Wiseman v RPD Qld Pty Ltd[2017] QCAT 81

REASONS FOR DECISION

Introduction

1. [1]
   Ms Wiseman and Mr Matthews (neighbours) are the owners of land at 119 Adelaide Street East, Clayfield. Their land is behind that owned by RPD QLD at 123 Adelaide Street, Clayfield. They allege that trees growing on RPD QLDs (tree-keeper) land are interfering with their views and have applied to the Tribunal for orders that the trees owned by RPD QLD be trimmed to a level which will ensure that those views are reinstated.
2. [2]
   The Tribunal has jurisdiction to hear such applications under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011(Qld) ND Act. The requirements of the ND Act are that a neighbours land is affected by a tree^[1] situated on land which adjoins the neighbours land. In this case the alleged affect is substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land as the result of obstruction of a view.
3. [3]
   Where the alleged interference is obstruction of a view the Tribunal may make an order only if the tree rises at least 2.5 m above the ground and 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^[2].
4. [4]
   It is clear that the neighbours land adjoins that of the tree-keeper and that the trees in question are in excess of 2.5 m above the ground. They are described in the application as “the strip of Harpulia boundary trees, which were planted about 10 years ago”, and “are now in excess of 8.5 metres high”. They requested that the trees be reduced in height to 4 metres and that they be pruned every 6 months.
5. [5]
   The ND Act requires that the neighbours have made a reasonable effort to reach agreement with the tree-keeper^[3]. Ms Wiseman and Mr Matthews wrote to Ms Michelle Catelan, the director of RPD Qld on I September 2015 requesting her to trim the trees on both sides of the tennis court.
6. [6]
   They stated in the correspondence that when they purchased their property six years ago they had broad, unobstructed views to the airport and to Moreton Bay on the right side and sweeping views out to the suburbs and hills to the left.
7. [7]
   Ms Wiseman and Mr Matthews note in the letter that the trees on the airport side were trimmed last year after they raised this issue which was appreciated. And at that time (Ms Catelan) said she would trim the trees every six months. This had not been done and this is the reason they are contacting her again.
8. [8]
   RPD Qld in its response noted that on 10 June 2014 the Harpulia trees along the western side of the property were trimmed to a height of around 6 metres at a cost of approximately $6,930.00 and that a gardener is employed at a cost of approximately $6,326.00 per annum to trim and maintain these trees.  That the age of the trees has been estimated by Senior Arborist, Matt Williams as being 15 years old and they were well established when Ms Wiseman and Mr Matthews moved into their property.

Jurisdiction

9. [9]
   The question for determination is whether the trees cause severe obstruction of a view, from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land. Ms Wiseman and Mr Matthews provided copies of two photos with their application purporting to show the original tree height and the tree height in August 2015.
10. [10]
    The Appeal Tribunal has determined that the Tribunal may orders under the ND Act in respect of views which have been lost prior to the introduction of the ND Act in 2011^[4].
11. [11]
    Justice Wilson while president of the Tribunal in Laing & Anor v Kokkinos & Anor (No 2)^[5] set out the matters for consideration by the Tribunal when making an order in respect of severe obstruction of a view as follows:

There is a three step process which the tribunal must follow when determining applications for orders under s 66(3)(b)(ii) of the Act:

1. First, consider what view existed when the applicant took possession of the property.
2. Second, determine whether the trees on the adjoining property are causing a severe obstruction of that view.
3. Third, if the trees are causing a severe obstruction, balance the interests of the parties in determining whether to make an order at [34].

Within this framework a “severe obstruction” may be characterised as a jurisdictional fact, in that it is satisfaction of the criterion which enlivens the statutory power and discretion at [35].

The term “severe obstruction” is not defined within this context, it would appear that use of the word severe in s 66 of the Act means the obstruction must be considerable at [36].

In Haindl v Daisch^[6] the New South Wales Land and environment Court observed that the assessment of severity involves both qualitative and quantitative elements.

In determining the nature of the view that is obstructed assistance is provided by the decision in Tenacity Consulting v Warringah [2004] NSWLEC 140. That decision adopted a four step process of which the first three steps are relevant to this jurisdiction.

