Lestone v Prytz[2025] QCAT 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr and Mrs Lestone and Mr and Mrs Prytz share a common boundary.  There are nine trees on the Prytzs’ land near the fence line between the Prytzs’ home and the street and more trees on other parts of the Prytzs’ land between the Prytzs’ home and the street.
2. [2]
   The Application, under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’),^[1] sought orders that the Prytzs:

   1. remove the trees or remove or prune the branches of the trees;
   2. remove the trees in their front yard for a permanent reinstatement of the views the Lestones had when they purchased the property. Specifically, all trees that grow to a height of three metres or more and are further than four metres from the front of the neighbour’s house (to allow him to retain his privacy) be permanently removed and that no new tree be planted that has a potential to obstruct the Lestones’ views;
   3. prune overhanging branches along the length of the parties’ northern boundary.
3. [3]
   The Lestones clarified^[2] that the orders sought were the removal of the Prytzs’ trees in their front yard (i.e. to the west of their house) for a permanent reinstatement of the views they had when they purchased the property. Specifically, they sought all trees that grow to a height of three metres or more and whose canopies are further than four metres from the western end of their house (to allow the Prytzs to retain their privacy) be permanently removed and that no new trees be planted (or allowed to grow) that have the potential to obstruct the Lestones’ views. Further, they sought that when conditions set out in the ND Act are reached the Prytzs be required to prune overhanging branches upon a written request from the Lestones.
4. [4]
   The Lestones subsequently sought orders for the removal of all trees which obstruct or will obstruct the view in time (as determined by an independent arborist charged with the removal) with or without replacement by suitable trees as detailed in the orders sought in the Statement of Evidence.^[3]
5. [5]
   The Tribunal appointed a Tree Assessor, who provided a report (‘the Report’).^[4] The Tree Assessor included a table in the Report, which sets out his findings in relation to the trees he inspected (‘the Trees’).  The added emphasis in the table below is mine.

6. [6]
   As is not unusual in proceedings of this nature, there have been various formulations of the orders sought.
7. [7]
   The Lestones clarified at the hearing that the orders sought^[5] are the Prytzs:

   1. remove the trees i.e. Tree 1-Tree 9 identified in the Report;
   2. remove all trees higher than three metres or with the potential to grow higher than three metres in the area labelled G1 in the Report with the exception of any tree whose canopy extends no further than four metres from the western side of the Prytzs’ house;
   3. are not to plant any trees with potential to exceed two metres in height along the common boundary or exceed three metres in the area labelled G1 in the Report except for any tree whose canopy extends no further than four metres from the western side of the Prytzs’ house.
8. [8]
   The Prytzs deny that the Lestones are entitled to the orders sought. They say that the Trees do not severely obstruct the views and even if they did, they do not obstruct the views in an unreasonable way. Their Response^[6] sought various orders other than the Application be dismissed. The Tribunal’s records do not show that a filing fee was paid therefore any ‘counter-claim’ is not properly before the Tribunal.^[7] I consider it as a response only. 
9. [9]
   In any event, such orders were not pursued at the final hearing and there is considerable doubt that the Tribunal has power to make orders e.g. in relation to allegations of defamation and trespass.
10. [10]
    The final oral hearing commenced on 11 March 2024 but, for reasons referred to below, was adjourned to 5 June 2024. The delay in finalising this proceeding since the oral hearing concluded is extremely regrettable and relates to resourcing issues. 
11. [11]
    It is clear to me that the relationship between the Lestones and the Prytzs is, or has become, an acrimonious one. It is regrettable that the time required for this dispute to progress in the Tribunal, due to resource constraints and the way the parties have conducted the proceeding, including an application to strike out the proceeding, has likely deepened the division between them.
12. [12]
    The Lestones’ land is at a higher elevation than the Prytzs’ land. The Lestones’ double story house with three patios overlooks the Prytzs’ land. 
13. [13]
    The photographic evidence shows, and it is not in dispute, that the Trees were not in existence at the time that the Lestones acquired their land. 
14. [14]
    The Tree Assessor notes that, at that time, the Trees were not well managed.^[8]
15. [15]
    Ultimately, neither party requested the Tree Assessor to attend the final hearing to be questioned on the Report.
16. [16]
    The Tree Assessor noted that at the time of inspection Trees 4 and 5 extended into the Lestones’ land and that the Prytzs agreed to prune the branches back to the fence line.  The Tree Assessor does not raise any structural issues with doing so. The recommendation was that no work was recommended at this stage because the main issue in dispute was whether the Lestones’ claimed right to a view was supported at law. 
17. [17]
    The Lestones say that all the trees above four metres listed as Tree 1 – Tree 9 and virtually all the trees in G1 significantly impact their view and that Tree 6 will ultimately impact the view if not removed.^[9] The Lestones gave evidence, and I accept, that by December 2023 Tree 6 had grown to approximately five metres tall and appeared to still be growing. 
18. [18]
    At the hearing the Prytzs gave evidence, and I accept, that they have:

