Campbell v RPD Qld Pty Ltd[2017] QCAT 82

REASONS FOR DECISION

Introduction

1. [1]
   Mrs Campbell (neighbour) is the owner of land at 115 Adelaide Street East Clayfield. Her land is next door to that owned by RPD QLD at 123 Adelaide Street, Clayfield. The land at 123 Adelaide Street East is occupied by Ms Michelle Catelan the director of RPD Qld. She alleges that trees growing on RPD QLDs (tree-keeper) land are interfering with her views and has 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 include that a neighbours land is affected by a tree^[1]. Land may be affected in various ways including as alleged in this case substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land by the obstruction of a view.

Does the land adjoin?

3. [3]
   For land to be affected by a tree it must adjoin the land on which the trees is situated or would adjoin the land on which the tree is situated if it were not separated by a road.^[2].
4. [4]
   RPD Qld’s counsel made submissions at the hearing that Mrs Campbell’s land did not adjoin that of RPD Qld because the land was separated by a private driveway which services 115, 117 and 119 Adelaide Street East and Mrs Campbell does not own the land on which the driveway is located although her property does have the benefit of an easement over it. The driveway is not a road for the purpose of the ND Act, because it is not dedicated to public use as road, and is not “open to the public or used by the public”. Bell v Griffiths [2013] QCAT 655 and Schubert v Lee (1946) 71 CLR 589 at 592.
5. [5]
   In circumstances where the applicant’s land does not adjoin the respondents land, the tribunal does not have jurisdiction to hear and determine the application.
6. [6]
   Mrs Campbell provided copies of the certificate of titles, survey pan and the easement document in respect of her property and submitted that on the basis of these the PRD Qld property adjoins her property.
7. [7]
   The applicant made final submissions on 14 October. In regard to s 42 question of the properties adjoining. Mrs Campbell submitted that there has not been sufficient evidence to determine the precise nature of the road. She submitted that the pavement is functionally a road under the act. There is no evidence that the road precludes use by any members of the public and that the case law should be rejected in particular Schubert’s case and said a broader conception of what road is is necessary. If the Tribunal determines that the road is a private driveway Mrs Campbell submits that existence of the easement necessarily gives rise to beneficial ownership on behalf of Mrs Campbell.
8. [8]
   I have perused the documents provided by Mrs Campbell and have determined that the certificate of title for Mrs Campbell’s land states Easement No 602082708 benefits the land. Over sub 3 of resub 2 of sub 21 of resub 1 of sub 17 of por. 80. The easement documents clearly shows that the easement runs between the boundaries of lot 20 (115) and lot 21 (123). The easement grants to the owners and occupiers of the land for the time being and their agents, servants tenants workmen and others authorised by them an easement or right of way to go return pass and repass at all times by night and day and for all lawful purposes.
9. [9]
   I agree with Mrs Campbell that the decision in Schubert v Lee is not relevant here as it defines a road for another piece of legislation. The decision in Bell v Griffiths concerns a situation similar to this where and application was made under the ND Act and the land of the applicant and respondent was separated by a strip of land owned by a third party. It is noted in that case that the word road is relevantly defined in the dictionary to the ND Act as “an area of land dedicated to public use as road.
10. [10]
    Mrs Campbell has said there is no evidence that the road precludes use by members of the pubic. The easement document clearly grants rights to particular classes of persons connected to the owner of the land which has the benefit of the easement that is Mrs Campbell and is not for general public use. I am satisfied that the land which separates Mrs Campbell’s land from that of RPD Qld’s is not a road as defined in the ND Act.
11. [11]
    Mrs Campbell has also argued that the existence of the driveway gives her beneficial ownership of the land. While she has the benefit of the easement it is merely gives her and those others listed in the easement document the right to pass and repass it does not give her any ownership over the land in question.
12. [12]
    In which case Mrs Campbell’s land cannot be affected by the land on which the tree is situated in accordance with s 46 of the ND Act as the land owned by Mrs Campbell does not adjoin the land on which the tree is situated.
13. [13]
    The part of the ND Act in respect to the tribunal’s jurisdiction in regard to trees^[3], making application to the tribunal^[4] and the tribunal making orders^[5] applies if a neighbours land is affected by a tree^[6]. As Mrs Campbell’s land is not affected by the tree situated on RPD Qld’s land for the purposes of the ND Act the tribunal has no jurisdiction and the application is dismissed.
14. [14]
    If it is later determined that the Tribunal does have jurisdiction to hear the application my decision in regard to the substantive application would be as follows.

Did the view exist when Mrs Campbell took possession of the land?