The first step is to identify and value to 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.

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 then front and rear boundaries; sitting views are more difficult to protect than standing views.

The third step assesses the impact of 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 at [38] to [42].

The term “view” is not defined in the Act and has no fixed legal meaning independent of the statutory context in which it is found at [43].

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^[7]” at  [45].

In deciding what orders are appropriate the Tribunal must consider the matters listed in Chapter 3, Part 5, Division 4 of the Act namely ss 72, 73 and 75 at [60].

12. [12]
    Wilson J summarised the matters in Division 4 as “In light of those sections the question for the Tribunal involves, on the one hand balancing the interests of maintaining a tree at its current height, width or shape against fairness to neighbours whose views have been severely obstructed”^[8].

The view that existed when the neighbour took possession of the land?

13. [13]
    Ms Wiseman and Mr Matthews allege that at the time they took possession of their property they had views from their verandah to the west to the Glasshouse Mountains and to the north-east to Moreton Bay. There are no photos which they acknowledge as showing those views.
14. [14]
    They instead rely on the evidence of the former owners Ms Madelaine Goakes^[9] and Mr Greg Harris^[10]; their current neighbour Mrs Penny Campbell^[11], who is an applicant in another tree application involving RPD Qld and Mrs Aileen Brockett another bidder at the auction at which they purchased their property^[12]. There is also an advertising brochure for the property which states “The stunning North East verandahs soak up the spectacular views across to Moreton Bay”^[13].
15. [15]
    Ms Goakes stated that the trees on the property at 123 Adelaide Street East were at a level that did not obstruct the expansive views to the east at the time Ms Wiseman and Mr Matthews purchased the property. She notes that the agent she chose to list the sale of the property with was the husband of the owner of 123 Adelaide Street East.
16. [16]
    Mr Greg Harris, the other former owner of the property with Ms Goakes stated that the house was originally listed with Gail Havig of Havig & Jackson and provided a copy of photos taken by them on or around 8 January 2008. He said that the house failed to sell so we spoke to Matt Moore and organised an Auction campaign with date set for 26 April. He said that one of the main features of the house were the views across Moreton Bay so we were keen for the trees to be trimmed for the auction. Matt facilitated the trimming of the trees prior to the auction. Mr Harris said he was in England at the time of the auction and could not say what the views were on that day and that neither himself nor Ms Goakes had any photos from around this time.
17. [17]
    Mrs Penelope Campbell, the owner of another lot which was nearby to the tree-keeper’s lot and an applicant in another tree dispute with the tree-keepers. She wished to verify that the applicant’s property had a distant view panorama from the east to the west at the time they purchased it in 2008. Ms Campbell attended an open house inspection of the property at that time and noted that the views were magnificent. RPD QLDs counsel considers that Ms Campbell’s evidence should be given little weight as she was an applicant in another tree matter and could potentially benefit from an order made in this application.
18. [18]
    Ms Wiseman and Mr Matthews provided a copy of a photo^[14] looking east which they say was taken after the trees were pruned to an acceptable height in June 2014. It was later made clear that the photo of the original tree height was taken at the time of the 2014 pruning as there were no photographs taken at the time of taking possession of the property. Ms Wiseman and Mr Matthews maintained that this was a similar height to the trees in 2008.
19. [19]
    Mrs Aileen Brockett was a registered bidder at the auction in 2008. She stated that one of the drawcards to us for the purchase of the property was the extensive views to the North East, capturing views to Moreton Bay. She visited the property on 1 August 2016 and says she was shocked at how much of the view had disappeared. She said that as a tall person (177 cm) standing on the verandah, the view to the North East had been severely limited by the growth of the trees to the eastern side of the tennis court of the property in front, despite being recently “cut back”  by the tree owner. Ms Brockett states in regard to the western views, we cannot say with certainty what views were visible at the time of auction. She states that if she had been the successful bidder and became owner of the property she would be very disappointed if the views at time of purchase were no longer available to the owner. Mrs Brockett attaches a copy of a photo taken at the time of her visit on1 August 2016.