    1. trimmed the branches to Trees 4 and 5 to the extent of the encroachment on an annual basis since the Application commenced.
    2. started to remove weed trees along the boundary and in G1.
    3. removed cadagi and pepper trees in G1 and say that it is a continuous process to pull out undesirable species.
19. [19]
    The Prytzs say that there would be an increased risk of erosion if the trees near the retaining wall were removed. This is supported by some documentary evidence from a tree contractor dated 10 November 2020.^[10] The author of the letter says that the trees are in good health and did not need to be removed. The author did not give a statement of evidence or attend at the final hearing to confirm his evidence and be questioned.  The letter does not indicate the author’s qualifications or extent of experience. To the extent that the Report recommends that certain of the Trees be removed I prefer the evidence of the Tree Assessor, who has relevant qualifications to the evidence in the letter. The Prytzs have accepted the Tree Assessor’s qualifications.^[11] 
20. [20]
    The Prytzs say, and I accept, that they started growing the Trees to prevent erosion, to provide privacy from the Lestones’ property and from the street and to provide shade to their house from the hot western sun.
21. [21]
    The Prytzs dispute the maximum heights sought to be imposed for replacement trees.  They say that this would fall well below sitting position on the upper level. They say it would limit replacement tree height to below the height of the fence on top of the retaining wall, well below the floor level of the ‘upstairs verandahs’ and in respect of replacement trees in G1 this would result in trees being below the Lestones’ ground level. 
22. [22]
    The Prytzs attached an image which includes contour lines.^[12] I accept that the image demonstrates that there is an elevation difference between the Lestones’ land and the Prytzs’ land and an elevation difference between the lowest and highest part of the area described as G1 and a further elevation difference to the common boundary.  Although the document appears to have a scale, due to the resolution of the image, I have insufficient evidence before me to allow me to interpret the contour lines to be able to make a finding of the elevation differences. Further, although there were some estimates given, neither party lead any evidence of actual measurements of the height of the floor level or the patio railing level of the upper level of the Lestones’ home. 
23. [23]
    The Lestones initially contended that although there had been no damage to their land or property that the Prytzs’ trees were likely to cause serious damage to the land or any property on the land within the next 12 months. They point to the likelihood of damage during a cyclone from flying debris or the trees falling due to wind or soaked ground. The Tree Assessor did not give any evidence as to the likelihood of such damage. The Prytzs deny such claims and point to the fact that more than three years have passed since the Application was filed and that in January 2024 Cyclone Kirrily crossed to the north of Townsville and no damage to land or property has been caused by the trees on their land. This claim was not advanced at the hearing. I do not consider it further.
24. [24]
    The Lestones also contended that the trees are causing substantial, ongoing and unreasonable interference with their use and enjoyment of their land. They primarily rely upon a severe obstruction of a view. 
25. [25]
    Initially they also claimed the interference is an obstruction of sunlight. The Lestones filed photographs which they claimed showed obstruction of sunlight or shading by the Trees. At the oral hearing the Lestones clarified they were not claiming that the obstruction of sunlight is severe.^[13] I do not consider that issue further. 
26. [26]
    They do not claim interference on any other basis e.g. excessive leaf litter.
27. [27]
    The Lestones, as applicants, bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act.

Have the pre-requisites of the ND Act been satisfied?

