Minahan v Kosky[2018] QCAT 351

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Applicant, Clare Leslie Minahan is registered proprietor of the land on which her family home is built. The house was there in 2005 when the property was purchased.
2. [2]
   Her neighbours to the east on a Gold Coast canal estate cul-de-sac are Leslie Kosky and Andrea Kosky and are registered proprietors of land on which their principal place of residence is located. They have owned the property since 1983.
3. [3]
   Both properties face the canal to the north-west, and each has a land area of 834m².
4. [4]
   The Koskys planted two Cook Pines (Araucaria columnaris) towards the canal frontage of their property more than 20 years ago. The juvenile trees were a gift from Mr Kosky’s parents, and Mr Kosky professes strong sentimental attachment to the trees.
5. [5]
   The trees have prospered and are a prominent feature of the Koskys’ property. Standing 19.5 m and 24.5 m tall, the trees are visible from the street as well as the canal side.
6. [6]
   The eastern tree, smaller and furthermost from the Minahan property, stands over or near a Council easement under which a stormwater pipe is located.
7. [7]
   The trees have become contentious between the neighbours because of:

   1. litter from the trees;
   2. shading that the Minahans say reduces the usability of certain rooms in winter due to cold and lack of light, and obstruction of sun to a planned roof-top solar system; and
   3. assertions by the Applicant that if one or both trees were to fall, personal injury or even death could result, and there might be damage to their property.
8. [8]
   Ms Minahan’s application is for removal of the two trees and other orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDA) about a large hedge along the boundary between the two properties.

Threshold issues

9. [9]
   The parties agreed it was uncontentious that the Cook Pines are trees for the purpose of the NDA, that the Koskys are treekeepers, and Ms Minahan a neighbour. The Tribunal was satisfied of these facts on the evidence. The trees obviously rise more than 2.5m above the ground.^[1]
10. [10]
    It was also uncontentious and shown on the evidence that the requirements of s 65 of the NDA about reasonable efforts and giving a copy of the application had been satisfied.
11. [11]
    A Senior Member of the Tribunal had issued directions requiring preparation of an independent expert shade analysis and report (“the assessor direction”). No directions were made appointing an arborist to provide an assessor’s report for ss 110 and 111 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).^[2] At the time of directions an arborist’s report had been filed by the Respondents and was before the Tribunal.
12. [12]
    No shade analysis report was prepared or provided to assist the Tribunal. Ms Minahan had sourced a suitably qualified expert who ultimately was not available to undertake the required analysis. There were in evidence emails indicating that the Koskys had asked a series of questions of the proposed expert, and that the expert subsequently declined to proceed with the proposed engagement.
13. [13]
    The parties informed the Tribunal they had been unable to find another suitably qualified expert. In the circumstances the Tribunal accepted that the parties had attempted to comply with the Senior Member’s directions and that the hearing should proceed on the evidence before it, including a shade analysis prepared by Mr Witty, an architect engaged by the Applicant.
14. [14]
    The Tribunal concluded there was sufficient evidence before it to make a determination despite the absence of an independent assessor report.
15. [15]
    To the extent necessary, the Tribunal waives compliance with the assessor direction.^[3]

Basis of Application

16. [16]
    Ms Minahan and her husband, Mr Shaun Minahan (who gave oral evidence at the hearing) were at pains to establish that they were motivated to bring the application because of:

    1. (a)
       severe obstruction of sunlight to the roof of their dwelling, interfering with the utility of a planned solar installation with a view to self-sufficiency of electricity needs;
    2. (b)
       substantial, ongoing and unreasonable interference with the use and enjoyment of their land caused by shade from the trees to the roof and windows, in particular the lack of winter warmth and light in certain rooms in the colder months of the year; and
    3. (c)
       concerns for their safety and potential damage to their property should one or both of the Cook Pines fall, especially in the event of a cyclone or severe weather event.
17. [17]
    The Applicant and Mr Minahan were careful to establish that despite past (and presumably ongoing) issues about litter from the trees, they were not arguing that the trees should be removed because of that particular interference.
18. [18]
    The matter of the hedge was not progressed at hearing.
19. [19]
    Accordingly, the Tribunal proceeded on the basis that the matters stated in paragraph [16] above were the matters in dispute.

