase of the land, she did not notice any trees that would be likely to affect her view. She went further saying that had she done so, she might not have purchased the land. She told the Tribunal that her son could not recall seeing any palm trees when he played on the slope of the property as a boy.
  5. [26]
    Mr Lake and Mr Edwards clearly support Mr Campbell’s case but that does not mean that their evidence was untruthful. Their evidence was given under oath/affirmation and is consistent. Mrs Lake’s evidence was also consistent with that of Mr Lake and Mr Edwards. The Tribunal considers that the weight of the evidence supports a finding that the palm trees were planted prior to Mr and Mrs Nichol purchasing their land, and that, at the time, the trees were so small Mr and Mrs Nichol did not notice them.
  6. [27]
    In her report, Ms Allen described the properties. She states that Mr and Mrs Nichol’s property falls steeply on the southern and south-eastern sides, towards the tree-keeper’s land. She states that both properties are afforded extensive views of the coastal plains and towards the coast and that “The Panorama” is locally recognised for both its expansive view opportunities and for its highly treed native bushland character.
  7. [28]
    Ms Allen states that the slope of Mr and Mrs Nichol’s land is mostly bare and vulnerable to erosion. She states that there is no engineered structure in place to retain the face of the steep cut in the slope, behind and above the garden vegetation.
  8. [29]
    Ms Allen states that the trees provide amenity and screening to the tree-keeper’s yard, although some of the palms had grown to a height where they were no longer providing any benefit for screening of his house and garden. Ms Allen considers that the fig trees, palms, bamboo and other vegetation contributed to the stability of the slope. Mr and Mrs Nichol dispute this and rely on the evidence of Mr Tayler.
  9. [30]
    Ms Allen states in her report:[9]

The view from the applicant’s house and rear deck towards the southeast and east was expansive; however it was evident from historical photos provided by the Applicant as well as from site observations that vegetation had grown to partially obstruct that view. The view of the horizon was partially obstructed by vegetation within the tree keeper’s land but also by vegetation on other neighbouring properties to the north-east and south.

  1. [31]
    Ms Allen continued:

The views to the south were substantially dominated by remnant and regrowth native vegetation that was within the tree keeper’s land as well as other neighbouring properties. The vegetation was not dense and afforded glimpses of the nearby ridgelines. It was evident that regrowth native trees had established following the original land clearing and it could have been predicted that the views from the applicant’s land in that direction would be affected over time. It was not reasonable to expect that native trees would have been removed or maintained to provide a clear view of distant horizons.

  1. [32]
    Ms Allen further states:[10]

The main view was that over the tree keeper’s dwelling roof towards the coast and eastern horizon. The offending vegetation within the tree keeper’s land consisted of palm trees. The foliage of the bamboos, the fig tree and other plants was below the view line and did not currently obstruct the view. There was however a possibility that both the bamboos and the fig tree could grow in height and also obscure the view of the horizon. Since the palms had not yet achieved their maximum potential height it was also evident that they would grow through and eventually above the view of the horizon from the lower floor and deck. At least one of the palms had already grown so that the horizon was visible below the palm canopy, but the palm stem was within the view from the deck. That same palm had partially obstructed the horizon within the view from the upper floor bedroom.

It was apparent that the applicant had lived for many years with an unobstructed view of the horizon, but as the palms had matured they had recently grown into the view line above the tree keeper’s roof. While this view is not entirely obstructed and the palms would be expected to grow through and above the view, the resulting partial disruption of the view was not acceptable to the applicant. Were the palms to grow through and above the view from the lower floor and deck, the applicant was worried they would be more likely to obscure the coastal view from the upper floor and in any case the applicant did not want to tolerate the view of the palm stems.

  1. [33]
    Ms Allen expressed the following opinion:

Given that the palms were likely planted in the late 1980s it would have been reasonably expected that they would eventually grow into the view from the Applicant’s land within two decades and that even in less than ideal growing conditions that they would achieve a mature height of about 20 metres or more.

