Mitchell v Edwards[2024] QCAT 575

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Mitchell and Mr and Mrs Edwards live on adjoining land. This proceeding only relates to the dispute about bamboo trees and lillypilly trees planted by Mr and Mrs Edwards as a privacy screen after they bought their home. 
2. [2]
   The bamboo was planted along their side of the boundary between the houses and the back yards and the lillypilly trees were planted along their side of the boundary at the front of the properties. It is not disputed that Mr Mitchell lived in his home when Mr and Mrs Edwards moved into their home. The trees were not pre-existing, when Mr Mitchell purchased his home.
3. [3]
   The Tribunal directed the parties to file statements of evidence^[1] and for this tree dispute to be determined on the papers and without an oral hearing.^[2] Statements of evidence and other documents were filed. The documents refer to other disputes between the parties. I am not deciding those disputes. 
4. [4]
   I now proceed to decide the tree dispute. The delay in finalising this matter is regrettable and relates to resourcing issues.
5. [5]
   Mr Mitchell’s case has evolved both as to the trees in issue and the basis on which he contends that he is entitled to orders. It was expanded to include the lillypilly trees at an early time.^[3] 
6. [6]
   Mr Mitchell originally applied for orders in relation to the bamboo trees^[4] that:

   1. Mr and Mrs Edwards carry out work on the trees i.e. remove the trees, or remove or prune branches of the trees, remove or prune the roots of the trees;
   2. a person can enter Mr and Mrs Edwards’ land to carry out an order;
   3. a person can enter Mr and Mrs Edwards’ land to obtain a quote to carry out an order;
   4. Mr and Mrs Edwards pay compensation in the amount of $495.
7. [7]
   The Application contended that the bamboo requires regular trimming to a height of 1.5m. 
8. [8]
   Further in his Application, Mr Mitchell said that the bamboo trees have branches which are more than 2.5 m high and overhang the boundary by more 50 cm, the bamboo trees have caused TV interference, overhang his roof gutters and cause an obstruction of his view. 
9. [9]
   In accordance with the Tribunal’s directions Mr Mitchell filed copies of title searches and a registered plan identifying the location of each tree the subject of the Application and identified the species of trees.^[5] The registered plan identified that the dispute was not only in relation to the bamboo hedge but also in relation to lillypillies at the front of Mr and Mrs Edwards’ property. Mr Mitchell claims that branches are overhanging his land for most of the boundary. He claims that the lillypillies need to be trimmed to avoid a traffic hazard when driving out of his carport. He claims the bamboo is up to 5 m in height obstructing his view and leaves residue in his gutters. 
10. [10]
    Mr Mitchell says that the bamboo trees have caused serious damage to his land or property on his land and are causing substantial, ongoing and unreasonable interference with his use and enjoyment of his land. He more recently has raised a health and fire risk. 
11. [11]
    In respect of the lillypillies, as I understand it, he claims they are causing substantial, ongoing and unreasonable interference with his use and enjoyment of his land because he says they are a traffic hazard.
12. [12]
    Mr Mitchell filed photographs in support of his claim. There is limited evidence as to when many of the photographs were taken. This impacts the reliance I am able to place upon them.
13. [13]
    The Tribunal directed that a tree assessor be appointed to provide a report.^[6] Each of the parties paid $500 toward the cost of the Assessor. The Tree Assessment Report dated 13 August 2022 (‘Report’) is before me. 
14. [14]
    In relation to the bamboo hedge, the Report:

    1. identifies that it is planted on the eastern boundary of Mr and Mrs Edwards’ land, and has a height ranging from approximately 4 to 6 m. It notes that the height and spread varies along its length. Some areas of the hedge were observed to have been more maintained than others with some sections in a compact, pruned form and other areas with splayed culms.
    2. notes that it is in good health and planted into a custom-made housing to prevent root and stolon egress to adjoining soil. 
    3. notes that the bamboo hedge to the southern area from the dwelling minimises both view of the rear nature area and afternoon sunlight into the windows and onto the deck of Mr Mitchell’s house.
    4. notes the height of the bamboo hedge in combination with the proximity of the foliage to Mr Mitchell’s house limits drying time, which has caused a mossy build up. Photographs of a section of the side of Mr Mitchell’s home show ‘moss’, which is said to indicate moisture and lack of sunlight. At the time of inspection, pruning works had been carried out to reduce the extent of encroachment and the Assessor believed if kept at this distance and height, it should mitigate future problems.
    5. suggests that a stepped reduction in height of the hedge following the natural grade of the properties would not reduce the efficacy of the screening function.
    6. recommended that the bamboo hedge be reduced to a level no higher than the eaves of Mr Mitchell’s home and continue following the slope of property.
    7. recommended management of the height and mitigating the splaying culms and noted that this would be an ongoing and necessary regime that would need to be implemented on a regular basis to prevent further unnecessary tension between parties.
15. [15]
    In relation to the lillypilly hedge, the Report:

    1. notes that it has been planted in the north-eastern extremity of the boundary with the height of the hedge approximately 3 m and a width of approximately 1.2 m, that the hedge was healthy and manicured at the time of inspection and clear of obstruction or encroaching over the boundary. 
    2. notes that the most northern tree of the lillypilly hedge obscures a clear line of sight to the west along the road to safely leave the driveway with a vehicle at Mr Mitchell’s home.
    3. suggested that the northern most lillypilly be reduced to fence paling height or removed. The Assessor believed this work would not reduce the efficacy of the screening but would greatly increase visibility and improve safety for both vehicles and pedestrians.
16. [16]
    The Report notes that both hedges offer an important element of privacy. The Assessor recommended that a gardening company that specialises in working at heights be contracted to perform this work to prevent any unnecessary injuries.
17. [17]
    Mr and Mrs Edwards dispute many of Mr Mitchell’s claims. They sought various orders other than a dismissal of Mr Mitchell’s claim in their Response.^[7] The Tribunal’s records do not show that a filing fee was paid therefore any ‘counter-claim’ is not properly before the Tribunal.^[8] I consider it as a response only. 
18. [18]
    Mr and Mrs Edwards say that they accept the Assessor’s recommendation in relation to the bamboo hedge and have carried out work required and will continue to do so but they do not agree with the lillypilly hedge recommendation.

Have the pre-requisites of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) been satisfied?

19. [19]
    I am not satisfied that Mr Mitchell has complied with the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act.  On that basis, the application ought to be dismissed.
20. [20]
    Mr Mitchell is the applicant and bears the onus of establishing on the balance of probabilities his entitlement to orders under the ND Act.
21. [21]
    The Tribunal may make an order under section 66 of the ND Act if it is satisfied of various matters including that, in this case, Mr Mitchell has made a reasonable effort to reach agreement with Mr and Mrs Edwards.^[9]

Bamboo – reasonable effort to reach agreement

22. [22]
    Mr Mitchell says that prior to filing the Application he made ‘several attempts to resolve the dispute with the respondents regarding the bamboo’.^[10] He says he left Mr and Mrs Edwards a note in around 23 November 2020 requesting that the bamboo be trimmed because it was overhanging his property and making contact with the power and Internet cables attached to his property. He says when he did not receive a response, he trimmed some branches. Mr and Mrs Edwards deny that they received such a note. They say that have never refused to act on requests by Mr Mitchell for them to trim overhanging branches. 
23. [23]
    There is little explanation as to how the note ‘was left’. There is no explanation of any other attempts prior to filing the Application. Even if I accept that Mr Mitchell left a note, I am not satisfied that one note constitutes a reasonable effort. There is insufficient evidence before me to find that other attempts were made.
24. [24]
    The Tribunal has previously dismissed such applications where the applicant has failed to make a reasonable effort to reach agreement prior to commencing the Tribunal proceedings.^[11] In my view the ND Act places obligations on an applicant to attempt to resolve the issue prior to seeking the Tribunal’s assistance by way of orders. The Tribunal has observed that:^[12]

Orders made by the Tribunal against tree keepers are no insignificant thing. They bind the tree keeper, usually to an annual or other regular obligation to cut back branches to the common boundary, utilising a contractor. The costs are often quite substantial. The orders last up to 10 years and are noted against the tree keeper’s land title, sometimes affecting marketing a sale of the tree keeper’s land.

Lillypilly – reasonable effort to reach agreement

25. [25]
    There is no evidence before me that Mr Mitchell made a reasonable effort to reach agreement with Mr and Mrs Edwards in relation to the lillypilly hedge prior to commencing the Application. The Application did not refer to the lillypilly hedge and the issue was only introduced on 10 January 2022.
26. [26]
    On that basis, the part of the Application in respect of the lillypilly hedge ought to be dismissed.