Applicant’s evidence and submissions

20. [20]
    Evidence was given for the Applicant by Mr Minahan, Mr Michael Witty, Architect, and Mr Ray Cooper, Engineer and Director, Central Solar Systems. The Applicant also relied on the Respondents’ arborist’s report.
21. [21]
    Mr Minahan testified that the shade of the trees prevented sunlight from warming key rooms in the house, resulting in the family being unable to make use of those rooms in winter because they were too cold and dark. The rooms were the north and north-west facing living and dining rooms, winter coolness being exacerbated by the need to close doors to prevent drafts.
22. [22]
    Mr Witty had prepared a shade study for the Applicant using software he utilises generally in his architecture practice. Baseline data for the shade study was drawn from a nearby property with similar roof aspect but no shade problems. Shade cover data was drawn from Nearmap and Google Earth sources, and year-round shade effects generated by computer simulation.
23. [23]
    The salient finding from Mr Witty’s study is an estimate of the most severe shade impacts at 37% reduction in sunlight on the roof on or around the winter solstice. Shade other times of the year was also modelled and quantified.
24. [24]
    The detail of Mr Witty’s study was challenged by the Respondents in cross-examination, including: concerns that animations did not adequately match still images; the failure of the shade study diagrams to reflect sloping surface shade distortions; and the methodology employed generally.
25. [25]
    Mr Witty also gave evidence that the shade affected the Minahans’ enjoyment of the land by requiring active heating and cooling to compensate. Further he gave evidence that if one or both trees were to fall onto the house there would be significant damage because of their height.
26. [26]
    Under cross-examination Mr Witty admitted he had not visited the Respondents’ property nor commissioned an independent survey of the boundaries, relying on search results and secondary sources. His evidence was this accorded with his clients’ instructions, seemingly to contain costs. He was also questioned by Mr Kosky about the trees’ location over a stormwater drain and other arboreal matters, and the representation of the Minahans’ house on the drawings including the depiction of walls and rooms.
27. [27]
    Mr Cooper is an engineer who has been working in renewable and solar energy since 1977. In his opinion the shading from the trees was such that a rooftop solar system would not be workable. His evidence was that whether an operating system was self-sufficient depended on the tariff. He also gave evidence about the merits of various types of systems and the use of optimisers. His evidence canvassed the merits of various solar technologies, noting that systems capable of operating when part shaded were considerably less efficient.
28. [28]
    He estimated the reduction in solar generating capacity because of the shading, based on Mr Witty’s study, at 7,231 watts, approximating daily hot water needs. He concluded “it will not be possible for you to have your hot water service powered by your solar system.”^[4]
29. [29]
    In the same document Mr Cooper opined:

In my opinion this shading is severe and unjustly penalising you. My analysis shows that without the shading you would generate approximately 47% more electricity per day and most [definitely] be able to fulfil your goals to be predominantly self-sufficient. Unfortunately for you, due to the shadows cast from the 2 cook pines you cannot fulfil your goal.”

30. [30]
    Ms Minahan submitted that Mr Witty’s analysis showed the extent of the shade and that it was severe. She asserted she has a right and privilege to use solar power all year around, especially in the mornings, and that the trees interfered with that right and privilege. Further she submitted she and her family did not feel safe because of the trees and was not satisfied Mr Reid had undertaken an adequate risk assessment, merely a visual examination: there was no way of knowing if the root system was compromised.
31. [31]
    She lastly submitted that at almost 40% shade in winter the shadows were “severe” and the expert evidence was that the effect was a 47% reduction in solar production as a result. She compared the quality of the evidence from Mr Witty and Mr Cooper to the “guesswork” offered by the respondents.