28. [28]
    I am satisfied that the Lestones have 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.
29. [29]
    There is some evidence that:

    1. Mr Lestone spoke to the Prytzs on or about 1 June 2020 to seek to resolve the claimed issues with the trees and wrote to the Prytzs on 4 June 2020.^[14] 
    2. subsequently the Lestones sought to mediate the dispute, but the Prytzs declined to participate.^[15]
30. [30]
    The Lestones contend that no consent or other authorisation from a government authority is needed to carry out work on the Trees. The Prytzs do not take issue with this contention. There is some evidence that the Lestones have served a copy of the Application on and engaged with the Townsville City Council (‘Council’) in relation to the Trees.^[16] The Council have not sought to be heard in relation to the Trees.

Should an order be made?

31. [31]
    I am satisfied, on the balance of probabilities, that an order is appropriate for the reasons set out below. 
32. [32]
    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.

33. [33]
    Land is ‘affected by a tree’ at a particular time if branches 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]
34. [34]
    In accordance with the Tribunal’s directions the Lestones filed copies of title searches and a registered plan seeking to identify the location of each tree the subject of the Application and identify the species of trees.^[21] The trees and some of the species were clarified in the Report.
35. [35]
    I am satisfied that:

    1. the trees identified in the Report are on land recorded in the freehold land register.^[22]
    2. the Application can be made in relation to two or more trees.^[23]
    3. Mr and Mrs Prytz are tree-keepers for the Trees.^[24]
    4. Mr and Mrs Lestone are neighbours in relation to the Trees.^[25]
36. [36]
    On the evidence before me I find that the Lestones’ land is affected by the Trees 4 and 5, which are identified as at the time of the Application having branches of the trees overhang their land at a height of more than 2.5 metres and the two trees are situated on the Prytzs’ adjoining land. 
37. [37]
    For the reasons set out below, I find that the Lestones’ land is also affected by the other Trees described in the Report.
38. [38]
    The Tribunal has broad powers to make an order it considers appropriate about a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Lestones’ use of their land.^[26]
39. [39]
    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.^[27]
40. [40]
    Under the ND Act the tree-keeper is responsible for 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.^[28] Those obligations are in place whether or not the Tribunal makes an order.
41. [41]
    The primary consideration under the ND Act is the safety of any person.^[29] There is no persuasive evidence before me that anyone’s safety is at risk from the Trees.

Substantial, ongoing and unreasonable interference

42. [42]
    I am satisfied, on the balance of probability, that the Trees cause substantial, ongoing and unreasonable interference.
43. [43]
    The Lestones say that the Trees obstruct sea breezes and are so tall that they are claustrophobic, which impacts their enjoyment of their home.
44. [44]
    They primarily rely upon obstruction of their view as a substantial, ongoing and unreasonable interference with their use and enjoyment of their property. They say that ‘there is now virtually no view from the first floor living area inside our house and the same applies to our most commonly used outdoor areas and all the ground floor.’^[30] The Lestones do not seek to restore their previous views from the ground floor.
45. [45]
    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.^[31] The trees must also be at least 2.5 m above the ground.^[32]
46. [46]
    The Tribunal has previously found that a severe obstruction is one that must be considerable.^[33]
47. [47]
    I accept that the Report demonstrates that each of the Trees are at least 2.5 metres above the ground.
48. [48]
    Whether or not the obstruction by the Trees of the pre-existing view is severe for the purposes of the ND Act is a finding, which I am required to make, based upon all the evidence before me, including any relevant evidence in the Report.
49. [49]
    I note that the Report states that:^[34]

During my assessment it was clear that the trees as a whole do significantly impede the applicants views from their home.

