Coombe v Engwirda[2025] QCAT 282

REASONS FOR DECISION

Background

1. [1]
   The applicants Neil Arden Coombe and Olivia Jane Arden Coombe (“Mr and Mrs Coombe”) and the respondent Benjamin James Engwirda (“Mr Engwirda”) are neighbours sharing a dividing fence between the two properties. Mr and Mrs Coombe lodged an application in this tribunal on 23 June 2022 claiming that:

3. (a)
   There are several trees which are problematic on Mr Engwirda’s property, which they seek are pruned to reduce their height and then are regularly maintained at an agreed height. The trees in question are one Ivory Curl, three Lilly-Pilly trees, one Fish Tail palm and several Golden Cane palms.  The trees are in excess of 2.5 metres, growing rapidly and well above the horizon line and are blocking a view which existed when Mr and Mrs Coombe purchased the property in June 2015.

3. (b)
   They purchased the house purely on the strength of the view.  The view extends north-west to south­east, out across the suburbs to the horizon and encompasses the Gold Coast skyline, ocean glimpses and sky. The tree growth has resulted in a loss of approximately 40% of the overall view and will adversely affect their property's valuation as the view is from a high hillside elevation.

3. (c)
   The trees are affecting their use and enjoyment of the property immensely as:

3. (i)
   They are alarmed at the unchecked height and closeness of these trees and the continued impact on their views and light if they remain unchecked.

3. (ii)
   Their wellbeing has been affected as it is causing a great deal of stress to be reminded many times each and every day when looking out the windows and cleaning up that they are being treated unfairly by Mr Engwirda.

3. (iii)
   They no longer spend time on the back deck due to the trees.

3. (iv)
   The growth of red fruit clusters on the Alexander Palms have attracted rats and many currawongs that then regurgitate hundreds of red, ripe seeds in and around the pools, on paths, deck, chairs, tables, back gardens, railings, resulting in increased and regular cleaning to remove the stains and the seeds clogging the pool filter.

3. (d)
   Mr and Mrs Coombe have attempted to resolve the issue with Mr Engwirda through written and oral communication and attempting to engage the Dispute Resolution Centre to no avail.

2. [2]
   Mr and Mrs Coombe sought the following orders:

3. (a)
   An order requiring the removal of the trees or pruning of the branches.

3. (b)
   An order to allow a person to enter the property to provide a quote and carry out the work.

3. (c)
   Mr Engwirda to pay the cost of the orders.

3. (d)
   The trees to be replaced with more appropriate species with a maximum height of no more than 4 - 5 metres or if the trees are maintained, a maintenance order requiring:

3. (i)
   Bi-annual trimming of these trees and/or any other problematic emerging trees to a height of 2 metres above the fence line to be carried out immediately and then in May and November each year to allow a maximum growth of 5 metres.

3. (ii)
   The Alexander Palms to be regularly cleaned of dead fronds to minimise bird damage and vermin.

3. [3]
   Mr Engwirda lodged a response with the tribunal on 15 August 2022 stating that:

3. (a)
   He denies that the trees have any effect on Mr and Mrs Coombe’s use or enjoyment of their land as the trees are non-invasive, represent no threat to any property or fences and have caused no damage.

3. (b)
   All the trees in question are close to the maximum heights and are at a similar height to when Mr and Mrs Coombe purchased their property.

3. (c)
   The photographs provided are not a true representation of the claimed blocked view or excessive trees growth as they haven't been taken from the same spot or at the same angle or height resulting in an exaggeration of the loss of view.

3. (d)
   Other factors have impact on the views held by Mr and Mrs Coombe, including the development along the coastline and the growth of greenery on other properties. Other neighbours have similar plants of similar heights which have not been complained about and Mr and Mrs Coombe have other trees in their backyard which are as high as the subject trees.

3. (e)
   He does maintain the palms to ensure that they are sufficiently clear of the fence line and takes responsibility for any fronds that may fall. He has never seen any vermin as claimed. There has been no signs of rat or mice droppings or any evidence of damage that they might have caused.