15. [15]
    Where it is alleged that the 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^[7].
16. [16]
    Mrs Campbell alleges that there has been severe obstruction of the views she had when she purchased her property in 1998 and has provided evidence from Mrs Sally Thompson and Mr Edward Haysom, Mrs Campbell’s husband, in support of her claim. Mrs Thompson^[8] states that when Penny purchased the property in 1998, the view from the verandah included the lights of the oil refinery and the sand blow on Moreton Island. Mr Haysom^[9] says we enjoyed the long distance views to the bay from the eastern verandah.
17. [17]
    Mrs Campbell states that she purchased the property in 1998. When she purchased the property there were clear views from the eastern verandah and master bedroom to Moreton Bay, the oil refinery and the airport^[10]. Mrs Campbell also provided evidence from a surveyor which indicated that in 1998 the single storey portion of the house that existed on the property at 123 Adelaide Street East would not have been an interruption to the view from her verandah^[11]. Mrs Campbell confirmed at the hearing that the master bedroom was in the bottom right hand corner of the house in 1998 and it is no longer the master bedroom and the current master bedroom is upstairs. Further that the eastern verandah has been enclosed with clear glass along the whole length.
18. [18]
    Mrs Campbell considers that her affidavit and other material evidences the views she had when she purchased the property with reference to Mahoney v Corrin^[12]. That decision concerned an application where a view which a neighbour had when they purchased a property was lost before the commencement of the ND Act. Wilson J as he then was determined that the tribunal had jurisdiction to hear and decide an application in relation to a view that existed prior to 11 November 2011, (the commencement date of the ND Act) but did not exit after the commencement date.
19. [19]
    It is noted that in this case that the alleged views are said to have existed in 1998 and that Mrs Campbell is asking for her long range views from her eastern verandah and original master bedroom^[13] .  It is submitted on behalf of RPD Qld that the views which Mrs Campbell is trying to regain are those from her new master bedroom which was an addition to her property in 2010.
20. [20]
    Wilson J stated in Mahoney v Corrin at [10] and

It is not the purpose or intent of the NDA to provide an applicant with greater or better views than those which existed at the time of purchase. The Tribunal may only make orders if a tree rises at least 2.5m above the ground and 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 (emphasis added).

21. [21]
    RPD Qld submitted that Mrs Campbell’s application seeks orders concerning the views from a master bedroom which was constructed in 2010, well after the she took possession of her property.
22. [22]
    In circumstances where a view did not exist from the master bedroom and hence the dwelling at the time the Applicant took possession of the property, the Tribunal’s jurisdiction under s 66 to make an order concerning that view is not enlivened, referring to the decision in Vecchio v Papavasiliou [2015] QCAT 70.
23. [23]
    Senior Member Stilgoe stated in Vecchio v Papavasiliou at [10]

There is no general right to a view in Queensland (Calvisi v Brisbane City Council (20090) 1PDQR 374 at 381). The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act (Qld) creates 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) create 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.

Therefore, when Mr Vecchio took possession of the land, because there was no house, there was no view capable of protection.

24. [24]
    Mrs Campbell in her application asked that the height of the trees be reduced to a reasonable level of 4 metres to allow us to regain our long range views out to Moreton Bay and the airport. She confirmed that she had attempted to resolve the dispute, as is required under the ND Act, by writing a letter to Ms Michelle Catelan. In that letter of 26 February 2015 Mrs Campbell states

We are writing regarding the Harpulia trees to your western side of the tennis court on your property at 213 Adelaide St East, Clayfield. These are compromising the amenity of our upper storey, which we constructed to allow us to take advantage of our long range views to the airport and Morton Bay.

25. [25]
    Mrs Campbell provided a drawing indicating the long range views affected by excessive tree height with her application. This showed an arc commencing at a separate section at the rear of her house which was directly in line with the Harpulia trees.
26. [26]
    Mrs Campbell submits in her statement of 3 March 2016^[14]

“I own a residence at 115 Adelaide Street East Clayfield and constructed a master bedroom in 2005 to take advantage of the magnificent long range views to Morton bay, the oil refinery and the airport. The views have no mostly disappeared because of the growth in height of a line of trees on the western boundary of the property of 123 Adelaide Street East”.

