Collyer v Daniells[2024] QCAT 229

REASONS FOR DECISION

1. [1]
   The applicant and respondent are neighbours sharing a dividing fence between the two properties. The applicant lodged an application in this Tribunal on 17 November 2021 claiming that:

   1. The subject trees on the respondent’s property, being gold cane palms, have caused substantial, ongoing and unreasonable interference with the applicant’s use and enjoyment of their land due to the trees severely obstructing a view that existed when they purchased the house in 1997.
   2. The applicant attempted to resolve the dispute by having discussions with the respondent and respondent’s daughter in or around July 2020 and sending a letter on 30 July 2020. The applicant’s wife also had a discussion with the respondent’s daughter about the issue on 6 June 2021.
2. [2]
   The applicant sought the following orders:

   1. To remove or prune branches.
   2. That there be yearly maintenance to maintain the trees at a maximum height of 5 metres.
   3. That any branches or roots that are pushing the fence over be removed. 
3. [3]
   The respondent lodged a response with the Tribunal on 4 February 2022 stating:

   1. They deny that the trees have any effect on the applicant’s use or enjoyment of their land as the subject trees are not causing a severe obstruction to sunlight or views. 
   2. The original dwelling from when the house was purchased in 1997 was demolished by the applicant in September 2017 and replaced with a dwelling that is a substantially different in structure, height and position which reduced the views. The new dwelling is closer to the respondent’s back fence, and lower in profile.
   3. The applicant’s view has changed over 25 years, mostly due to their own actions in replacing their dwelling.
   4. The trees on the respondent’s property have been in existence for more than 15 years and would have been at their current height when the applicant rebuilt their current dwelling in 2017/2018.
   5. The applicant is requesting the respondent prune 40-50 palms which is unreasonable and unnecessary and would greatly affect the respondent’s enjoyment of their land and impact on their privacy. 
   6. The respondent does maintain the palms to ensure that they are sufficiently clear of the fence line and takes responsibility for any fronds that may fall.
   7. The applicant has trees in his backyard, some of which are as high as the subject trees.
   8. The respondent agrees contact has been made to try and resolve the dispute by both parties prior to the QCAT proceedings commencing. 
4. [4]
   The respondent sought the Tribunal dismiss the application and make no orders. 

Statutory framework

5. [5]
   The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute did arise, then the legislation facilitates for the resolution of that dispute.^[1]
6. [6]
   The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.^[2] The trees involved in this application are undeniably trees as provided for in the Act and this is confirmed in the Tree Assessment Report.^[3] 
7. [7]
   The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.^[4] The affected land must adjoin the land on which the tree is situated^[5] or would adjoin the land if it were not separated by a road.^[6] As the applicant and respondent are neighbours who reside next to each other on adjourning land, by way of the back fence, I am satisfied that these properties meet the definition of “land” as required under the legislation. 
8. [8]
   Land is affected by a tree if branches from the tree overhang the land;^[7] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,^[8] serious damage to the land or property on the land,^[9] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[10]
9. [9]
   The Act provides for who is a tree-keeper.^[11] That is, if the land on which the trees are situated is a lot recorded in the freehold land register, the registered owner.^[12] For the purposes of this application, the tree is situated on the land belonging to the respondent, and therefore the respondent is the tree-keeper for all the trees subject to the application. 
10. [10]
    The application named two respondents and the proceedings had been conducted up until present with two respondents, being the respondent Margaret Daniells and her daughter Janelle Daniells who it is understood also resides at the property and has taken the primary role in responding to the application, given her mother Margaret Daniells is advanced in age, being over 80 years old. As only Margaret Daniells is the registered owner of the property, she is the only tree-keeper in law and as such is the only correct respondent.    
11. [11]
    The Act makes provision for the responsibilities of a tree-keeper, including ensuring that the tree does not cause serious injury to a person; or serious damage to a person’s land or any property; or cause substantial and ongoing and unreasonable interference with the use and enjoyment of that land.^[13] The primary consideration for the Tribunal in deciding an application is safety.^[14]
12. [12]
    The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,^[15] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,^[16] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[17] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[18]
13. [13]
    For interference that is an obstruction of sunlight or view the tree must rise at least 2.5 metres above the ground^[19] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land, or a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.^[20] I am satisfied the subject trees in this matter are at least 2.5 metres from the ground.