3. (f)
   He agrees some trees need to be pruned (but disagrees about the height requested) and states some trees, such as the Alexandra Palms can’t be pruned and would need to be removed, which would cause privacy concerns. The request to prune the Golden Cane would require pruning 40-50 palms which is unreasonable and unnecessary and would greatly affect Mr Engwirda’s enjoyment of his land and impact on their privacy.

3. (g)
   Mr Engwirda agrees contact has been made to try and resolve the dispute by both parties prior to the QCAT proceedings commencing.  Mr Engwirda states Mr Coombe was relentless with calls, text messages and repeated knocks on the door telling Mr Engwirda he needed to do pruning, from the time they moved into the property in 2021, which frightened his mother-in-law. Mr Engwirda explains the reason he could not do mediation through the Dispute Resolution Centre was that he was waiting for an urgent heart procedure.

4. [4]
   Mr Engwirda sought the tribunal make the following orders:

3. (a)
   The tree heights be maintained at the current height to ensure his family’s right to enjoy their privacy and enjoyment of their land.

3. (b)
   Any works that the tribunal orders are to be carried out by a licensed contractor that is fully insured and to be paid by Mr and Mrs Coombe, given they want this work done.

5. [5]
   On 20 September 2022 Mr and Mrs Coombe filed further material, in reply to the issues raised in Mr Engwirda’s response. Mr and Mrs Coombe state they believe Mr Engwirda made a number of false and misleading claims. The key issues raised in this material were:

3. (a)
   They dispute the allegations that they were relentless with constant phone calls, text message and repeated knocks on the door, stating they never called Mr Engwirda and only attended at his property twice.

3. (b)
   They dispute that the photos Mr Engwirda provided were photos of the properties that were taken at the time of sale on 26 June 2015, stating they were taken some 18 months earlier when the property first went on the market. They can tell this because the pool fence didn't exist in the photos, but it did at the time of purchase and the interior and furnishings had changed.

3. (c)
   They have always had a clear view which aligns with their submitted time-line photos. All their photos have date stamps on the metadata and are accurate.

3. (d)
   They believe that the legal limit is 2.5 metres above the ground where a view exists. They rescind their previous request for the tribunal to make an order that allows the trees to be trimmed to a height of 2 metres above the fence line or allows them to grow to 5 metres at maximum height as they no longer trust that Mr Engwirda will comply once they reach that borderline height. They now ask that an order be made to ensure that no trees grow above 3.5 metres. They still seek that trimming should be undertaken by Mr Engwirda or his contractor in May and November each year and that the Alexander Palms are cleared of dead fronds and emerging florescence as previously requested.

Statutory framework

6. [6]
   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]
7. [7]
   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]
8. [8]
   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 Mr and Mrs Coombe and Mr Engwirda 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.
9. [9]
   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]
10. [10]
    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 trees are situated on the land belonging to Mr Engwirda, and therefore Mr Engwirda is the tree-keeper for all the trees subject to the application.
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]
    Mr and Mrs Coombe’s assertion that the maximum height of a tree where there is a view is 2.5 metres is legally incorrect. There is no maximum height required in law, only that the tree keeper must ensure their trees are not affecting another person’s property, regardless of height. Mr and Mrs Coombe appear to have misinterpreted s 66(3)(a) which states that a claim about substantial, ongoing and unreasonable interference as a result of a loss of a view, cannot be made unless the tree in question is at least 2.5 metres.
15. [15]
    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]

Unreasonable interference – Views

16. [16]
    It is well established that in Australia, there is no general right to a view.^[23] 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.^[24]
17. [17]
    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.

3. (a)
   Firstly, the tribunal must consider what view existed when Mr and Mrs Coombe took possession of the property.

3. (b)
   Secondly, the tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view.

3. (c)
   If 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.^[25]

40. [18]
    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, adopted three steps of a four-step process identified by the New South Wales Land and Environment Court in Tenacity Consulting v Warringah Council^[26] (‘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.^[27]

19. [19]
    The process requires consideration of the meaning of the term ‘severe obstruction’. In Haindl v Daisch,^[28] 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.^[29]

Tree Assessor’s Report

20. [20]
    On 11 April 2023, 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. On 10 July 2023, Mr Steven Richards, the tree assessor, visited the properties. He subsequently prepared a report for the tribunal dated 14 July 2023. 