Respondents’ evidence and submissions

32. [32]
    The Kosky’s led evidence from Mr Craig Reid, Arborist, and Mr Matthew Beech, a solar systems company manager.
33. [33]
    Mr Reid’s oral evidence was that trees of the type here withstood adverse weather conditions well unless there were major defects. He confirmed his opinion that these specimens were in good condition. He noted that one tree was smaller. In his view the location of the tree in relation to the storm water easement did not affect its stability.
34. [34]
    His evidence was that the majority of winds in normal condition blow from the south-west. He had never known Cook Pines to blow over in high winds, and they are a preferred species for the Gold Coast City Council, an iconic tree associated with coastal areas. In his view the trees did not expose neighbouring properties to risk.
35. [35]
    On the amount of shadow cast, Mr Reid’s opinion in oral evidence was that the amount of shade was variable and because of the trees’ conical shape, the trees did not cast “a massive amount of shade”.
36. [36]
    Under cross-examination he testified that the trees were “pretty good specimens … almost at full height”; their location over the storm water drain, while not optimal or recommended, would not affect their stability; and the species was long lived, with potential life in excess of 100 years. In his view, lopping of such trees was not a usual practice.
37. [37]
    Mr Beech had not undertaken a formal analysis of the Minahans’ needs and aspirations for their proposed solar system. While he had extensive experience in the solar energy sector, his relationship with the respondents was more in the nature of friendship than expert advisor.
38. [38]
    His opinion was that any installation should start with anticipated energy needs and work backwards from the largest possible system. Technological changes meant panels could now operate in partial shade now using string inverters operating in series rather than parallel and therefore each panel capable of independent power generation.
39. [39]
    Mr Kosky gave some supplementary evidence to the effect that the trees were a gift from his parents many years ago, planted in their present places at about 2m height. He attached considerable sentimental value to the trees. In his view the value of the trees, including amenity and birdlife ecology, outweighed the inconvenience to his neighbours.
40. [40]
    The trees were well established when the Applicant acquired the neighbouring property in 2005 and their effect on the property was evident then. The initial complaints to him about the trees were about litter in January 2014, when he was asked to remove the trees. He declined to do so at the time.
41. [41]
    Mr Kosky submitted that Mr Witty’s evidence relied too heavily on assumptions to be persuasive, given the absence of critical measurements such as contours, and apparent errors on the documents in evidence including the block size being wrong, errors in the depiction of tree positions and walls, and the failure of the shadow depictions to show roof shape distortions. Mr Kosky suggested a full-year shade effect figure of 17%, contrasted to the winter solstice figure of 37%.
42. [42]
    On the effect of the trees on temperature and light he noted the Minahans’ clerestory faced south and itself cast a shadow on the roof. He submitted in closing that other trees, not on his property, also cast shadows on the Minahan’s roof, although there was no particular evidence adduced. In his submission the winter temperature and light issues were not solely the result of the trees.
43. [43]
    Mr Kosky in closing said of the trees:

We will have them inspected by an arborist on an annual basis and comply with any recommendations the arborist may have in the future.

What does the evidence establish?

44. [44]
    It is for the Applicant to show, to the requisite standard of proof, that the trees in question affect her land in the ways stated in s 66 of the NDA. In Robertson v Darvas,^[5] Senior Member Brown referred to three “gateways” an applicant (neighbour) must pass through to enliven jurisdiction:

[34] The first gateway a neighbour must pass through is establishing that the neighbour’s land is affected by the tree.  The second gateway requires the neighbour to satisfy the Tribunal of the matters set out at s 65 of the NDA. The third gateway requires the neighbour to establish that the orders sought in relation to the tree fall within the relief set out at s 66 of the NDA.

45. [45]
    The “gateways” through which the Applicant must pass for the two Cook Pines may be stated as follows.

    4. (d)
       Do the trees affect Ms Minahan’s land?^[6]
    5. (e)
       Is any order appropriate:

       1. to prevent serious injury to any person;^[7]
       2. to remedy, restrain or prevent:
          1. serious damage to the neighbour’s land or any property on the neighbour’s land;^[8] or
          2. substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Minahan’s land;^[9] but “only if … the obstruction is severe obstruction of sunlight to a window or roof of a dwelling” on Ms Minahan’s land?^[10]
46. [46]
    While the safety of any person is the primary statutory consideration,^[11] removal and destruction of living trees is to be avoided:

A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[12]

47. [47]
    The Tribunal must take into account the range of matters listed in NDA s 73, and because the Applicant has alleged that the Cook Pines are likely to cause serious injury to a person or even death, and serious injury to the Minahan property and substantial interference the Tribunal may consider the matters listed in ss 74 and 75.
48. [48]
    The s 73 matters are:

1. (a)
   the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;

2. (b)
   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;

3. (c)
   whether the tree has any historical, cultural, social or scientific value;

4. (d)
   any contribution the tree makes to the local ecosystem and to biodiversity;

5. (e)
   any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

6. (f)
   any contribution the tree makes to public amenity;

7. (g)
   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;

8. (h)
   any impact the tree has on soil stability, the water table or other natural features of the land or locality;

1. (i)
   any risks associated with the tree in the event of a cyclone or other extreme weather event;

10. (j)
    the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;

11. (k)
    the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.

49. [49]
    In terms of the s 73 matters, the evidence points only to amenity for the Kosky’s garden, possibly some ecosystem benefits. The trees are, on Mr Reid’s evidence, common, not pests or weeds, and have little impact or contribution of the types enumerated above. Further the evidence is that the risks associated with the trees in extreme weather or cyclone are low. Pruning or reducing the height of the trees was also not indicated on Mr Reid’s evidence.