14. [14]
    Without limiting the powers of the Tribunal to make orders under s 66(2) of the Act, the Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order under s 66.^[21] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.^[22]

Tree Assessor’s Report

15. [15]
    On 3 November 2022, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.
16. [16]
    On 15 November 2022 Mr David Gunter, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 1 February 2023. Relevantly, the report states:

    1. The subject trees are wholly located within the respondent’s property. They are a mature informal hedge consisting entirely of Dypsis lutescens (Golden Cane) Palms. The species is non-native but widely planted in Queensland as an ornamental landscape plant. 
    2. The trees are in good condition in terms of vitality and overall structure. They provide significant privacy and landscape amenity to the respondent.
    3. The subject trees obscure a pre-existing “view” to the South from the applicant’s second floor deck/balcony area. The view extends over dense housing. 
    4. Trees on the applicant’s property also partially obscure views of the subject trees.
    5. It is possible to selectively thin the trees in order to reduce the height of the hedge while retaining all of the trees. This work does not necessarily require a qualified arborist. A qualified horticulturist/gardener could thin the hedge to remove the taller culms/stems while retaining the lower/smaller stems, effectively reducing the overall height of the hedge to accommodate the view while retaining the respondent’s privacy. The exact height would need to be agreed between the two parties after accurate sightlines have been established.
    6. The Tribunal must decide whether there is an entitlement to a “view” in this instance.
17. [17]
    On 13 September 2023 the Tribunal directed the matter would be determined on the papers without an oral hearing. This is that decision. 

Findings of the Tribunal

18. [18]
    I am satisfied of the interpretation and jurisdictional issues in sections 45 to 49 and s 61 of the Act and find that these are trees within the definition under sections 4 and 5 of the Act, the applicant and respondent are the registered owners and appropriate parties, and the tree is on the respondent’s property making the respondent the treekeeper.
19. [19]
    The respondent’s daughter Janelle Daniells had been named in the application and the proceedings as a respondent. As she is not a registered owner of the property, she has been removed as a respondent, as she is not a tree keeper and cannot be bound by any decision of the Tribunal. However, in the circumstances the Tribunal takes no issue with her assisting the respondent with the response material.
20. [20]
    As it is alleged (albeit disputed by the respondent) that the land is affected by the trees due to the trees causing a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, there is jurisdiction for the Tribunal to hear this matter.^[23] 
21. [21]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied the applicant has made a reasonable effort to reach agreement with the respondent and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues. The applicant has also given copies of the application to the respondent as required under s 63 of the Act.
22. [22]
    To the extent that is relevant to the concerns in this matter, I have considered the matters in ss 71 to 75 of the QCAT Act.
23. [23]
    In terms of whether the applicant’s land is affected by the tree as required under section 61 of the Act, it is noted that the application does not allege that the trees overhang the applicant’s properties and none of the trees are alleged to have caused, is causing, or is likely within the next 12 months to cause— 

    1. serious injury to a person on the land; or
    2. serious damage to the land or any property on the land of the applicants. 
24. [24]
    As such, the sole issue to determine is that the trees are a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land pursuant to section 46(a)(C) of the Act. 
25. [25]
    The applicant alleges that the trees are causing substantial, ongoing unreasonable interference with their use and enjoyment of their land due to the subject trees severely obstructing their view which existed when they took possession of their land. This is disputed by the respondent.
26. [26]
    What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,^[24] Judicial Member Dodd said: 

3. [23]
   Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance. 

3. [24]
   [It] require[s] a decision maker to assess the degree of damage or interference in the light of all the evidence provided. 

Unreasonable interference – Views

27. [27]
    It is well established that in Australia, there is no general right to a view.^[25] 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.^[26]
28. [28]
    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 in relation to obstruction of a view. 