Alternative construction – reasonable effort to reach agreement

27. [27]
    An alternative construction of section 65 of the ND Act is that reasonable efforts to reach agreement may be taken at any time prior to the Tribunal making an order. 
28. [28]
    Sometime after commencing the proceedings Mr Mitchell wrote to Mr and Mrs Edwards.^[13] Mr Mitchell requested that they remove or trim and control the bamboo to a maximum height of 100 mm above the top of the fence line right down the length of the two properties within 14 days. This request did not address the lillypilly tree dispute.
29. [29]
    After receiving the Report, the Tribunal proposed an agreement based upon the Report. Mr and Mrs Edwards returned it indicating that they did not agree to its terms.  Mr Mitchell did not return the proposed agreement. About eight months later, Mr Mitchell sought to modify the terms of the proposed agreement in relation to the bamboo trees and the lillypilly trees.^[14]
30. [30]
    As indicated earlier, Mr and Mrs Edwards have indicated that they have carried out the work set out in the proposed agreement to the bamboo trees and agree to continue to do so but take issue with the proposed work to the lillypilly trees.
31. [31]
    Even on a broader interpretation of the pre-requisite, I am not satisfied that Mr Mitchell has made reasonable efforts to seek agreement. The application ought to be dismissed.

Other pre-requisites – service of application

32. [32]
    Section 65(d) of the ND Act requires the Tribunal to be satisfied that Mr Mitchell has given copies of the Application as required under section 63 of the ND Act other than to the extent the requirement to do so has been waived. 
33. [33]
    There is evidence that the Application was given to Mr and Mrs Edwards in compliance with section 63(1)(a).
34. [34]
    Direction 2 made 13 December 2021 sought to address the pre-requisite in section 63(1)(b), (c) and (d). The evidence is that Mr and Mrs Edwards are the registered proprietors of their land and that they live there. Mr Mitchell has not filed any evidence of compliance with direction 2 nor has he filed any evidence or submissions upon which I could rely to find that further compliance with section 63 is unnecessary or should be waived, in particular, section 63(1)(b).
35. [35]
    I am not satisfied that this pre-requisite has been satisfied. On that basis, the Application ought to be dismissed.

Other pre-requisites – section 65(c)

36. [36]
    The Application asserts that branches of the bamboo hedge overhang by 50 cm or more and that the branches are more than 2.5 m above the ground. Although the evidence could be clearer, I find that it is more likely than not, based on the Assessor’s report and photographs attached to the Application, that at the time of the Application at least some of the bamboo branches overhung the common boundary by 50 cm or more and that at least some of those branches were more than 2.5 m above the ground.^[15] I accept that the process under section 57 of the ND Act does not apply to the extent that at least some of the bamboo branches are more than 2.5 m above the ground.^[16]
37. [37]
    Although it could be clearer, as I understand it, Mr Mitchell is not seeking to claim that his land is affected by the lillypillies due to overhanging branches that are more than 2.5 m above the ground. In those circumstances, the pre-requisite in section 65(c) of the ND Act does not arise in respect of the lillypillies.

If the pre-requisites had been met, should an order be made?

38. [38]
    I am not satisfied, on the balance of probabilities, that an order is appropriate for the reasons set out below.
39. [39]
    The Tribunal has broad powers to hear and decide:^[17]

…any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

40. [40]
    Land is ‘affected by a tree’ at a particular time if branches from the tree overhang the land, the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land,^[18] and the land adjoins the land on which the tree is situated.^[19] A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[20]
41. [41]
    I am satisfied that:

    1. the bamboo hedge and the lillypilly hedge are on land recorded in the freehold land register.^[21]
    2. the Application can be made in relation to a hedge, which comprises two or more trees.^[22]
    3. Mr and Mrs Edwards are tree-keepers for the trees.^[23]
    4. Mr Mitchell is a neighbour in relation to the trees.^[24]
42. [42]
    The Tribunal has broad powers to make an order it considers appropriate about a tree affecting the neighbour’s land to prevent serious injury to any person^[25] or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land^[26] or substantial, ongoing and unreasonable interference with Mr Mitchell’s use of his land.^[27]
43. [43]
    The ND Act recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved.^[28]
44. [44]
    There is no evidence before me that pruning will harm the hedges.
45. [45]
    Under the ND Act Mr and Mrs Edwards, as tree-keepers, are responsible for:

    1. cutting and removing any branches of the trees comprising the hedge that overhang a neighbour’s land.^[29]
    2. ensuring the trees do not cause serious injury to a person or serious damage to a person’s land or property or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of a person’s land.^[30]
46. [46]
    Those obligations are in place whether or not the Tribunal makes an order.