1. [1]
   The report considered only the trees affecting alleged views or trees that may affect these alleged views within the next 12 months.  Accordingly the report considered six trees^[30] on Mr Engwirda’s property and provided a table overview of the tree details and whether the recommendation was to remove or retain the tree (attached below as Table 1). The Trees were an Ivory Curl (Tree no. 1), a Weeping Lilly Pilly (Tree no. 2), a Clustering Fishtail Palm (Tree no. 3), a Cheese tree (Tree no. 4), Golden Canes (Tree no. 5) and two Alexander Palms (Tree no. 6).

Table 1

M - Mature

21. [21]
    The key finding of the report were:

3. (a)
   As the properties share a dividing fence diagonally none of the assessed trees overhang the shared boundary or impact in any way other than an obstruction of a view. 

3. (b)
   Mr and Mrs Coombe’s view is from their rear verandah and the views across Mr Engwirda’s land is to the east and north-east, overlooking Mermaid Waters to Mermaid Beach and Miami Beach.

3. (c)
   The trees all pre-exist the time when Mr and Mrs Coombe took possession of their property. Mr Engwirda’s rear garden area was carefully landscaped and planted at its conception and the majority of the planting scheme (other than the subject trees) work well for the surrounds creating a pleasant ambience that contributes to Mr Engwirda’s use and enjoyment of his property as well as providing necessary screening from the elevated houses to the rear. 

3. (d)
   The selection of the subject tress with the exception for Tree No. 1 were inappropriate for the location and the type of pruning required has irreparably damaged Trees No. 2 and 4. None of the broadleaf trees assessed have a canopy architecture that can have height reduction procedures that conform to Australian pruning standards. Accordingly the poor selection of large trees planted along the rear boundary of Mr Engwirda’s property by a previous owner, and the previous pruning/lopping of the trees has created the current situation. Correct plant selection is imperative to ensure that total height and spread achieved by the plant is not greater than the space it occupies or restricting in its amenity purpose for surrounding residences.

3. (e)
   Tree No. 1 is in good health and has recovered successfully from prior pruning and further height reduction would not conform to Australian pruning standards and be detrimental to the subject tree’s long-term health. Historical pruning wounds observed on the tree demonstrate the tree must have grown to a comparable height to that observed at the time of inspection for the original cuts to be made. This original height would pre-date the time the applicants took possession of their property. 

3. (f)
   Tree No. 2 and Tree No. 4 are both very large species, growing to over 15 metres in height in domestication. Containing these trees to the necessary dimensions to restore views is not feasible. 

3. (g)
   Tree No. 3 is a Clustering Fishtail Palm which grows to 7 metres. Palms cannot have their stems cut to reduce height without killing the entire stem, therefore reduction management is not possible for this tree.

3. (h)
   Tree No. 5 is a Golden Cane clump that runs along the western boundary of the respondent’s property. Golden Cane generally grow with three distinct layers that can be cyclically pruned to reduce height. The tallest stems can be removed which reduces the overall height by approximately 2 metres. These next two layers will continue growing and a third will take the place of the lowest level. 

3. (i)
   Tree No. 6 is two Alexander palms visible in the panoramic image above. These palms will continue to increase in height and as such do not constitute a severe and ongoing obstruction.

3. (j)
   Continued height reduction as requested by the applicants is not feasible on an ongoing basis. Selected removal and thinning of the population in the respondent’s property will achieve a good balance between mitigating the obstruction and restoring views and still provide necessary privacy for the respondent. Accordingly the Tree Assessor recommended:

3. (i)
   Trees No. 2, 3 and 4 (Weeping Lilly Pilly, Fishtail Palm and Cheese Tree) be removed in their entirety.

3. (ii)
   Replacement plants are not required as the extent of shrubs and plants remaining will negate the effect of their removal.

3. (iii)
   Tree No. 5 (Golden Cane Palms) receive annual or as needed removal of the tallest stems to reduce the height.

3. (iv)
   No work is necessary to Tree No. 1 (Ivory Curl) or Tree No. 6 (Alexander Palms).