    1. Firstly, the Tribunal must consider what view existed when the applicant took possession of the property.
    2. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. 
    3. It they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, sections 72, 73 and 75.^[27]
29. [29]
    In relation to the second step of determining whether trees on the adjourning property are causing a severe obstruction of a view, Wilson J, in Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCAT 247 (‘Laing’), adopted three steps of a four-step process identified by the New South Wales Land and Environment Court in Tenacity Consulting v Warringah^[28] (‘Tenacity Consulting’): 

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.

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

The third step assesses the impact of the 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. As Roseth SC said: 

The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.^[29]

30. [30]
    In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 the three-step process mentioned in Laing was confirmed and the Appeal Tribunal went on to say, relevant to the first step: 

The process identified in Laing cannot be undertaken unless what is being compared is the view that existed from a dwelling at the time the neighbour took possession of the land and the same view from the same dwelling, at the time of the hearing. In assessing the value of a view, the reasonableness of protecting a view and the impact of the interference with a view, the same view must be capable of assessment at differing points in time.

It is uncontroversial for the purposes of applying and interpreting the [Act] generally, that home renovations which include, for example, the construction of decks, additional rooms and additional levels are commonplace. A view that exists from an after-possession addition such as a deck, a living area or a kitchen may be entirely different however to the view that existed from the original dwelling. In these circumstances s 66(3)(b)(ii) requires a consideration of the view as it existed from the original dwelling shorn of any after possession additions and alterations, and an assessment of that same view from the dwelling presently. 

31. [31]
    The process requires consideration of the meaning of the term ‘severe obstruction’. In Haindl v Daisch,^[30] cited by Wilson J in Laing, the New South Wales Land and Environment Court held the assessment of severity involves both quantitative and qualitative elements, offering the following examples: 

To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more 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 degree 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.^[31]

Was there a view that existed when that the applicant took possession of their land?

32. [32]
    The applicant provided two photographs of the view as taken in 1997, being the year that the house was purchased. These are contained in the application at pages 3 and 4 of attachment 1.

33. [33]
    The views are not of the city or ocean view. They are not icon views, or ones which would ordinarily attract any monetary value for the property. They are views of other houses and trees. 
34. [34]
    The applicant, however, states that the views are important to him, and he and his wife enjoyed gazing into the distance and watching the weather and lights at night. 
35. [35]
    The applicant’s view was partially obscured by the neighbouring house and other trees, at the time of purchase in 1997.

The locations from which the views were seen. 

36. [36]
    The views are seen from the back upstairs balcony/landing. There is no evidence of views from any other location.

What is the extent of the views lost by the trees? 

37. [37]
    Whether there was a view and the location/s from which any view was seen at the time the property was purchased in 1997 does not appear to be disputed by the respondent. The key issue in dispute is to what extent is the original views are lost, and what is the cause of that. 
38. [38]
    One of the main issues is that in addition to the passage of time and the possibility of change/growth in the urban environment in the past 25 years which may have affected the view, the dwelling that existed at the time the applicant purchased the property no longer exists, as it was demolished, and the applicant rebuilt a new dwelling on the site.
39. [39]
    The demolishing of the original dwelling does not invalidate the applicant’s claim, as home renovations and additions/extensions are commonplace. However, as views can change with renovations, what needs to be compared is the impact on the view, from the location within the new house, where the old balcony/landing would have existed in 1997.  
40. [40]
    The respondent asserts that the change in the applicant’s design and placement of their house and the new back deck which is larger and closer to the dividing fence means that the previous view no longer exists.  
41. [41]
    While no plans were provided, the applicant asserts that while the original house was demolished and a new house constructed, the footprint of the old and new house position overlaps significantly, and that as the new deck is higher, it would provide a better view, if not for the respondent’s trees.
42. [42]
    The applicant has provided evidence that the front alignment and set back from the street between the old and new house was unchanged. However, the current house is 0.996 metres wider, 2 metres longer and has a 4m deep open timber deck, with the deck floor being 0.59 meters higher than the height of the old landing/balcony. In support of this the applicant provided the following two attachments with photo contrasts of the two houses.