Serious injury/Serious damage – bamboo

47. [47]
    I am not satisfied, on the balance of probability, on the limited evidence before me, that the bamboo hedge is causing serious injury to Mr Mitchell or serious damage to Mr Mitchell’s land or property on his land.
48. [48]
    The ND Act does not merely require injury or damage. It qualifies those terms with the requirement that the injury or damage be ‘serious’. 
49. [49]
    Even if I was satisfied that Mr Mitchell had established that the bamboo trees caused serious injury or serious damage:

    1. Mr Mitchell stated in the Application that prior to commencing the proceedings Mr Edwards trimmed a small section of bamboo that was touching the power line at the front of Mr Mitchell’s house after he had been verbally requested to do so;^[31]
    2. Mr and Mrs Edwards have given evidence, which I accept, that they performed the trimming recommended by the Assessor within a short time of receiving the Report and agree to continue to perform the maintenance recommended. 
50. [50]
    These are factors in favour of not making an order.
51. [51]
    I consider each of the bases relied upon by Mr Mitchell.

TV reception interference

52. [52]
    I am not satisfied that the bamboo trees cause TV reception interference.    
53. [53]
    Mr Mitchell claims that the trees have caused serious damage to property on his land due to TV reception interference. Mr Mitchell contends that he has had to cut a couple of branches away that were touching the TV antenna on two occasions. He says the TV antenna had to be replaced at a cost of $600, he had a technician try to retune the old antenna but this was not effective. He says he replaced his televisions but that did not assist. Mr Mitchell claims his TV reception noticeably dropped after the bamboo was planted and that his technician indicated that the bamboo was the likely cause. I place little weight on this indirect evidence. If the technician had given a statement of evidence that would have been more persuasive. 
54. [54]
    Mr and Mrs Edwards dispute that the bamboo is causing the interference. They say that in 2019 they replaced their TV antenna and installed a signal booster due to reception issues in the area. They say that both the houses are low set, and that the surrounding bushland and the operation of cell towers caused interference, well before they planted bamboo. 
55. [55]
    Even if I was satisfied that the bamboo hedge caused TV reception interference and this could be considered damage, which I am not, there is insufficient evidence before me that the damage could be regarded as ‘serious’.
56. [56]
    Mr Mitchell has not made out his claim.

Walls

57. [57]
    I am not satisfied that the bamboo trees are causing serious damage to the walls of Mr Mitchell’s house.
58. [58]
    Mr Mitchell says that the trees are damaging his house. As I understand it, Mr Mitchell says that branches/leaves are brushing against the house and leaving a residue. He says the bamboo is staining his wall ‘closer to fence level’. 
59. [59]
    He says in the next 12 months the house walls will probably need repainting due to stains from branches rubbing against the wall and eaves. 
60. [60]
    He says that the bamboo should be maintained at a height just above the fence line, in order to maintain clean gutters and to avoid staining from the bamboo rubbing on his side wall. 
61. [61]
    He attributes at least some of the stain to mildew caused by the area not being given a chance to dry out because sunlight is obscured by the bamboo. He says that the damage to the wall has been progressing since the growth of the bamboo became apparent. There is a photograph on page 21 of his statement of evidence filed 6 April 2022 which is said to show a stain.
62. [62]
    Mr and Mrs Edwards point to photographs taken while trimming the bamboo in January 2022.^[32] These photographs do not appear to show wear or damage to or fungus on Mr Mitchell’s house wall. 
63. [63]
    All homes require maintenance. There is no detailed evidence in relation to these claims. There is no evidence that they are extensive nor that they exceed usual home maintenance. The Assessor commented that there was some ‘moss’ on part of the side wall and indicated that this was an issue arising from reduced sunlight as referred to earlier at [14]. The Assessor did not give evidence of the extent of the staining.
64. [64]
    Even if I was satisfied that the bamboo hedge is causing staining to the house walls and this could be considered damage, there is insufficient evidence before me that the damage could be regarded as ‘serious’. 
65. [65]
    Mr Mitchell has not made out his claim.

Stormwater pipes

66. [66]
    I am not satisfied that the bamboo trees caused serious damage to the stormwater pipes.
67. [67]
    Mr Mitchell contends that roots from the bamboo trees appear to have cracked the stormwater pipes. He also contends that this damage may have been caused when, he says, Mr Edwards removed a stone retaining wall that was formerly on the boundary of the adjoining properties. 
68. [68]
    There is no detailed evidence in relation to these claims. There is evidence before me that the bamboo trees were planted in custom made housing to prevent root and stolon egress to adjoining soil. The Assessor accepted that the planter boxes were appropriate for this purpose.
69. [69]
    Mr Mitchell has not made out his claim.

Fire hazard

70. [70]
    I am not satisfied that the bamboo trees are likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land by reason of being a fire hazard.
71. [71]
    Mr Mitchell submits that the bamboo hedge ‘presents a not insignificant risk to my Property…in the event of a fire’.^[33] He refers to a conversation with an unidentified member of the Queensland Fire and Emergency Services. I place little weight on this indirect evidence. If the person had given a statement of evidence that would have been more persuasive.
72. [72]
    There is no persuasive evidence before me that the bamboo hedge is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land.
73. [73]
    Mr Mitchell has not made out his claim.