20. [20]
    Peter Matthews in his affidavit^[15] confirmed that he and Ms Wiseman purchased the property at 119 Adelaide Street East at auction on 26 April 2008, subsequently becoming owners on 14 August 2008. That they purchased the property because of the views. At the auction day and when they subsequently moved into the property, both Robin and he distinctly recall the property had sweeping views to the west over to the Glasshouse Mountains and to the east over Moreton Bay. Since then the trees have grown to an unacceptable height and have obscured the views.
21. [21]
    Michelle Catelan filed an affidavit dated 6 July 2016^[16] in support of RPD Qld. Ms Catelan is the sole director of RPD Qld and has also occupied the property at 123 Adelaide Street East since January 2005. Ms Catelan confirms that there are rows of Harpulia pendula (Queensland Tulipwood) along the western and eastern boundaries of the property.
22. [22]
    She states that when RPD purchased the property in 2005 it was specifically marketed as having a superb structured garden. That the ad states “nestled on exceptional 2281 grounds. Superb structured gardens.”  She states the trees were already well-established when she moved into the property in January 2005. They were a similar height to the height they are now, this is evident by the photographs she obtained from Havig & Jackson Real Estate, and these photos appeared in an advertisement for the property in the Courier mail newspaper in early 2004.
23. [23]
    Ms Catelan states that it is evident by these photographs that she has caused regular trimming and maintenance of the trees.
24. [24]
    Ms Catelan notes that the previous owners of the property at 119 Adelaide Street East approached her then husband Matthew Moore as agent to sell the property when he was working as an agent for Havig and Jackson. She caused to be obtained from Havig and Jackson copies of the professional photos taken of the applicant’s property which were used in the advertising campaign in 2008. The photos are taken from the second storey verandah of the applicant’s house. The verandah is located along the northern and eastern sides of the house. First photo MC-12 is taken from the eastern section of the verandah at the southern end of that section, looking along the eastern verandah section to the north. The photo MC-13 is looking from the north-eastern corner of the verandah to the north or northeast.
25. [25]
    Ms Catelan states that the height of the trees indicated in the photos MC-12 and MC-13 is consistent with the height she remembers them to be at the time of the auction in April 2008 when the property was purchased by the applicants. She is aware of the applicant’s submissions with regard to the Trees on the eastern boundary being trimmed directly before the auction in April of 2008. Her recollection is that the trees were not trimmed prior to the auction in 2008. The trees were at the height depicted in the photographs in MC-12 and MC-13. She refers to the photos which appear in the application and summary of position of evidence of the applicants dated 1 March 2016.
26. [26]
    Matthew Moore provided an affidavit dated 6 July 2016^[17] in support of RPD Qld. He stated that he was employed by Havig & Jackson real estate as real estate agent during the period of approximately 2005 to 2009. Another agent and himself were responsible for selling property at 119 Adelaide Street East at auction in 2008. He has read the applicant’s summary of additional evidence dated 17 June 2016 which includes an email from Greg Harris and a letter from Madelaine Goakes. His recollection is that although the trees were trimmed occasionally, they were not trimmed for, or in advance of, the auction.
27. [27]
    To his knowledge the applicants first viewed the property on the auction day on 16 April 2008. On the day of the auction there was a partial long-range view to the north to north-east, from 119 Adelaide Street East verandah. The view from the 119 Adelaide Street East property was partially obstructed by the trees on the 123 Adelaide Street East property at the time of the auction.
28. [28]
    He attaches exhibits which he says are the true and correct photographs as he remembers the view on the day of the auction of the property in 2008.
29. [29]
    He can’t recall the name of the photographer that was engaged to take these photographs, he is certain the photographs were professionally taken due to the way the table and chairs have been arranged in the photograph. It was the standard practice of Havig & Jackson real estate that photographs which were to be used to advertise an auction would be taken around 28 days before the auction, having regard to these usual practices, I expect the photos would have been taken in March 2008 and this accords with his recollection of the trees in issue.
30. [30]
    Mr Moore states that the photograph provided by the applicants in their application to the Tribunal are not as he remembers during the auction period of the property he attaches a copy of that photograph.