36. Attachment 1 (same setback from the street and same front alignment with neighbouring homes).

36. Attachment 2 Landing Bottom of 240mm floor joists of deck.

43. [43]
    While the pictures provide a helpful comparison of the old and new houses and clearly demonstrate the new house is large and takes up more of the property and as such the deck is closer to the dividing fence, unfortunately the pictures do not show the comparison between the balcony/landing at the time of purchase and the new larger deck on the current dwelling.
44. [44]
    There are also no clear comparable pictures of the view at present to match the two photos provided from 1997. The applicant had provided the below picture taken in September 2023 which demonstrates the obstruction the palm trees pose to the house, but from what can be seen as to the shape of the neighbouring roof behind the trees, it appears it may have been taken from a different angle than the 1997 photos.

36.     Applicant’s photo – September 2023

45. [45]
    The tree assessor has provided a photograph taken in November 2022, showing the subject trees from the applicant’s property in the red outline and the applicant’s trees in the green outline. The difficulty with this photograph is that it also appears to be from a different angle, in that it would seem to have been taken from ground level as opposed from the first-floor balcony view. 

36. Fig 2: Shows the subject trees from the applicant’s property.

46. [46]
    It is noted that there is no evidence of any concerns about the view being raised by the applicant prior to the house being demolished in 2017, despite the respondent’s advising the trees have been in existence for over 15 years. It appears concerns were raised only after the new house was built with the larger back deck.
47. [47]
    In terms of whether the respondent’s trees are causing a severe obstruction, the Tribunal has noted that ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. 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.
48. [48]
    While undoubtedly there are large gold cane trees on the respondent’s property, impacting the sightlines and view from the applicant’s current deck, the difficulty for the applicant is that what needs to be shown is what the view is from the location of the old balcony/landing not the new deck.
49. [49]
    Noting the applicant’s own evidence that the current house is 2 metres longer, without any evidence of the plans of each house or where the previous balcony/landing was in comparison to the current house, it is not possible to know if it is the trees which are affecting the view or whether the view has been impacted by the walls in the new house. 
50. [50]
    The other issue which is evidenced in the photos taken by the tree assessor is that the applicant’s own trees are as large as the subject trees and may also be obstructing the applicant’s view. 

Substantial, ongoing and unreasonable interference

51. [51]
    It is not sufficient just to demonstrate the trees are obstructing the applicant’s view as even if it did interfere with a view, as Justice Alan Wilson, the then President of this Tribunal, observed in 2013 in Laing,^[32] s 66 of the does not create a right to a view, the remedy referred to is a statutory one which is discretionary and will not be exercised if it is not appropriate in the circumstances.

52. [52]
    A neighbour seeking to establish interference caused by severe obstruction of a view for the purposes of s 66(2)(b)(ii) of the Act must successfully pass through two gateways. First, the neighbour must establish a severe obstruction of a view in accordance with the principles in Tenacity Consulting and Laing. If an obstruction of a view can be proved of such severity that it is an interference with the use and enjoyment of the neighbour’s land, the neighbour must then pass through the second gateway by establishing that the interference is a substantial, ongoing and unreasonable one.^[33]
53. [53]
    In the context of nuisance and unreasonable interference, it was observed in Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford,^[34] referencing Marsh v Baxter: 

In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference, the social or public interest value in the defendant's activity, the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered.^[35]