  1. [34]
    Ms Allen further stated that:[11]

The more recent extension of the deck within the Applicant’s property had decreased the privacy within the tree keeper’s land so that there was a direct view over and into the dwelling from the deck. It was reasonable that the tree keeper had planted bamboo to achieve a quick growing and effective screen. That screen was not completely effective, but it was expected that any current gaps would eventually close with future growth. …

  1. [35]
    Of the effects claimed in the application Ms Allen found that:
  • Some of the palm trees had grown to partially obstruct the applicant’s view from the rear deck, and living areas.
  • The tallest palms had grown so that their foliage was above the view from the lower level but the foliage had partially obscured the view from the upper floor.
  • The shorter palms currently had no significant effect but had the potential and were likely to eventually grow into the view.
  • The bamboo currently had no effect; it was possible but unlikely that  the bamboo would grow to obstruct the view from the applicant’s property.
  • The Fig tree currently had no effect but had the potential to obstruct the view from the lower floors if it grew in height. [12]
  1. [36]
    The focus of Ms Allen’s report was the impact of the trees on Mr and Mrs Nichol’s view. While that was also the focus of much of the evidence before the Tribunal, Mr and Mrs Nichol submit that the bamboo, if it continues to grow, could potentially cause damage to their deck in windy weather. No such effect was observed by Ms Allen or initially claimed by Mr and Mrs Nichol. Ms Allen stated in her report that the trees did not trespass on Mr and Mrs Nichol’s land and “no infrastructure conflict” was observed.[13]
  2. [37]
    There is no evidence before the Tribunal that the bamboo is making contact with Mr and Mrs Nichol’s property at the current time. Further, there is no compelling evidence on which the Tribunal could be satisfied that it is more likely than not that if the bamboo continues to grow that it would cause ‘serious damage’ to Mr and Mrs Nichol’s land or any property on their land. In the absence of such a finding, the Tribunal cannot make an order to remedy, restrain or prevent such damage. Further, there is no compelling evidence, leaving aside the issue with the view, that the trees are causing any other substantial, ongoing or unreasonable interference with Mr and Mrs Nichol’s enjoyment of their land. The Tribunal is not satisfied that any of the trees in dispute are now or are likely within the next 12 months to cause serious damage to Mr and Mrs Nichol’s land or property. Further, leaving aside the issue of the view, the Tribunal finds that the trees are not causing and are not likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the use and enjoyment of Mr and Mrs Nichol’s land.
  3. [38]
    In relation to the issue of the view, Ms Allen expressed the opinion that the removal of remnant and regrowth native trees within the tree-keeper’s land to facilitate views from the Mr and Mrs Nichol’s dwelling and deck was unjustified and overall deleterious to the site given that it was naturally occurring on the land, was a component of the character of the site and broader area and served vital environmental roles and forage for native fauna, as well as providing storm water mitigation and slope stabilisation. Indeed, Mr and Mrs Nichol do not seek the removal of any regrowth native trees.
  4. [39]
    Ms Allen expressed the opinion that the removal of the palm trees with foliage within the ‘main view’ over the top of the dwelling of the tree-keeper’s land was a reasonable request since they no longer provided an effective privacy screening function to the tree-keeper, and they were likely to continue to grow within the view from the deck and into the view from the upper floor for some years. Ms Allen said while it was argued that some of the palms could frame and enhance the view, this argument was not accepted by Mr and Mrs Nichol. Ms Allen went on to state that given the palm trees were not planted by Mr Campbell, there would be loss of landscape amenity and the benefit of removal would be entirely with Mr and Mrs Nichol, the request that all costs be borne by Mr Campbell appeared to be unjustified.[14]
  5. [40]
    There is no general right to a view in Queensland. The Act creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act. In Vecchio v Papavasiliou[15] the learned Senior Member considered s 66(3)(b)(ii) of the Act and said that the section creates a right to a view from a dwelling that existed at the time the neighbour took possession of the land. The learned Senior Member stated:[16]

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.

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.