Health hazard

74. [74]
    I am not satisfied that the bamboo trees are causing serious injury to Mr Mitchell’s health nor that they are likely within the next 12 months to cause serious injury.
75. [75]
    Mr Mitchell submits that he has lung disease, that is exacerbated by mildew/moss which has developed on the western wall of his property. He says that the presence of mildew/moss presents a risk to his health and exacerbation of his condition. Mr Mitchell has filed some documents to substantiate his medical condition. Those documents do not clearly show that Mr Mitchell’s condition has deteriorated because of the presence of mildew/moss since the bamboo hedge has been planted. 
76. [76]
    Mr Mitchell has not filed any statement of evidence from a medical practitioner or other relevant expert of the likelihood that he is at risk of serious injury to his health due to the presence of mildew/moss on the exterior wall of his property. He has attached to his statement of evidence a copy of a medical study and seeks to draw his own conclusions from that.             
77. [77]
    Mr Mitchell has not made out his claim.

Substantial, ongoing and unreasonable interference

78. [78]
    I am not satisfied, on the balance of probability, that the hedges cause substantial, ongoing and unreasonable interference.
79. [79]
    Even if I was satisfied that Mr Mitchell had established that the bamboo trees caused substantial, ongoing and unreasonable interference, Mr and Mrs Edwards have given evidence, which I accept, that they performed the trimming recommended by the Assessor within a short time of receiving the Report and agree to continue to perform the maintenance recommended. This is a factor in favour of not making an order in relation to the bamboo hedge.

Obstruction of sunlight – bamboo

80. [80]
    I am not satisfied, on the balance of probability, that the bamboo hedge causes a severe obstruction of sunlight to a window or roof of Mr Mitchell’s house.
81. [81]
    In the Application, Mr Mitchell claims that the mid-morning sum to the patio has been obstructed. In subsequent documents Mr Mitchell claims that the early afternoon sun on his deck is obstructed. Mr Mitchell also claims a loss of mid-afternoon to late afternoon sunlight into his kitchen and dining area and says that from about 3pm it is necessary to turn on lights in these areas.^[34]
82. [82]
    Where the interference claimed is an obstruction of sunlight the tree must rise at least 2.5 m above the ground and the obstruction to a window or roof of a dwelling must be severe.^[35] 
83. [83]
    Mr and Mrs Edwards claim that Mr Mitchell’s property is located to the east of their property so that the bamboo could not obstruct mid-morning sun. Mr Mitchell gave evidence that his property faces southeast. I accept that it is not likely that the bamboo hedge, planted to the west of Mr Mitchell’s house, would obstruct morning sun to a window or roof of Mr Mitchell’s house.  
84. [84]
    As noted earlier in these reasons at [14] the Assessor gave evidence that the hedge reduces afternoon sunlight into the windows and onto the deck of Mr Mitchell’s house.
85. [85]
    I accept that the bamboo planted to the west of Mr Mitchell’s house is likely to obstruct some afternoon sun. 
86. [86]
    The Tribunal has previously found that a severe obstruction is one that must be considerable.^[36]
87. [87]
    Mr Mitchell’s evidence is not overly helpful in assisting me to make a finding that the obstruction is severe. He says, ‘l know what we used to get and what we get now.’ 
88. [88]
    Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference then I may consider whether there is anything other than the tree which has contributed or is contributing to the interference.
89. [89]
    The evidence is that a covered deck was constructed by Mr Mitchell in November 2018.^[37] There is no independent evidence which differentiates the extent to which the covered deck obstructs sunlight into his kitchen and dining area and the extent to which the hedge obstructs sunlight.
90. [90]
    I am not satisfied that the obstruction of sunlight to a window or roof caused by the bamboo is severe.
91. [91]
    Mr Mitchell has not made out his claim.