3. (v)
   Works should be conducted by a Min. AQF level 3 arborist with appropriate insurances and performed in accordance with AS 4373-2007 Pruning of Amenity Trees.

Material filed in proceedings

22. [22]
    The tribunal has considered all material filed by both Mr and Mrs Coombe and Mr Engwirda in determining this matter.  In addition to the application and response and reply as noted above, Mr and Mrs Coombe have filed an application for directions dated 14 September 2023 and submissions dated 24 April 2024.
23. [23]
    The application for directions filed in September 2023 requests an order for the removal of two further trees which were not part of the initial application filed in June 2022, being two Waterhousea floribunda (Weeping Lilly Pilly) trees. Mr and Mrs Coombe assert these trees should be removed as they are rapidly growing and are approaching the skyline. As they are the same species as Tree No. 2 which the assessor has recommended removal and can obtain a height to 15 metres, they are unsuitable for the location.
24. [24]
    The submissions dated 24 April 2024 reiterated the applicants’ concerns with the subject trees, including their concerns about the importance of their view and the severity of the obstruction which will continue and worsen in the future without any intervention, and provided a chronology of events and the applicants’ response to the tree assessor’s report. The key points in the submissions were:

3. (a)
   The affected view is more encompassing than suggested in the tree assessor’s report as it covers the areas of Robina Waters, Mermaid Waters, Mermaid Beach, Miami Beach and headland, Burleigh Waters and North Burleigh.

3. (b)
   They have noticed the impact of the density of the trees this past summer, when they experienced a great reduction in the amount of air flow they normally get from the cooling breezes come from the east/south easterlies off the ocean. In addition, the trees now block the morning light inside the house making it necessary to turn on lights. The impact is oppressive.

3. (c)
   Trees 1, 2, 3 are all within 1.5 to 2 meter of pipe and could represent a root hazard to the pipelines in the future.

3. (d)
   The assessor also told Mr and Mrs Coombe that Tree No. 1 (the Ivory Curl) could be thinned to see the view through it. However this was not in the report.

3. (e)
   Mr Engwirda has conducted some work on the trees in March 2024 where he eliminated several of the tallest branches of Tree No. 5 (Golden Cane Palms) and cut down Tree No. 4. (Cheese tree).  Mr Engwirda also voluntarily removed Tree No. 6 (Alexander Palms).

3. (f)
   The work conducted does not alter Mr and Mrs Coombe’s application as they do not have faith that Mr Engwirda will follow through with the other recommendations. Mr and Mrs Coombe think the tree assessor's recommendations achieve compromise and strike a good balance. However, they seek a special order in relation to Trees No. 5, the Golden Palms, as they state the row of Golden Canes constitutes 50% of the obstruction. They request that the Golden Cane Palm receive bi-annual, professional maintenance by removal of the tallest stems to reduce the height significantly.

25. [25]
    Mr Engwirda has not filed any additional material since the response was filed.