27. [27]
    A plan showing the long range views affected by excessive tree heights was also provided with the statement of 3 March 2016. This plan showed more detail of other properties and showed the same arc from the rear section of Mrs Campbell’s house. There are also drawings on page 3 and 4 of the submission of 3 March 2016 which indicate that the views in question are from the rear of 115 Adelaide Street across the rear of the property at 123 Adelaide Street East. There are photos on pages 5 and 6 of the statement of 3 March 2016 showing the views under threat and views obstructed.
28. [28]
    Mrs Campbell in her affidavit of 11 August 2016^[15] provides a plan which shows the view vista in 1998. This shows views from an arc which encompasses the whole of the eastern side her house. I note that there is no mention of the bedroom extension to Mrs Campbell’s house in this affidavit.
29. [29]
    The letter from Mr Haysom attached to the statement of 14 June 2016^[16] provides a history of the development of the property at 123 Adelaide Street East. That when they purchased 115 Adelaide Street East, which was originally a Queenslander like theirs was in the process of being removed and replaced with a new residence. That it was sold again and the new owner planted the front gardens and the Harpulia as a hedge along the easement. That owner trimmed the trees regularly so they were able to maintain their views but the after the current owner came in the hedge was allowed to grow unchecked.
30. [30]
    He states that “as the hedgerow grew higher and our views became more constrained, we examined the possibility of adding a second storey to allow us, at least in one part of the house, to view the bay. This extension was completed in 2010 and for a time we were able to enjoy the amenity of the views. Photos taken at the time of construction of construction clearly show the quality of the views to the bay. He attached a photograph titled “photograph of the view taken from the upstairs bedroom”.
31. [31]
    There is a timeline summary attached to Mrs Campbell’s affidavit which makes no mention of the addition of the master bedroom to her property but does state that in 2015 “the respondent renovates her property to take full advantage of the spectacular views to the north east that she denies her neighbours”.
32. [32]
    RPD Qld in its response to the application noted that the Harpulia trees along the western side of the property were trimmed to a height of around 6 metres on 10 June 2014. That the trees do not constitute a severe obstruction of a view, merely a partial view as the views are significantly impeded by other trees which are not on the property and by surrounding houses. That there are large trees on Mrs Campbell’s property which would interfere with her views. With these trees ranging from 8 – 13 metres. Mrs Campbell could have reduced the height of trees on her own property to regain the views. It is unrealistic for RPD Qld to be required to maintain the trees as the views are impeded by other trees which are not on the property, and by surrounding houses. Mrs Campbell has had her views since building an extension to her property. The diagram is out of proportion and does not show the large trees on Mrs Campbell’s property.
33. [33]
    Ms Catelan confirms in her affidavit of 6 July 2016^[17] that she recently caused an extension to her property to be constructed. It involved constructing a second storey on the eastern side of the house. A copy of a photograph of the extension is exhibit MC-4 to her affidavit.
34. [34]
    Ms Catelan refers to Mrs Campbell’s statement of 3 March 2016 and notes that the reference to the master bedroom: is a reference to a second storey master bedroom extension which the applicant and her husband constructed. She confirms that the construction took place in 2010 not as stated by Mrs Campbell in 2005, as Ms Catelan was in occupation of 123 Adelaide Street East when it occurred. She states that when the master bedroom was constructed in 2010 the trees were about the same height as they are now. This was following a height reduction trim by Energex, due to the trees being in proximity to power lines which occurred in June 2016. 
35. [35]
    Ms Catelan refers to the photographs contained in Mrs Campbell’s application and the further material dated 3 March 2016 and says as she understands that those are photographs taken from the second storey master bedroom which was constructed in 2010. Ms Catelan has provided a photograph of Mrs Campbell’s House MC-10A to her affidavit of 6 July 2016 which shows a large white extension to the rear of Mrs Campbell’s property with windows that face directly onto the Harpulia trees on Ms Catelan’s side of the easement.
36. [36]
    Ms Catelan notes that Mrs Campbell now appears to suggest that Trees obscure views from her eastern verandah.  She states that any views would be ground level views. There are high fences on either side of the access easement. The views to the east would be obstructed by the two storey house constructed on 123 Adelaide Street East after 1998, by the surrounding properties and by foliage within the area. To the extent that Mrs Campbell is referring to views from the veranda at ground level towards the north-eastern corner of her house, the trees (Harpulia) could not obstruct those views because they are not located in that viewshed. The views would be obstructed by the high concrete fence of the property, the trees and foliage on Mrs Campbell’s property and the surrounding properties and foliage in the general area.
37. [37]
    Ms Catelan has provided a photo which show her property, Mrs Campbell’s property and the easement entrance, MC-11 taken October 2013. She states that the photograph evidences that the trees are equal to the height of her roof and that there are also trees located on Mrs Campbell’s property which would add to the obstruction to the views which Mrs Campbell claims were present in 1998. She also notes that she removed a large tree from the front of her property when it was purchased in 2015 MC-12 and that this tree would have obscured Mrs Campbell’s views.
38. [38]
    Ms Catelan provides three further photos which illustrate the height of the trees on her property and on that of Mrs Campbell MC-13, MC-14 and MC-15 as at October 2013. A photo taken for RP Data in July 2002 is MC-16 she states it shows the obstruction caused by the trees on Mrs Campbell’s property.
39. [39]
    There are two photographs taken by drones which are said to be from the north western corner of Mrs Campbell’s property looking north east.at a height of 2.2 metres MC-17 and 4 metres MC-18.
40. [40]
    There is also a nearmap MC-19 with Mrs Campbell property marked which is said to show the vegetation surrounding Mrs Campbell’s property.
41. [41]
    Mrs Campbell states in her affidavit of 11 August 2016^[18] that the foliage on her property is retained at a level that does not impede my views to the north east and east. This is contrary to the inaccurate statement made by Ms Catelan. This was confirmed by Mrs Campbell at the hearing she also disagreed that the extensions to the property at 123 Adelaide Street East would impede her views.
42. [42]
    Mrs Campbell in her final submissions says that she has provided photographic evidence of the nature of the long range views to Moreton Bay, the oil refinery and the airport are on page 3 of this document and that these views were seen from the eastern verandah and the original master bedroom of her residence.
43. [43]
    The photo on page 3 is described by her as follows this image formed part of the respondents own affidavit 6.07.16. it is taken from the respondent’s property in a north easterly direction at a substantially lower level than my eastern veranda level. Approximately 3.2 metres lower, it clearly shows some of the views that the respondents trees obscure from my property.
44. [44]
    I confirm that the photo is partially cropped version of the photo which appeared as MC-17 to Ms Catelan’s affidavit.
45. [45]
    I accept that the photographic evidence provided by Mrs Campbell shows that her views from the master bedroom extension to her property are impeded by the Harpulia trees planted on the property at 123 Adelaide Street East. This is clear from the photos provided with the application and which are clearly identified by Mr Haysom in his letter annexed to the statement of 3 March 2016 as views from the master bedroom extension.
46. [46]
    All of the photographic evidence which is provided by Ms Catelan shows that any views which may have existed at the time Mrs Campbell purchased her property are obscured by trees on Mrs Campbell property or building which have been constructed on the property at 123 Adelaide Street East. It is telling that not one photo of the view from Mrs Campbell property was provided by her and she instead relied on a photo taken by Ms Catelan from a drone.
47. [47]
    I accept Mrs Campbell statement that the foliage on her property is retained at a level that does not impede my views to the north east and east but only in regard to the views which she would have from the master bedroom extension to her property built in 2010.
48. [48]
    I am satisfied that then that the view which Mrs Campbell is attempting to regain is a view from an extension to her property which was built in 2010 whereas she purchased her property in 1998.
49. [49]
    The ND ACT makes it clear it must be severe obstruction of a view that existed at the time when the neighbour took possession of the land. As this is not a view which existed when Mrs Campbell took possession of the land the Tribunal is not able to make any order in respect of the trees to prevent interference that is obstruction of a view as the requirements of s 66(3)(b)(ii) have not been met.