Leaf litter/debris – bamboo 

92. [92]
    I am not satisfied, due to the state of the evidence, that the bamboo leaf litter/debris is excessive.
93. [93]
    Mr Mitchell claims that the bamboo fills his roof gutters and that because of medical conditions he is unable to safely climb ladders. He says his gutter cleaner found a lot of fibrous bamboo residue mainly towards the northwestern area of the roof, which had to be removed by hand from the back gutters because it kept clogging up his vacuum cleaner. 
94. [94]
    Mr and Mrs Edwards contend that the bamboo drops very little leaf litter but acknowledge that they clean their gutters 2-3 times a year because of leaf litter from the surrounding gum trees and bushland. Mr Mitchell says that because of prevailing wind the leaf litter from the bamboo would be greater on his property than Mr and Mrs Edwards’ property. There is no meteorological evidence as to prevailing winds before me.
95. [95]
    Mr Mitchell says that the bamboo should be maintained at a height just above the fence line in order to maintain clean gutters. 
96. [96]
    On many occasions the Tribunal has found that tree debris will not justify an order unless there is a finding that the debris is excessive.^[38]
97. [97]
    There is no evidence before me of the frequency with which it is necessary to clean up bamboo leaf litter/debris or other evidence which could form a basis for a finding that the bamboo leaf litter/debris is excessive.
98. [98]
    Mr Mitchell has not made out his claim.

Obstruction of view – bamboo

99. [99]
    I am not satisfied, on the balance of probability, that the bamboo hedge causes a severe obstruction of a view from Mr Mitchell’s dwelling, that existed when he took possession of the land.
100. [100]
     Where the interference is an obstruction of a view it must be a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land, and the tree must be at least 2.5 m above the ground.
101. [101]
     The Tribunal has previously found that a severe obstruction is one that must be considerable.^[39]
102. [102]
     It is well established that in Australia, there is no general right to a view.^[40]
103. [103]
     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.^[41]
104. [104]
     In Laing & Anor v Kokkinos & Anor (No 2)^[42] the then President, Wilson J said:

[39] 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.

[40] 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.

[41] 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.

…..

[43] 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. In the absence of clear definition, the basic rule of statutory construction is that it should be construed according to its natural and ordinary meaning; and, in a way that will best achieve the purpose of the relevant Act.

….

[45] I am persuaded the natural and ordinary meaning of the term, in 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.’

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

105. [105]
     There is limited evidence of the view that existed when Mr Mitchell took possession of his property. There are no photographs of the view when Mr Mitchell took possession in October 1996. There is no detailed description of the view.
106. [106]
     Mr Mitchell claims that the bamboo has totally obstructed the view of the native bushland and small creek and lagoon to the rear of his property. He says that the small creek was frequently used by native animals drinking early morning or late evening.  
107. [107]
     Mr Mitchell contends that the bamboo on the first, second and lower levels of Mr and Mrs Edwards’ property interrupts the panoramic view of the bush reserve at the rear of his property.
108. [108]
     Mr and Mrs Edwards acknowledge that the bamboo obstructs Mr Mitchell’s view of the rear section of their yard, their bedroom windows and their patio. They claim that Mr Mitchell’s trees and bushes obstruct his view of the reserve at the rear of his own property. 
109. [109]
     Mr Mitchell contends that his trees are maintained or planted in such a way that they do not obstruct his view. He says the bamboo planted by Mr and Mrs Edwards has totally interrupted the view as it existed when he purchased the property in October 1996.

Where was the view seen? 

110. [110]
     Mr Mitchell clarified that the view he claims has been obstructed is the view from his rear balcony/deck. 
111. [111]
     The view sought to be protected is a view across side boundaries, which is more difficult to protect than a view across front or rear boundaries.
112. [112]
     It is not clear whether Mr Mitchell contends that the view sought to be protected was a sitting or standing view. To the extent it is a sitting view, I accept, that it is less reasonable to restore such views.
113. [113]
     Mr and Mrs Edwards dispute that the view sought to be protected existed from Mr Mitchell’s dwelling at the time of Mr Mitchell’s taking possession. They produced evidence which shows, and I accept, that Mr Mitchell’s balcony/deck as now configured is not a mere replacement of an earlier one, as contended by Mr Mitchell.^[43] 
114. [114]
     There was an outdoor area, but it appears to be much smaller in size, not in the same location and does not appear to be structurally part of the dwelling. The outdoor area, which existed in October 2017, is toward the eastern side of Mr Mitchell’s house, whereas the largest part of the current balcony/deck, which was constructed in about November 2018 is towards the western side of Mr Mitchell’s house.^[44]
115. [115]
     I am not satisfied that Mr Mitchell has established that the view from his current balcony/deck, which is obstructed by the bamboo hedge, is the same view as existed from part of his dwelling, when he took possession of his land in 1996. I am not satisfied that the view from his current balcony/deck is one that may be protected by an order of the Tribunal.
116. [116]
     If I am wrong about that then I consider the next question.