  1. [41]
    Following the reasoning in Vecchio v Papavasiliou, as there was no dwelling at the time Mr and Mrs Nichol took possession of the land, because there was no house, there was no view capable of protection.
  2. [42]
    Mr and Mrs  Nichol argue that this case is distinguishable from the case of Vecchio v Papavasiliou as Mr Vecchio did not commence to build his home on the vacant lot for a period of two years in which time his pre-existing view had commenced to be eroded by the planting by the Papavasilious, of a replacement hedge, taller than the original. Mr and Mrs Nichol argue that at all times between the purchase of the land and the construction of their home, which they commenced almost immediately they enjoyed an unobstructed view. The Tribunal does not consider that the timing of the build was a compelling fact in the reasoning of the Tribunal in Vecchio’s case as set out above. Nothing in the reasoning of the Tribunal suggests that it was.
  3. [43]
    The Tribunal has considered whether the present case is distinguishable on the basis that when Mr and Mrs Nichol took possession of the land there was a view from the land itself. The house did not have to be built to establish a view. The palm trees were not then visible. In the Vecchio case, the shrub was likely present at the time the land was purchased by the neighbour and the house was built to obtain a view. Again, however, it is not clear from the reasoning in the Vecchio case that such a factual difference would have altered the reasoning of the Tribunal and its conclusion in relation to the issue of the view.  The reasoning of the Tribunal focussed on the absence of the house rather than the view from the land at the time the neighbour took possession.  Whilst not bound by the decision in the Vecchio case, the Tribunal is loathe to depart from the reasoning of the Senior Member. Based on the reasoning in Vecchio v Papavasiliou, the Tribunal finds that s 66(3)(b)(ii) of the Act is not satisfied in this case.
  4. [44]
    However, even if the Tribunal is wrong in that regard, for reasons that follow, the Tribunal does not consider that the outcome in this case would be any different if the Tribunal followed the approach set out by the Appeal Tribunal in Laing & Anor v Kokkinos & Anor (No 2).
  5. [45]
    Mrs Nichol relies on Kokkinos v Laing.[17] She argues that in that case the applicant had multiple viewpoints available to them, but it was found that there was a loss of 50% of the view so that the obstruction of the view was a severe obstruction. In that case, it was the view of the ocean that was found to have been obstructed by 50%.
  6. [46]
    The case of Kokkinos v Laing  was the subject of an appeal. In Laing & Anor v Kokkinos & Anor (No 2),[18] the Appeal Tribunal found that there was in fact only a moderate obstruction of the view by the subject trees, but the obstruction of the view would be severe in the next 12 months. In doing so, the Appeal Tribunal found that the learned Member had not adopted the correct approach when assessing the degree of obstruction of the view. The Appeal Tribunal said: “The learned Member’s reasons for decision showed that she did not consider the totality of what could be seen from the viewing locations, but rather sliced up that outlook and only assessed the obstruction to the partial ocean views that were available at the time the Respondents took possession of the property.”[19]
  7. [47]
    In Laing & Anor v Kokkinos & Anor (No 2), The Appeal Tribunal referred to Haindl v Daisch[20] where the Land and Environment Court of New South Wales (LEC) described a “view” as:

…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 obstruction of the view from a particular viewing location on some incremental slice by slice basis. [21]

  1. [48]
    The Appeal Tribunal went on:[22]

I am persuaded the natural and ordinary meaning of the term, and the context in which it is found in the Act, is consistent with the approach adopted by the LEC: ‘a single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis.’

  1. [49]
    The Appeal Tribunal said the use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.[23] Further the Appeal Tribunal said:

The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales.[24] In Haindl v Daisch[25] the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements.[26] The LEC 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 most 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.[27]

  1. [50]
    The Appeal Tribunal identified the following questions to be asked in relation to determining whether or not there is a severe obstruction of the view:
    1. What was the nature of the view at the time of possession?
    2. From where is the view seen? and
    3. What is the extent of the view lost by the trees?
  2. [51]
    The Tribunal considers that the approach adopted by the Appeal Tribunal is the correct approach.

What was the nature of the view at the time of possession?