Do the trees affect the neighbour’s land?

50. [50]
    There was ample evidence that the trees drop litter including onto Ms Minahan’s land. Further the evidence clearly shows shade from the trees falls across the roof of her house, and on the oral evidence of Mr Minahan results in the house being cold and dark in some rooms in the winter (although this evidence was not otherwise substantiated). Both the architect and engineer provided evidence that shade from the trees would reduce the amount of sunlight available to produce electricity through a solar system.
51. [51]
    The Tribunal is satisfied that the two Cook Pines affect Ms Minahan’s land.
52. [52]
    The question remains: is an order in relation to one or both trees appropriate? The answer depends on the type and degree of effect.

Injury; damage

53. [53]
    The primary consideration stated in NDA s 71 is the safety of any person. Mr Reid’s report and oral evidence is the only substantial, expert and objective evidence before the Tribunal about safety. It was that the trees are in good health and unlikely to fail, even in the event of a cyclone or severe weather event. Mr Reid’s evidence was that Cook Pines are a robust species, common on the Gold Coast. Given the health and structure of the two specimens on the Kosky’s land, harm coming to any person from the trees was, in that evidence, unlikely. That was because the root structure would result in a slow fall, should one happen.
54. [54]
    Mr Reid’s opinion was that if the trees fell in high wind they would fall into the canal because that was the direction of the prevailing winds. The Tribunal was not convinced of that opinion, given that wind direction and speed in severe weather or cyclonic conditions were neither studied in the arborist’s report nor tested in the evidence. Wind speed and direction in such conditions are notoriously variable. Accordingly the Tribunal did not consider the opinion conclusive.
55. [55]
    Mr Reid’s uncontested evidence was that Cook Pines are not especially susceptible to falling in high winds, that these specimens were well established and in good health and condition. If such a tree was to fall, it was likely to fall slowly because of its root structure and therefore did not present a danger or risk of serious injury to any person. The placement of one tree over the storm water easement did not affect the tree adversely in his opinion.
56. [56]
    The evidence before the Tribunal about the risk of the trees falling was limited to Mr Reid’s report and oral evidence, and the lay opinion of non-experts. On the evidence, the Tribunal could not conclude that the two Cook Pines present a real risk of serious injury to any person. The same conclusion applies, for the same reasons, to the risk of serious damage to the neighbour’s land or any property on the neighbour’s land.

Substantial, ongoing and unreasonable interference with the use etc

57. [57]
    The Applicant asserted, and Mr Minahan gave evidence, that the shade cast by the trees in winter causes substantial, ongoing and unreasonable interference with the use and enjoyment of the land. The effect of the trees was said to be that certain rooms were rendered too cold and too dark to be enjoyed in the winter months.
58. [58]
    The rooms affected are the north and north-west facing living and dining rooms. The coolness is said to be exacerbated by the need to close doors to prevent drafts.
59. [59]
    There was no other evidence about the effect of the trees on the rooms such as photographs and light and temperature measurements across days and seasons.
60. [60]
    Mr Kosky’s observations about the aspect of the clerestory and the possibility of shade from other trees suggested additional reasons some rooms might lack warmth and light in the colder months, but were likewise unsupported by objective evidence.
61. [61]
    Regardless of Mr Kosky’s observations, there was insufficient evidence before the Tribunal for the Applicant to establish that an order should be made to prevent substantial, ongoing and unreasonable interference with the use and enjoyment of her land on that basis.

Severe obstruction of sunlight

62. [62]
    Obstruction of sunlight is a special class of substantial, ongoing and unreasonable interference with the use and enjoyment of land. To make an order, the Tribunal must consider the trees cause severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.^[13]
63. [63]
    The evidence is that the trees cast shadows that obstruct sunlight at least on the Minahan’s roof.
64. [64]
    Given that the parties, for whatever reason, were unable to comply with the assessor direction, the only expert evidence before the Tribunal about shade from the trees was Mr Witty’s shade analysis, establishing that the trees do cast shadow on the Minahan property, and that the shade cover is up to 37%. Combined with Mr Cooper’s evidence that the impact on solar generation is up to 47% reduction in capacity, and Mr Minahan’s assertion the shade causes certain rooms to be cold and dark at times, it is clear the trees cause obstruction of sunlight.
65. [65]
    But is that obstruction “unreasonable” and “severe”?
66. [66]
    Mr Cooper says it is both severe and unjustly penalising the Applicant,^[14] but as noted in similar circumstances in Robertson v Darvas:

The best, and most objective, evidence available to the Tribunal in relation to the issue of the obstruction of sunlight is that of [the Tribunal appointed arborist-assessor].  Whilst it is not the assessor’s role to determine the issues in dispute but rather to make observations and offer opinions about the facts within his area of expertise, those observations and opinions are important. Ultimately, however, it is for the Tribunal to make findings about the facts and to apply the law to the facts.^[15]

67. [67]
    Body Corporate for Beaches Surfers Paradise v Backshall was a body corporate dispute about keeping a dog and whether it constituted unreasonable interference with others’ use and enjoyment of a lot. Carmody J said that reasonableness involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue and requires that all relevant matters are taken into consideration.^[16]
68. [68]
    In Laing v Kokkinos, a view obstruction case, Wilson J said (footnotes omitted):^[17]

The term ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’. During Parliamentary Debates, the then Attorney-General commented: ‘The severity threshold requires that the view must be nearly blocked out.’ Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable.

69. [69]
    More recently, in Miles v Gough,^[18] another view obstruction case, the Queensland Court of Appeal refused an appeal where the original decision maker had characterised loss of view as minor and therefore not severe for the purposes of NDA s 66(3)(b)(ii)). In so doing the Chief Justice^[19] noted the adoption in Laing of observations in a New South Wales view case, Tenacity, of a qualitative spectrum of loss of view from negligible, minor, moderate, severe to devastating.^[20]
70. [70]
    Miles v Gough concerned loss of view which inherently requires both qualitative and quantitative assessment. Shade interference is amenable to objective assessment and more able to be measured and assessed quantitatively. However, the Court of Appeal’s guidance for s 66(3)(b)(ii) is also relevant to the calculus of severity for the purpose of s 66(3)(b)(i) because the test remains one of severity.
71. [71]
    There was some calculation of the impact on solar electricity generation undertaken by Mr Cooper, based on Mr Witty’s shade analysis. The evidence was that at the winter solstice shade cover was as much as 37%; electricity generation reduced by as much as 47%. Interference lessens as the sun’s angle rises towards its peak at the summer solstice. Averaged over a full year, the interference will be less than the figures stated for the winter solstice.
72. [72]
    There was no objective analysis of the effect of the shading on the temperature and light inside the house.
73. [73]
    In Robertson v Darvas, the Tribunal found that the shade obstruction being about 4 hours of the day, and said to make part of a dwelling dark and cold and to impede vegetable production, was not severe. Even if it was, Senior Member Brown held it did not constitute a significant, ongoing and unreasonable interference with the use and enjoyment, in part based on the Applicant’s use of the spaces concerned. The application was dismissed.^[21]
74. [74]
    I note the Minahans aspire to solar self-sufficiency and in part framed their understanding of severity of interference in those terms. However admirable the goal, the statutory test is objective and not about aspirations or individuals’ need. Self-sufficiency, on their own expert evidence, depends on extrinsic factors such as the tariff. Other factors including the design of the system are speculative.
75. [75]
    Even taken at its highest, the evidence does not establish that shade interference is severe. Rather, the interference is significantly less than severe.^[22]
76. [76]
    The Tribunal can only make a tree order if the criterion in s 66(3)(b)(i) is established. In my view, it is not. On that basis the Application must be dismissed.
77. [77]
    Even if the shade was severe, on the evidence presented, the Tribunal cannot find the interference constitutes significant, ongoing and unreasonable interference with the use and enjoyment. There was no evidence beyond Mr Minahan’s assertion proving that rooms were cold and dark at times of the year; there was no evidence (other than the names given to the rooms) about the extent of use of those spaces allowing the Tribunal to be convinced on the balance of probabilities that the interference is substantial, ongoing and unreasonable. The solar system is aspirational, although such a system undoubtedly is an instance of use and enjoyment.
78. [78]
    Although safety issues were not demonstrated on the evidence, the Tribunal notes Mr Kosky’s clear undertaking for annual inspection and any necessary action, quoted above at [43], and considers that statement an important accommodation of Ms Minahan’s concerns.

Conclusion

79. [79]
    A tree order can only be made in this instance if the Tribunal has before it evidence that the interference is severe. That is not the case here. Accordingly, no order can be made.
80. [80]
    Even if the shade was severe, on the evidence before the Tribunal, it does not constitute substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land.
81. [81]
    The application must be dismissed.