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

117. [117]
     I accept that at least part of the view across the side boundary has been obstructed by the bamboo trees. 
118. [118]
     I also accept that a balcony/deck is usually regarded as a living area and that views from such areas are more significant than views from bedrooms or service areas.
119. [119]
     Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference then I may consider whether there is anything other than the tree which has contributed or is contributing to the interference.
120. [120]
     Mr Mitchell contends that Mr and Mrs Edwards have constructed a dividing fence and a rear fence, which both obstruct the view.  There is no clear evidence as to the respective extent to which the fences obstruct the view and the extent to which the hedge obstructs the view. 
121. [121]
     According to the registered plan in evidence before me, Mr Mitchell’s southern boundary is more than 20 m long and Mr and Mrs Edwards’ southern boundary is 18 m long. The bamboo is not obstructing Mr Mitchell’s view of the nature reserve along his southern boundary. 
122. [122]
     Mr Mitchell says the view as it is ‘now available is at best a distance of around 6 to 8 m from my patio, taking as a reference point the back right corner of the patio. From the back left corner of the patio it is estimated at around 12 m.’
123. [123]
     Mr Mitchell contends that the obstruction to his view is causing a diminution in value of his property. A short appraisal by a real estate agent is attached to Mr Mitchell’s statement of evidence.^[45] The appraisal suggests that the obscuring of the view and the planting of the bamboo will have a material impact on the price a buyer may pay in the order of 5% to 8% of the property value, which he assesses as being in the vicinity of $25,000-$50,000. 
124. [124]
     There is no evidence before me that the real estate agent is also a qualified valuer.  The real estate agent’s evidence as to diminution in value does not seek to separate out the loss of view from the planting of the bamboo, which appears to be a separate adverse consideration, which may be taken into account by potential buyers.
125. [125]
     Mr and Mrs Edwards attach three appraisals by real estate agents.^[46] These appraisals dispute the impact the bamboo may have on prospective buyers and dispute the diminution in value. 
126. [126]
     I am not satisfied that Mr Mitchell has established any diminution in value because of the loss of view, even if it was a view capable of being protected.
127. [127]
     If I was satisfied that a view from his dwelling which existed when Mr Mitchell took possession has been severely obstructed by trees, which I am not, then I am required to balance the interests of the parties by considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, sections 72, 73 and 75. I address those matters below at [132].

Traffic hazard – lillypilly hedge 

128. [128]
     Mr Mitchell claims that the lillypillies at the front of Mr and Mrs Edwards’ property obstruct his view of traffic. He says that they should be trimmed and kept tidy and cut back to fence height for about a metre to assist with observing vehicles travelling southeast on the left. He says there is a dual obstruction as there is also a lamp post.  The photographs in evidence show a post on the footpath near the edge of the driveway close to the road. Mr Mitchell says that the traffic in the street has increased in the last 10 years and the dense lillypilly foliage, the height of the fence and the pole contribute to the traffic hazard.
129. [129]
     Mr and Mrs Edwards say that the trees, planted in May 2019, provide privacy as Mr Mitchell has a clear view of their bathroom and other windows across the front of their house from his carport. They say that there is very little traffic that drives past Mr Mitchell’s and their properties, given it is a small crescent and no right turn is permitted into the connecting street closest to Mr Mitchell’s driveway. They say that the trees are planted more than four metres from the road so that when reversing the driver’s window would be clear of the trees prior to the car entering the road.
130. [130]
     Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference then I may consider whether there is anything other than the tree which has contributed or is contributing to the interference.
131. [131]
     Mr Mitchell says that in addition to the lillypilly hedge there is an additional obstruction of traffic by the fence and a power pole. Mr and Mrs Edwards submit, and I agree, that there is also a council tree on the foot path, which provides a similar obstruction to vehicular traffic approaching from the west so that if the northern most lillypilly was cut to fence height or removed the footpath tree would obstruct the street view on a similar line of sight.^[47] This is a factor in favour of not making the order.