31. [31]
    It was submitted on behalf of RPD Qld by Mr Dillon that the advertising brochure is consistent with the hyperbolic language employed by real estate agents and the brochure does not actually contain pictures of the views.
32. [32]
    Ms Wiseman and Mr Matthews say in rebuttal to RPD’s evidence that the evidence of Matt Moore refers to the trees at Auction date being the height of photos which were taken on 9 January 2008.  And that Mr Matthews is not independent as Ms Catalan’s ex-husband. Based on the evidence from Greg Harris the trees were trimmed just prior to the auction which was on April 26 2008. Ms Catelan also states that the photo on page 26 represents the size of the trees at auction date. This is clearly different to the information supplied by Ms Goakes, Mr Harris and the advertising brochure.
33. [33]
    I am satisfied that there is evidence of views from the property at 119 Adelaide Street East towards Moreton Bay in particular the advertising brochure for the sale of the property and that of Ms Brockett, Ms Goakes and Mr Harris. The extent of the views can be seen in Photo 1 directly to the east which is obscured by the roof of the house next door even at the level which Ms Wiseman and Mr Matthews say is the original tree height. The view to the north east can be seen in MC-13 of Ms Catelan’s affidavit of 6 July 2016. Ms Catelan and Mr Moore say that the tree height on the eastern side of the RPD Qld property at the time of the auction is that in the photos which were prepared by Havig & Jackson. Mr Harris states that those photos were taken on 8 January 2008 and Ms Wiseman and Mr Matthews have some evidence to support this. Mr Harris states that the house failed to sell at auction initially and that the trees were trimmed with the assistance of Mr Moore prior to the next auction. Mr Moore denies this. It is submitted that the brochure may have been hyperbole. I do not consider this likely. There are either views or there are not. If parties become interested in a property because of the possibility of views as mentioned in a brochure it would be expected that when they attend to inspect that there would be views and the photos taken in January 2008 do not accord with the views as described in the advertising brochure.
34. [34]
    I am satisfied that the trees on the eastern side of the property at 123 Adelaide Street East were trimmed prior to the auction on 26 April 2008 to ensure that the views across to Moreton Bay were visible. Ms Wiseman and Mr Matthews say that those views were still available when they took possession of the property in August 2008 as this is a relatively short period of three months and the arborist, Mr Matt Williams estimated that the trees grow at about 200 mm a year without pruning or 500mm annually if over pruning occurs.^[18]
35. [35]
    The height of the trees at the time of the auction is unknown. Ms Catelan confirmed in the response that the trees had been trimmed to a height of around 6 metres on 10 June 2014 and this is the level that Ms Wiseman and Mr Matthews said was the original tree height. This of course is not accepted by Ms Catelan she considers that the trees were at the same height as in the photos taken on 8 January 2008. I have found that the trees were trimmed after the photos taken on 8 January 2008 in accordance with Mr Harris’s recollection.
36. [36]
    Ms Wiseman and Mr Matthews have also asked that their views looking west be considered by the Tribunal. They say that they had views to the Glass House Mountains. Ms Goakes said that the trees at the property at 123 Adelaide Street East directly in front of 119 Adelaide Street East did not obstruct the expansive views to the west in any way at the time they purchased the property. Mrs Campbell said that there was a distant view panorama from the east to the west and the views were magnificent. Neither Mr Harris does not mention the views to the west. Mrs Brockett says in regard to the views to the west, that we cannot say with certainty what views were available at the time of the auction. The advertising brochure for the auction also makes no mention of views to the west.
37. [37]
    Ms Catelan^[19] notes that Ms Wiseman and Mr Mathews have not provided any photographs of the their views to the west and the views to the west would at the time have been obscured by the trees on their property and the trees and house on the property at 115 Adelaide Street East and also other housing and vegetation, as well as the powerlines and fences running down the easement.
38. [38]
    There is little evidence of views to the west and in particular there would be no way of determining if any views had been obstructed as I have no photographic evidence of the area from which the views were originally seen. I am therefore not satisfied that there was a view from a dwelling to the west at the time Ms Wiseman and Mr Matthews took possession of the land.