Findings of the Tribunal

26. [26]
    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. Mr and Mrs Coombe and Mr Engwirda are the registered owners of their respective properties and appropriate parties, and the trees are on Mr Engwirda’s property making Mr Engwirda the tree-keeper. As it is alleged (albeit disputed by Mr Engwirda) 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.^[31]
27. [27]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied Mr and Mrs Coombe have made a reasonable effort to reach agreement with Mr Engwirda, including lodging an application with the Dispute Resolution Centre and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues. Mr and Mrs Coombe have also given copies of the application to Mr Engwirda as required under s 63 of the Act.
28. [28]
    To the extent that is relevant to the concerns in this matter, I have considered the matters in ss 71 to 75 of the Act.
29. [29]
    The tribunal has put no weight on the reference to information about the impact on, or views of the neighbour Dr Pham. Dr Pham is not part of the application, and no statement has been provided by Dr Pham.
30. [30]
    In terms of whether Mr and Mrs Coombe’s land is affected by the tree as required under s 61 of the Act, it is noted that the application does not allege that the trees overhang and there was no evidence of any overhanging trees in the tree assessor’s report.  It is not alleged in the application that the trees have 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 of Mr and Mrs Combe. Mr and Mrs Coombe have stated in the most recent submissions that three trees are within 1.5 to 2 meter of pipe and could represent a root hazard to the pipelines in the future.  There is no independent evidence of this and no evidence that this is likely to occur within the next 12 months.
31. [31]
    As such,  the tribunal does not accept that it is likely any of the subject trees will cause serious damage to the land or property on the land within 12 months and the sole issue to determine is whether the trees are a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land pursuant to section 46(a)(ii)(C) of the Act. Mr and Mrs Coombe 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 Mr Engwirda.
32. [32]
    Mr and Mrs Coombe also raised that the red fruit clusters on the Alexander Palms are causing a substantial, ongoing and unreasonable interference with their use and enjoyment of their land due to attracting vermin and birds who are regurgitate the seeds in and around the pools, on paths, deck, chairs, tables, back gardens, railings, resulting in clogging of the pool filter and increased and regular cleaning to remove the vomited seeds and stains. Mr and Mrs Coombe have not however provided any evidence to support that this issue is substantial, ongoing or unreasonable. The tree assessor also did not observe this to be an issue and Mr and Mrs Coombe have stated that Mr Engwirda has now voluntarily removed these trees. Accordingly the tribunal is not satisfied that the seeds on the Alexander Palms are causing a substantial, ongoing and unreasonable interference with the applicants’ use or enjoyment of their land or that there is any need for an order in relation to the Alexander Palms.
33. [33]
    As such the only issue to be determined is whether the other subject trees are causing a substantial, ongoing unreasonable interference with their use and enjoyment of Mr and Mrs Coombe’s land due to the subject trees severely obstructing a view which existed when they took possession of their land.

Was there a view that existed when Mr and Mrs Coombe took possession of their land?

34. [34]
    While there may be some dispute between the parties as to the extent/quality of the views that existed when Mr and Mrs Coombe took possession of the property in 2015, it appears uncontested based on the photographs provided by both parties that a view of the Gold Coast skyline and some water views existed at the time of purchase. 
35. [35]
    The views are from the rear verandah and the tree assessor’s report confirms that view is to the east and northeast overlooking Mermaid Water to Mermaid Beach and Miami beach.^[32] The applicants state that the views were actually more substantial than stated in the tree assessor’s report and overlooks Robina Waters, Mermaid Waters, Mermaid Beach, Miami beach and headland, Burleigh Waters and North Burleigh. They have not however provided any independent evidence to support this.
36. [36]
    Accordingly while the tribunal is satisfied, to the requisite standard, the views from the applicants’ home existed when the applicants took possession of their land, across Mermaid Water to Mermaid Beach and Miami Beach, the tribunal cannot be satisfied the views were as extensive as asserted by the applicants.
37. [37]
    Given the nature of the views, and applying the principles spelt out by the New South Wales Land and Environment Court in Tenacity Consulting v Warringah Council, the tribunal accepts that it is reasonable to take steps to preserve the views.

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

38. [38]
    While the tribunal accepts that the photographs provided by the applicant are not direct comparisons as they are from slightly different angles and location, based on the photographs provided by both parties (but primarily the applicants), it is clear that the subject trees do obstruct a considerable portion of the skyline views. This is consistent with the findings in the tree assessor’s report. Accordingly the tribunal is satisfied taking into account the totality of the evidence that combined trees 1-6 as noted in the tree assessor’s report (the Ivory Curl, Golden Cane, Cheese tree, Lilly Pilly and Fishtail Palm) cause a severe obstruction to the view that existed at the time Mr and Mrs Coombe purchased their property. The tree assessor’s report noted the trees will continue to grow, which will increase the severity of the obstruction.
39. [39]
    Mr and Mrs Coombe have raised that in addition to the trees considered by the tree assessor, two additional trees, being two Waterhousea floribunda should be removed due to the potential impact on the views. Mr and Mrs Coombe acknowledge that these two trees are not currently obstructing the view, but they assert that the trees will continue to grow to be very large and will obscure the same area of view currently being lost within a short time. They note that these trees are the same species as Tree No. 2 which was recommended to be removed.
40. [40]
    The applicants have however provided no independent evidence to support their claim that these trees will obscure the views within the next 12 months. The tree assessor’s report completed in July 2023 considered at that time any trees that either were affecting the view or that may affect the views within the next 12 months. The report did not identify these trees as concerning or likely to affect views within the next 12 months.
41. [41]
    Given there is no evidence that these two trees are currently impacting the views and as there is no independent evidence to support the applicants’ assertion that these trees will grow to an extent that they will obscure the view, or that if they do grow to obscure the view, that any obstruction will be severe, the tribunal cannot make any orders in relation to these two additional trees.