Other considerations

132. [132]
     I am required to consider various matters including the contribution to amenity the trees make to Mr and Mrs Edwards’ land, the local ecosystem, public amenity and privacy.^[48]
133. [133]
     I accept that the trees significantly contribute to both parties’ privacy from the other.
134. [134]
     I may consider any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or interference or the likelihood of injury or damage or interference.^[49]
135. [135]
     Mr Mitchell contends that the bamboo does not contribute to the protection of vegetation of a waterway or foreshore because it is an invasive species. He says that planting of the bamboo trees intrudes on the natural enjoyment of his land and is ”an eye sore”, that the bamboo was left unattended and is not maintained, the bamboo does not add to the aesthetic value of the area, and does not add to privacy and enjoyment of his property.
136. [136]
     A publication by the Queensland Government attached to the Application notes that bamboo is not a prohibited or restricted invasive plant under the Biosecurity Act 2014 (Qld).
137. [137]
     Mr and Mrs Edwards say that after Mr Mitchell commenced construction of a raised balcony/deck they were concerned about their privacy in their backyard and their bedroom. They claim that they sought Mr Mitchell’s agreement to replace the retaining wall and boundary fence but when agreement was not reached, they undertook construction within their land, which included planter boxes and planted bamboo in September 2019 to provide privacy to their backyard, bedroom and side bedroom window from Mr Mitchell’s carport.
138. [138]
     Mr and Mrs Edwards say that they researched and sought advice prior to deciding to plant the gracilis bamboo. They say it is a non-invasive, clumping bamboo which grows straight and vertical and has a shallow root system. They say the gravel board was dug into the ground below the fence and the raised treated pine sleeper planter box provides root barriers for the bamboo. They say once the bamboo is fully matured they intend to maintain it, they have been maintaining it twice a year as a way to promote thicker culms, which maintain their straight vertical position better than thinner culms, which move more during high winds and droop when wet.
139. [139]
     I accept that Mr and Mrs Edwards have taken steps to minimise issues arising from the planting of their privacy screen.
140. [140]
     There is some evidence of previous trimming by Mr and Mrs Edwards. This includes:

     1. in late November 2020 they trimmed lower branches and any foliage overhanging Mr Mitchell’s land. 
     2. that in December 2020 they purchased a telescopic hedge trimmer to assist to maintain the hedge.
     3. they trimmed a section of the bamboo that was touching the power lines at the front of Mr Mitchell’s house prior to commencement of the proceedings. Mr Mitchell does not clearly indicate when this was. Mr and Mrs Edwards say that Mr Mitchell verbally requested they trim the bamboo close to power lines on 1 December 2020 and they attended to this on 12 December 2020.^[50]
     4. on 12 December 2020 they trimmed the bamboo between the houses below Mr Mitchell’s roof line, and trimmed culms and branches where they overhung.  They say Mr Mitchell did not mention other issues with the bamboo.
     5. that before they received the Application in December 2021, they had planned to trim over the 2021 Christmas break.
     6. that they undertook trimming on 30 December 2021, 2 January 2022, 3 January 2022, 24 April 2022, 11 August 2022, January 2023, February 2023, 22 April 2023.
     7. where they see culms growing on an unfavourable angle, they cull them.
141. [141]
     Mr and Mrs Edwards gave evidence that they intend to maintain the bamboo and other vegetation at least three times a year with additional work performed as required or requested.
142. [142]
     There is also some evidence of trimming of branches by Mr Mitchell in November 2020, which led to an altercation between the parties. Mr and Mrs Edwards say that Mr Mitchell cut the bamboo at the height of the fence, within their boundary.^[51] Mr Mitchell denies this and says he trimmed overhanging bamboo back to the fence line. Mr and Mrs Edwards say if Mr Mitchell had asked them to trim it or if he had only trimmed overhanging foliage there would not have been an issue.

What orders are appropriate to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Mitchell’s land?

143. [143]
     I am not satisfied that any orders are appropriate.   
144. [144]
     The orders sought by Mr Mitchell have varied throughout this proceeding. Initially he did not seek total removal of the bamboo. In the Reply to the Response^[52] he sought removal of the bamboo from ‘below the first level of the Respondent’s terracing, to restore my view and trimming and control of it between the two houses. … I would like to see approximately 1 metre of the lillypilly at the front of my property removed or trimmed down.’^[53] However, in his statement of evidence filed 2 February 2023 he sought removal of the bamboo within seven days of the Tribunal’s order at Mr and Mrs Edwards’ sole cost and the payment of compensation in the sum of $4,712.75.  He did not expressly seek any orders in relation to the lillypillies.
145. [145]
     The evidence is, and I accept, that Mr and Mrs Edwards have taken steps to comply with their obligations as tree-keepers. This is a factor in favour of not making an order.

Human Rights Act 2019 (Qld) (‘HR Act’)

146. [146]
     The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.^[54] A human right may only be subjected to reasonable limitations.^[55]
147. [147]
     In deciding this application:

     1. I am not acting as a public entity because I am not acting in an administrative capacity.^[56]
     2. I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.^[57]
148. [148]
     I accept that this proceeding and the determination of it potentially impacts both parties’ rights to a fair hearing and I considered them. In coming to my decision, I have considered the documents filed by both parties.^[58]
149. [149]
     I accept that these proceedings and my decision potentially impacts other rights, in particular property rights^[59] and the right to privacy and reputation.^[60] I have considered the parties’ human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.^[61] Any limitation of the human rights is consistent with the objects of the Act^[62] and the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).^[63]