  1. [52]
    The Appeal Tribunal said that 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.[28]
  2. [53]
    At the time of possession of the land, the view was an unobstructed coastal view over the hinterland of the Gold Coast. At that time, much of the land had been cleared for development. The view was towards the south east and east. The views were expansive and largely unobstructed.[29] Such a view would be highly valued. Mr and Mrs Nichol took possession of the land more than 20 years ago so that even the coastal skyline has changed significantly in that time. Further, the natural vegetation both on the tree-keeper’s land and on blocks adjoining the tree-keeper’s land and the neighbour’s land has grown extensively in that time. Whilst the Tribunal has found that the palm trees in dispute had been planted, they were immature trees at the time that Mr and Mrs Nichol took possession of the land.

From where is the view seen?

  1. [54]
    The Appeal Tribunal said that the second step identifies the part of the dwelling the views exist from and the reasonableness of protecting views from such areas: views across side boundaries are more difficult to protect than front and rear boundaries; sitting views are more difficult to protect than standing views.[30]
  2. [55]
    The photographs provided by Mr and Mrs Nichol show that there was a view from inside the dwelling - from the kitchen and family room and the formal dining room area. There was also a view from the deck at the time that it was completed. There was not only a view from a seated position from the internal family room and dining room but also from the deck and there was also a view from a standing position from each of those places. From the top floor bedrooms there was an unobstructed view of the horizon which currently remains largely unobstructed. The view was over the rear boundary. That is evident from the photographs and video lodged by Mr and Mrs Nichol.[31]
  3. [56]
    Mr and Mrs Nichol extended the deck in 2011, prompted, they say, by the growth of the palm trees. The deck was extended in an attempt to maintain the view from the first level, of the coast skyline with its buildings and night lights. That is the particular view that Mr and Mrs Nichol are concerned to restore and protect.

What is the extent of the view that is lost by the trees?

  1. [57]
    Ms Allen gave oral evidence at the hearing that, in her opinion based on her inspection, the obstruction of the view was, at that time, a “mild” obstruction. She did not consider that the obstruction of the view would change very much in the next 12 months. Mr Campbell urges the Tribunal to find that the obstruction of the view is not severe and relies upon Ms Allen’s evidence and the photographs he tendered and those in Ms Allen’s report.
  2. [58]
    At the hearing, Mrs Nichol said that the view is now more obstructed than it was at the date of Ms Allen’s inspection and the date the video was taken which was in about August 2015.  Mrs Nichol said that a person must now stand on tiptoe at the edge of the deck to see the view. The Tribunal notes that there was only a month or so between the lodgement of the video and the date of the hearing.
  3. [59]
    The Tribunal notes that in Ms Allen’s report she referred to the ‘main view’ over the top of Mr Campbell’s dwelling.  It was clear from Mrs Nichol’s evidence that she was particularly concerned with retaining this view with the city skyline and night lights.
  4. [60]
    From the photographs, the Tribunal considers that the pre-existing coastal view from the seated position in the lounge room and family room is currently severely obstructed. However the Tribunal is mindful of what the Appeal Tribunal said regarding sitting views being more difficult to protect than standing views.
  5. [61]
    In the context of a consideration of the totality of the view, taking into account the  photographic as well as the video evidence[32] provided by Mr and Mrs Nichol, the Tribunal considers the obstruction caused by the tree- keeper’s trees is no more than moderate. The video and photographic evidence shows that, through the palm trees and the bamboo, the city buildings and the horizon remain visible and to the south east the mountains are also visible. The city’s night lights also remain visible through the canopies.[33]
  6. [62]
    It is clear that other naturally occurring vegetation has obstructed the pre-existing view over time to the south east and to the east. Some of that vegetation is not on Mr Campbell’s land. The Tribunal accepts Ms Allen’s opinion that it is not reasonable to expect that native trees would be removed or maintained to provide a clear view of distant horizons.[34] The Tribunal considers it unreasonable that after the passage of more than 20 years, Mr and Mrs Nichol’s pre-existing view should now be protected to the extent it existed when they took possession of the land, unobstructed by not only the trees in dispute but the naturally occurring vegetation that has grown over that time.
  7. [63]
    The Tribunal considered whether the trees are likely within the next 12 months to cause a severe obstruction to a view. The palm trees will continue to grow.
  8. [64]
    The undisputed evidence of Ms Allen is that in about five years the palm trees will grow through the visible view from the first floor and may partially obstruct the view from the top floor.[35]
  9. [65]
    Based on the photographs of the view from the second level as well as the video evidence, the Tribunal is not satisfied that when that occurs the obstruction will be a severe obstruction of the view from that level.
  10. [66]
    Further, in terms of s 66 of the Act the Tribunal must consider whether the interference is not only substantial and unreasonable but also ongoing. As the palm trees are likely to grow through the view so that only the stems and not their wider fronds will be in the line of the view from the first level of Mr and Mrs Nichol’s home, the Tribunal considers that the interference is not an ongoing interference.
  11. [67]
    Based on the photographic and video evidence and the evidence of Ms Allen regarding the growth rate of the palm trees, the Tribunal is not persuaded that it is likely that the palm trees are now or, at least within the next 12 months, likely to cause a severe obstruction to the neighbour’s view from their dwelling from either the first or the second floors of their home.
  12. [68]
    Further, based on the photographic and video evidence and Ms Allen’s evidence regarding the bamboo should it reach its height limitation of beyond 10 metres, the Tribunal is not satisfied that the bamboo and the fig tree in addition to the palm trees when considered together are likely, within 12 months, to cause a severe obstruction of the view.