54. [54]
    Whether interference caused by a tree is substantial, ongoing and unreasonable will, depending upon the facts of the particular case, require an objective consideration of some or all of these, and other relevant, factors.
55. [55]
    The Tribunal is required to consider the matters in sections 72, 73, and 75 of the Act in deciding what orders are appropriate. The decision involves a balancing of the interests in maintaining a tree at its current height, width or shape against fairness to neighbours whose views have been severely obstructed.^[36] The Tribunal is only empowered to make orders in relation to trees causing an obstruction of a neighbour’s view in the most severe of cases.
56. [56]
    Section 72 is not relevant in this matter as there is no suggestion the trees should be removed or destroyed. In considering the specifics of the subject trees and the general matters in section 73 and section 75(e), there is no specific risk posed by the trees or evidence that they provide any specific contribution to the local ecosystem, protection or revegetation of a waterway or foreshore or soil stability or have some cultural or historical significance. The trees do however provide significant privacy and landscape amenity to the respondent. 
57. [57]
    While the respondent has raised concerns about the health and sustainability of the trees if pruned/cut to allow a view, this does not appear to be supported by the evidence. The trees have been reduced in height previously and it is not suggested doing so affected the trees. The Tree Assessor’s report states the bamboo and trees are in “good condition in terms of vitality and overall structure”. The report further notes that it is possible to selectively thin the trees in order to reduce the height of the hedge while retaining all of the trees and the respondent’s privacy. The work does not require a qualified arborist but could be done by a horticulturalist or a gardener.

58. [58]
    In this matter the applicant does not claim that there were overhanging branches and/or damage or harm or risk of such from the trees. While the applicant during proceedings raised some issues with leaf litter and the trees being close to the fence, there is not sufficient evidence to support any finding that there are any overhanging branches or unreasonable leaf litter from the tree which is unreasonably impacting on the applicant’s use of his property. Accordingly, the issue to be determined is whether the obstruction of the view is sufficient to establish a substantial ongoing and unreasonable interference. 
59. [59]
    In considering the issues, not only does consideration need to be given to whether anything other than the tree has contributed to the interference, such as the change in the house construction or the applicant’s only trees, but also to the nature of the view, to consider if this interference is substantial and unreasonable.
60. [60]
    The Tree Assessor’s report provides a map of the directions for the views from the applicant’s deck, which extends over dense housing and green spaces heavily populated with trees.

58. Fig. 4: Shows the location of the applicant’s property (Red circle) and the direction of the view from the balcony area. 

61. [61]
    The view is not a view of any great monetary value, or of anything significant that objectively would demonstrate a need to protect the view. Even when the property was purchased, it was not an obstructed view as there were other large trees to either side of the neighbouring property and the roof of the neighbour’s house which obstructed the view.
62. [62]
    The applicant has, on his own evidence, in rebuilding his property, built a house with a higher profile which is closer to the neighbouring property, by up to 6 metres, noting the house is 2 metres longer and has a 4-metre deck at the back, which, if not for the subject trees, would overlook the respondent’s backyard.
63. [63]
    In the circumstances it would not seem unreasonable for the respondent to allow her Golden Cane palm trees to grow to create privacy from the neighbour’s larger deck. It is noted that the trees on the applicant’s property appear to be grown to the same height or higher, potentially for the same reason to provide privacy.

Decision

64. [64]
    In order to make tree orders, I am required to be satisfied, on the balance of probabilities, that the obstruction of the view creates an interference to the applicant’s use of their land that is substantial, ongoing, and unreasonable.
65. [65]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. According to Justice Dixon in Briginshaw v Briginshaw^[37] “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. 
66. [66]
    Taking into consideration the whole of the evidence, including weighing the issues in terms of evidencing the extent to which the loss of the pre-existing view is caused by the subject trees given the other factor in relation to the development of the new property and lack of clarity as to where the old landing would now be and the impact of the applicant’s own trees on the view; and the nature of the view that the applicant would have without the trees being present which is one which extends over dense housing; and weighing the matters in sections 73 and 75 of the Act, I am not persuaded or satisfied on the evidence that it is established that the trees are causing a severe obstruction of the applicant’s view which existed at the time of purchase.
67. [67]
    In addition, even if the obstruction of the view caused by the tree could be found to be severe, I am not persuaded on the evidence that the obstruction, while ongoing, is, when considered objectively, a significant and unreasonable interference with the use and enjoyment of the applicant’s land. 
68. [68]
    The Tribunal cannot make any orders for a remedy for interference unless it finds that the tree affects the neighbour's land in accordance with section 66(2). That is, the Tribunal cannot make any order for remedy where it has found that ongoing interference is not substantial or unreasonable.
69. [69]
    I am therefore unable to make an order in relation to the subject trees. For these reasons I refuse to make any orders and I dismiss the application.