Whether the trees on the adjoining property are causing a severe obstruction of that view?

39. [39]
    Mr Matthews stated^[20] that within about 3 to 4 years after moving in the trees started to obscure our view. In June 2014 after writing a letter and speaking to Michelle Catelan, asking her to trim the trees, these were trimmed to an acceptable height. Michelle Catelan told Robin (Matthews) she would maintain the trees at that height by trimming them every six months. By September 2015, the trees had fully regrown. We sent Michelle (Catelan) a letter which was ignored. We subsequently made an application to QCAT.
40. [40]
    Ms Wiseman and Mr Matthews produced further evidence, in the form of a hearing presentation^[21], which was allowed following some amendments agreed between the parties. The presentation notes that the trees were trimmed on the eastern side in June 2014 to a height which gave them the previous views they had to Moreton Bay. RPD Qld has confirmed that the height of the trees at this time was 6 metres.
41. [41]
    After that the trees were not trimmed again until 28 July 2016. On July 28 the trees on the eastern side have been trimmed by RPD Qld to a height that (Ms Wiseman and Mr Matthews say) is still too high for them to have a view while sitting on our front verandah which is also the major entertaining area in the house. Ms Wiseman and Mr Matthews say there is now only a minimal view to the east.
42. [42]
    Mr Williams^[22] the arborist in his reports stated that the trees on the eastern boundary at 123 Adelaide Street east had been at a height of 8 metres on 7 April 2015 and 9 metres on 28 January 2016. Ms Catelan in her further affidavit^[23] stated that she had arranged for the trees on the eastern side to be trimmed to the same specifications and height as is usually attended to. She considers are now at the same height that they were in 2008 when Ms Wiseman and Mr Matthews purchased their property.
43. [43]
    I note that the comparison photo used to from the series which have been identified as being taken on 8 January 2008 which I am satisfied was before the trim prior to the auction.
44. [44]
    From the above it is clear that Ms Wiseman and Mr Matthews have the views they say they had at the time they took possession of the property when the trees are at a level of 6 metres and the last time they were at this height was on 10 June 2014. The trees were at a height of 8 metres on 7 April 2015 and by 1 September Ms Wiseman and Mr Matthews were writing to Ms Catelan complaining about the height of the trees which had now fully regrown^[24]. Prior to the trees being again trimmed on 28 July 2016 they were at least 9 metres high.
45. [45]
    As a result of the trees being trimmed Ms Wiseman and Mr Matthews have regained views from a standing position though not a sitting position as they had at the time they took possession of the land. It is clear that the Harpulia trees grow will grow to obstruct views if left untrimmed.
46. [46]
    I am satisfied that it is only with the trimming of the views that Ms Wiseman and Mr Matthews have had any views reinstated and that as a result the trees severely obstruct the views from a dwelling on their land that existed when they took possession of the land.