Conclusion

  1. [69]
    For those reasons, the Tribunal concludes that s 66(3)(b)(ii) is not satisfied. It follows that s 66(2)(b)(i) and (ii) of the Act is not satisfied in relation to the issue of the view. For the reasons previously given, the Tribunal also concludes that there is no other basis on which s 66(2)(b)(i) and (ii) of the Act is satisfied in this case. Therefore, there is no basis on which the Tribunal can make any order under s 66 of the Act. The application is dismissed.

Footnotes

[1] Certificate of Title.

[2] Certificate of Title.

[3] Exhibit 5.

[4] Exhibit 7.

[5] The Act, s 48.

[6] The Act, s 49.

[7] The Act, s 66(3)(b)(ii). There is no dispute that s 66(3)(a) is satisfied.

[8] Exhibit 5 [2.1.3] at p.6.

[9] Exhibit 5, [2.3.1] at p.8.

[10] Exhibit 5, [2.3.1] at p.9.

[11] Exhibit 5 pp.9-10.

[12] At paragraph 2.4.1.

[13] Exhibit 5 at p.4 [2.1.2] and p.7 [2.3].

[14] Exhibit 5, [2.4.3] at p.11.

[15] [2015] QCAT 70.

[16] [2015] QCAT 70, at [10] and [11].

[17] [2012] QCAT 580.

[18] [2013] QCATA 247.

[19] [2013] QCATA 247 at [46].

[20] [2011] NSWLEC 1145.

[21] Haindl v Daisch [2011] NSWLEC 1145 at [26]; Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [44].

[22] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [45].

[23] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [36].

[24] Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14E(2).

[25] [2011] NSWLEC 1145.

[26] [2011] NSWLEC 1145 at [64]; Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [37].

[27] [2011] NSWLEC 1145 at [64]; Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [37].

[28] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [39].

[29] Exhibit 2 photographs 1, 2 and 3 stapled together and Exhibit 3 photographs 1, 2, 3 and 5.

[30] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [40].

[31] Exhibit 3, photographs 18, 19 and 20 and Exhibit 4.

[32] Exhibits 2, 3, 4 (Applicants’ photographs and video) and 9 (Respondent’s photographs).

[33] Exhibit 3 photographs 9, 10, 11 and 12.

[34] Exhibit 5 at p.8.

[35] Exhibit 5 paragraph 3.0 at p.13.

Close

Editorial Notes

  • Published Case Name:

    Shirley Nichol and Joseph Nichol v Glen Raymond Campbell

  • Shortened Case Name:

    Nichol v Campbell

  • MNC:

    [2016] QCAT 57

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    09 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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