Are the trees likely to cause serious injury to a person or serious damage to land?

50. [50]
    Mrs Campbell also raised issues in regard to the safety of the trees as they are close to powerlines. Land may be affected by a tree if it has caused is causing or is likely to cause within the next 12 months to cause serious injury to a person on the land or serious damage to the land or property in the land^[19]. The Tribunal may make the orders it considers appropriate to remedy, restrain or prevent serious injury to any person or serious damage to the neighbours land or any property on the neighbours land^[20].
51. [51]
    When making order any the Tribunal is required to have regard to division 4 of chapter 3^[21]. In particular that the primary consideration is the safety of any person^[22]. The tribunal must also consider anything other than the tree that may contribute to the likelihood of injury or damage and any steps taken by the tree-keeper or neighbour to prevent injury or loss.
52. [52]
    It is clear from the material supplied by Mrs Campbell^[23] that her concerns in regard to the safety issues are raised on behalf of Mrs Pat Woolhouse the owner of the driveway over which Mrs Campbell has an easement. Mrs Woolhouse is not the applicant in this matter and the tribunal therefore has no jurisdiction where the neighbour making the application is not the neighbour whose land is affected by the tree^[24].
53. [53]
    For the above reasons if the land owned by Mrs Campbell was adjoining land for the purposes of s 46 of the ND Act the tribunal would still have dismissed the application.
54. [54]
    The Tribunal may make an order requiring a party to pay costs to another party where it is in the interests of justice^[25]. In this case while the application was ultimately dismissed for want of jurisdiction an application to have the application dismissed could have been made at a preliminary stage to avoid the need for further costs to be incurred. That did not occur and therefore there should be no award for costs in this matter.