Appropriate orders

47. [47]
    As mentioned when considering the order to make the Tribunal must consider the matters in ss 72, 73 and 75.
48. [48]
    RPD Qld submitted that the trees contribute to the local ecosystem and to biodiversity, providing a home to local birdlife. The tree Harpulia Pendula is indigenous to the area. The trees contribute to the natural landscape and the scenic value of the land. The trees contribute to the amenity of the land on which it is situated, including to the respondents privacy, landscaping, garden design and protection from sun wind and noise. The trees existed before Ms Wiseman and Mr Matthews purchased their property and even if trimmed there are other built forms and vegetation in the area which obscure their views.  Ms Catelan also regularly trims the trees and pruning the trees too much will encourage even more growth and negatively affect the trees.
49. [49]
    Ms Catelan^[25] says that the privacy and amenity specifically afforded by the trees was a fundamental reason for the purchase of the property. The trees preserve the privacy of the property by shielding the windows of the house and the rear yard of the property, including the pool and the tennis court area, from overlooking by adjacent and nearby neighbours.
50. [50]
    The trees also perform the useful function of screening the tennis court lights when they are used at night. The trees are pleasant and enhance the amenity of the property. If their height was reduced adjacent houses would become more prominent, reducing the pleasantness of the property and its views.
51. [51]
    Ms Wiseman and Mr Matthews submit that currently look directly into the respondents tennis court. Trimming the trees on either side of the property will not affect the respondent’s privacy. The respondent is acting in a headstrong fashion and is taking a stand based on a lack of emotional intelligence on how to work collaboratively with her neighbours.
52. [52]
    Ms Wiseman and Mr Matthews have requested that the trees be trimmed to 4 metres in height and be trimmed on a six monthly basis. Mr Williams^[26], the arborists considers that trimming the trees too low and too often will encourage growth. He recommended that the 5 Harpulia trees be maintained at between 6 – 7 metres and be trimmed annually. Ms Catelan was not averse to an annual trimming but did not wish the trees to be trimmed as low as 6 metres as that tended to make the trees look hedge like and that the health of the trees may have suffered from speaking with her arborist^[27].
53. [53]
    I am satisfied that the trees are an integral part of RPD Qld’s landscaping and provide amenity and privacy to the occupants of the property at 123 Adelaide Street East. While Mr Matthews indicated that they look into the property the privacy provided by the trees is for the neighbours on the left of 123 Adelaide Street East. Therefore the trees should be preserved while ensuring that Ms Wiseman and Mr Matthews have the use and enjoyment of their land.
54. [54]
    This requires that the height of the trees be maintained to ensure that Ms Wiseman and Mr Matthew’s views are not severely obstructed. They have asked that the trees be trimmed to 4 metres they have not though provided any evidence to prove why they should be trimmed to that level. The evidence is that at a height of 6 metres the trees do not interfere with the views they had when sitting on their verandah when they took possession of the land.
55. [55]
    The decision in Laing v Kokkinos makes it clear that the maintenance of sitting views is hard to justify and therefore the height of the trees should be maintained above 6 metres. Mr Williams said the range for adequate height and density is 6 – 7 metres. Ms Catelan’s gardener Mr Nelson estimated that the trees had been cut 1.5 – 2 metres on 10 June 2016 and that he considered they had been significantly reduced and looked like hedges^[28]. That would indicate that at the time the trees had been between around 7.5 to 8 metres high if the height at the end of the session had been 6 metres.
56. [56]
    Having regard to the cost of pruning the trees, which on the last session was $3,080.00 it is important to ensure that they will need to be pruned only when necessary. It was submitted for RPD Qld that if the trees were to be trimmed 6 monthly then Ms Wiseman and Mr Matthews should pay for the trimming. Having regard to the arborists advice I do not consider that 6 monthly trimming are appropriate as that will further encourage growth. Clearly there is constant growth and if the trees are only to be pruned annually unless the initial trim is at a reasonable level for much of the year the neighbour will be without a view. On that basis then I consider that the trees should be initially trimmed to 6.5 metres and maintained at that level on the basis of an annual trim.

57. [57]
    This should mean that Ms Wiseman and Mr Matthews will be able to maintain a sanding view between trimmings. It is clearly important that the trees are trimmed regularly but not over trimmed either in terms of height or frequency. This will also allow RPD Qld to maintain the amenity and privacy that the trees provide in that range between 6 and 7 metres.

57. [58]
    The order of the tribunal is that:-
    1. RPD Qld Pty Ltd ,the registered owner of the property at 123 Adelaide Street East, Clayfield, Queensland (the tree-keeper) arrange for the following work to be carried out both initially and on an annual basis:
    1. The 5 Harpulia pendula on the eastern boundary of the tree-keepers land be reduced in height to 6.5 metres from the ground level of each tree (the works).
    2. The works are to be carried out initially within 28 days of the date of this order and then annually thereafter on the anniversary of this order.
    3. The works are to be supervised by an appropriately qualified arborist in accordance with AS 4373-2007.