Severe, ongoing and unreasonable obstruction

42. [42]
    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.  In addition to evidencing that the trees are causing a severe obstruction, the applicants must also demonstrate the obstruction of the view is a substantial, ongoing and unreasonable one interfering with their enjoyment and use of the land.
43. [43]
    What constitutes substantial, ongoing, and unreasonable interference has been considered by the tribunal on many occasions. In Belcher v Sullivan,^[33] 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.

44. [44]
    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]

45. [45]
    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. In this case, the tribunal accepts that the obstruction of the views is severe in that it obscures a considerable portion of the skyline views. These are sought after views and are worth protecting.
46. [46]
    While no specific evidence is provided of any exact financial losses, it is accepted that the loss of a view of this sort would likely have a negative impact on the value of the property. Mr and Mrs Coombe have stated they purchased the house specifically because of the views and they have now changed the way they use the house and spend less time in some rooms, due to the loss of these views. Accordingly the tribunal accepts based on these factors that the obstruction of the view is substantial and unreasonable.
47. [47]
    The tree assessor has confirmed that these subject trees are all large trees, most of which will continue to grow and reductions management or pruning to contain the trees to restore the views are not viable, except for in relation to Tree No. 5. The tribunal is therefore satisfied that the obstruction caused by Tree No. 1, 2, 3 and 5 is ongoing. Tree No. 4 being the Cheese Tree has already been removed by Mr Engwirda, therefore there is no ongoing obstruction caused by that tree. The tree assessor’s report is that Tree No. 6 being the Alexander Palms would continue to grow and as such the impact on the view will be reduced as it grows and becomes higher than the skyline. In addition, Mr and Mrs Coombe have stated that these Alexander Palms have also been removed by Mr Engwirda and therefore there is no ongoing obstruction caused by Tree No. 6.
48. [48]
    Accordingly I find that the interference with the use and enjoyment of Mr and Mrs Coombe’s land caused by the obstruction by Trees 1, 2, 3 and 5 is substantial, ongoing and unreasonable.

What order, if any, should the Tribunal make in these proceedings?

49. [49]
    It is not sufficient just to demonstrate the trees are obstructing Mr and Mrs Coombe’s view as even if trees do interfere with a view, as Justice Alan Wilson, the then President of this tribunal, observed in Laing,^[36] s 66 of the Act 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.
50. [50]
    The tribunal is required to consider the matters in ss 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.^[37] 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.
51. [51]
    In relation to s 75, the tribunal has taken into account the size of the land and that the trees existed before the applicants acquired their land and purchased their house. Mr Engwirda has asserted that other trees are also blocking Mr and Mrs Coombe’s view, but there was no independent evidence of this, and this issue was not noted in the tree assessor report.  The only steps the applicants can take to prevent or minimise the interference is to request reduction or removal of the trees, which they have done. There is no evidence the trees have any impact on the protection or revegetation of a waterway or foreshore.
52. [52]
    In considering the specifics of the subject trees and the general matters in s 73 there is no evidence that they provide any specific contribution to the local ecosystem, protection or revegetation of a waterway or foreshore or soil stability or have any cultural or historical significance. The trees do however provide significant privacy and landscape amenity to Mr Engwirda. The respondent’s rear garden area was carefully landscaped and planted at its conception and the majority of the planting scheme works well for the surrounds creating an ambience that is a pleasure to be present in. The area contributes to the tree-keeper’s use and enjoyment of their property as well as providing necessary screening from the elevated houses to the rear.
53. [53]
    The tribunal have taken into account the location of the trees, the type of trees and there is no evidence that any consent or authorisation would be required under another act to remove or prune the trees. There is also no evidence of any risks associated with the trees in the event of a cyclone or other extreme weather event.
54. [54]
    It is clear from the tree assessor’s report that the impacts of past pruning and ongoing pruning not in compliance with the Australian standards has impacted the structure and health of Tree No. 2 and Tree No. 4. Ongoing pruning of the trees to alleviate the obstruction of the views, other than the Golden Cane, is not in line with Australian Standards.
55. [55]
    It is clear from the communications between the parties prior to the proceedings, and the continued difference of opinion as to the appropriate outcome, that there is a genuine dispute in this matter and the parties are unlikely to be able to agree to any compromise or ongoing maintenance schedule on their own. As the tribunal does not find that the obstruction caused by Tree No. 4 (Cheese Tree) or Tree No. 6 (Alexander Palms) is substantial, ongoing and unreasonable, it is not appropriate for the tribunal to make any orders in relation to these trees.  The applicants have not requested any orders in relation to the Alexander Palms and the tree assessor’s report recommended no works in relation to these trees. In relation to the Cheese Tree, Mr and Mrs Coombe have requested an order that Mr Engwirda grind the roots of the tree. While the tribunal has considered s 68 of the Act which allows the tribunal to make an order even if the tree has been completely removed, it is not considered appropriated to do so in this case where the tree is no longer causing an unreasonable interference.
56. [56]
    While it may be a prudent step for Mr Engwirda to take to grind or poison the roots to ensure the tree does not regrow given the recommendations in the report that it was unsuitable for the environment, there is no evidence that the tree would cause any inference with Mr and Mrs Coombe’s use in the short-term future if the roots were not ground. Therefore it is not appropriate for the tribunal to make orders as requested by the applicants.
57. [57]
    In relation to Tree No. 1 (Ivory Curl), the tree assessor’s report recommends that no works be undertaken. Mr and Mrs Coombe’s material states that  they largely agreed with the report and the compromise it contained and they have not made any specifics request for orders in relation to Tree No. 1. Based on the findings in the report, the tribunal does not consider it appropriate to make orders in relation to this tree. While it may have some impact on the views, this is a health tree, and the substantial nature of the obstruction is largely reduced by the removal of the surrounding Weeping Lilly Pilly, Clustering Fishtail Palm, Cheese Tree and Alexander Palms and the reduction of the height of the golden canes.
58. [58]
    In relation to the remainder of the trees, there is some information from the applicant which confirms that in March 2024 Mr Engwirda eliminated several of the very tallest stems of Tree No. 5 (clusters of Golden Cane Palms) and removed Tree No. 4. (Cheese tree) as recommended and Tree No. 6, notwithstanding the tree assessor report did not require this. As such there is some evidence of an intention to comply, at least in part, with the tree assessor’s recommendation. As Mr Engwirda did not file any further material after the tree assessment report was completed and has had limited engagement in the proceedings since the report was filed,  it is difficult to know what his current intention is in relation to Tree No. 2 and 3 and the ongoing maintenance of Tree No. 5 in light of the recommendations in the report to remove Tree No. 2 and 3 and conduct yearly pruning of the Golden Cane Palm.
59. [59]
    Taking into consideration the whole of the evidence and weighing the matters in sections 72, 73, and 75 of the Act, I am persuaded orders for the removal of Tree No. 2 and 3 and the yearly reduction in height of the Golden Cane Palm achieves an appropriate balance between the relevant interests of the parties. The tribunal has taken into account s 72 of the Act that a living tree should not be removed unless the issues cannot otherwise be satisfactorily resolved. However, noting the finding in the trees assessor’s report that Tree No. 2 and 3 do not have the capacity to have height reduction procedures that conform to Australian pruning standards and the previous repeated lopping of Tree No. 2 has resulted in this tree having very poor structure, I am satisfied that reduction management is not possible for Tree No. 2 or 3. As such there is no other way to satisfactorily resolve the issue other than the removal of Tree No. 2 and 3.
60. [60]
    Based on the tree assessor’s report, I am satisfied that  pruning of the Gold Cane Palms can be achieved to reduce the height and thereby reduce the interference. The tree assessor’s report notes that Golden Cane Palms generally grow with three distinct layers that can be cyclically pruned to reduce height. The tallest stems can be removed which reduces the overall height. The tribunal finds that given the impact of the Golden Cane palms on the view and as the palm will continue to grow, in line with the tree assessor’s report, the tribunal agrees that it is necessary to make yearly maintenance orders.
61. [61]
    The responsibility for ensuring a tree does not cause an interference with a neighbour’s property is the responsibility of Mr Engwirda as the tree-keeper. Accordingly it is appropriate that any costs associated with the orders are to be borne by Mr Engwirda.
62. [62]
    Given the ongoing dispute between the parties the tribunal will make orders to ensure any necessary access can be obtained to conduct the work and that should Mr Engwirda fail to conduct the work, Mr and Mrs Coombe will be authorised to do so and can seek the costs from Mr Engwirda.
63. [63]
    The tribunal has considered whether an order should be made under s 69 for  replacement trees to address Mr Engwirda’s privacy concerns, but in line with the recommendations of the tree assessor’s report, the tribunal does not consider it necessary to make such an order. The tree assessor noted that the selected removal and thinning as recommended in the report provided a good balance between mitigating the obstruction and restoring views and still providing necessary privacy for the respondent. Further, the report notes that the extent of shrubs and plants remaining will negate the effect of their removal, meaning replacement plants were not required.
64. [64]
    The starting point for costs is that each party must bear their own costs.^[38] However, the tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.^[39] The applicants are not seeking costs and in the circumstance of this matter, the tribunal is not satisfied that the interests of justice require the tribunal to sway from the ordinary position that each party bear their own costs and accordingly the tribunal does not make any order in relation to costs.

Orders

65. [65]
    The tribunal makes the following orders:

1. Within 60 days of the date of the decision, being on or before 16 September 2025, Benjamin James Engwirda must, at his own cost undertake the complete removal and stump grinding of the Waterhousea floribuna (Weeping Lilly Pilly) and the Caroyita Mitis (Clustering Fishtail Palm), identified as trees number 2 and 3 in the Tree Assessor’s report conducted by Steven Richards dated 14 July 2023.
2. The work in order 1 must be performed by either a tree lopper with current public liability and work cover insurances or a minimum Australian Qualifications Framework level three (3) qualified arborist with the same insurances.
3. Benjamin James Engwirda is to arrange pruning to the Dypsis Lutescens (Golden Cane clump) that runs along the western boundary of the respondent’s property, identified as tree number 5 in the Tree Assessor’s report conducted by Steven Richards dated 14 July 2023, to remove the tallest stems to reduce the height of the tree.
4. The work in order 3 is to occur:
   1. initially by 16 September 2025 and thereafter on a yearly basis between 1 July and 31 August each year.
   2. by an Australian Qualified Framework level 3 (or higher) arborist with relevant public liability and work cover insurance cover; and
   3. at Mr Engwirda’s cost.
5. Any tree lopper or arborist engaged by Mr Engwirda shall be entitled to enter Mr and Mrs Coombe’s land to undertake the work in order 1 and 3, subject to providing 72 hours’ notice of the work being done.
6. If the tree works detailed in Orders 1 and 3 are not completed by 17 September 2025, or by 1 September in years from 2026 to 2034, Mr and Mrs Coombe shall be entitled to have the work performed by a suitably qualified tree lopper or arborist with the appropriate public liability and work cover insurance.
7. Any tree lopper or arborist engaged by Mr and Mrs Coombe in line with order 6 shall be entitled to enter Mr Engwirda’s land to conduct the work, subject to Mr and Mrs Coombe providing 72 hours’ notice of the work being done.
8. If Mr and Mrs Coombe carry out the work in default of it being done by Mr Engwirda, the costs incurred by Mr and Mrs Coombe in engaging a tree lopper and/or arborist to do the work, shall be recoverable from Mr Engwirda as a debt without further notice being required to be given.
9. These orders remain in force and effect for a period of 10 years from the date hereof.