View

50. [50]
    It is well established that in Australia, there is no general right to a view.^[35]
51. [51]
    The ND Act creates a limited exception to that principle. Therefore, the right to a view must be construed according to the terms of the Act.^[36]
52. [52]
    In Laing & Anor v Kokkinos & Anor (No 2)^[37] the then President, Wilson J said:

37. [37]
    The meaning of ‘severe obstruction’ has been judicially considered in the context of not dissimilar legislation governing neighbourhood disputes in New South Wales… In Haindl v Daisch.. the New South Wales Land and Environment Court (‘LEC’) observed that the assessment of severity involves both quantitative and qualitative elements… The LEC decision gave the following examples:

[If the] view comprises predominantly an unrelieved outlook towards unattractive and blank-walled built form and there is a 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 degrees 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…

38. [38]
    In determining the nature of the view that is obstructed, some assistance is also provided by using the planning principle in the earlier LEC decision of Tenacity Consulting v Warringah... In that decision, Roseth SC adopted a four step process for assessing the nature of the view with which there was interference caused by development… For the purpose of proceedings in the Tribunal’s Neighbourhood Disputes jurisdiction, only the first three tests are relevant.
39. [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. [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. [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. [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. [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 when the Applicants took possession of the property?

53. [53]
    I find that panoramic views as shown in photos 1 and 2 to the Statement of Mr Campbell^[38] existed from patio 2 at the time the Lestones took possession. I accept similar views existed from the living areas of the upper level and patio 1 and 3.
54. [54]
    The Lestones say that they had an unobstructed panoramic view of the coastline from Cape Cleveland  in the north east across the bay including to Magnetic Island, the city skyline, at night the city lights, to Castle Hill, the coastal flats, and in the foreground the leafy suburb of Wulguru as well as the Mt Stuart foothills to the north west, from their upper level kitchen, living area and the three outdoor patios when they purchased the house and now the view from their kitchen, living room and centre patio is completely obstructed by the Trees.^[39] They say that the views from their rear and front patios are also obstructed by the Trees.
55. [55]
    The Prytzs dispute the extent of the views claimed and the extent to which the views have been obstructed.
56. [56]
    The Appeal Tribunal has previously found:^[40]

A view is a single view with various elements contained within, not multiple views requiring separate analysis. A dwelling may have multiple viewing locations from each of which there is a different view. When assessing a view, it is necessary to consider the totality of what can be seen from the viewing locations from the dwelling rather than segmenting those views.

57. [57]
    Mr Campbell, the original owner of the house from whom the Lestones purchased, gave written evidence and was available to confirm his evidence and be questioned at the hearing as he gave oral evidence by video link from the Lestones’ home. His evidence was, and I accept, that:

    1. he designed the house to take in the panoramic views.^[41] 
    2. he visited the house on 24 September 2023 and the city and bay views were ‘mostly lost from living rooms and adjoining patio due to the amount of tall trees on the adjoining block’.
    3. at the time the Lestones purchased there were views of the bay, Magnetic Island and the city lights from the ‘living room patio’^[42] and ‘there were no trees on the block of land below that were taking away the panoramic views’. He could not specifically recall whether there was a view to Cape Cleveland.
    4. photographs 1 and 2 attached to his statement showed the views prior to sale from the centre patio and photograph 4 showed the view from a similar position from the centre patio on 24 September 2023.
58. [58]
    There is a photograph in evidence before me, which I accept, shows the views from patio 3 at about the time the Lestones took possession.^[43] There is a photograph in evidence before me, which I accept, shows the views from patio 3 in February 2024.^[44] 
59. [59]
    There is a photograph in evidence before me, which I accept, shows the views from the top of the stairs between the dining and lounge rooms which shows the view from the living areas looking easterly at about the time the Lestones took possession.^[45] It supports a finding of a panoramic view with possibly one tree near the eastern window of the family room. There is a photograph in evidence before me, which I accept, from a similar location in February 2024.^[46] The view from the living areas to the east and through the central patio is a green screen.
60. [60]
    The Prytzs contend, and I accept, that the views from patio 3 to the east are impacted by their house and by trees on council land to the east.^[47]
61. [61]
    The view from the upper floor of the Lestones’ home was an almost completely unobstructed view^[48] of the coastline, bay, Magnetic Island, city (including city lights), coastal flats and the leafy suburb of Wulguru as well as the Mt Stuart foothills to the northwest.

Where was the view seen? What is the reasonableness of protecting the view?

62. [62]
    The Lestones say that they had an unobstructed panoramic view from their kitchen, living area, main bedroom and the three outdoor patios on the upper floor. 
63. [63]
    The Lestones say, and I accept, that the kitchen, dining, living and main bedroom are located between and behind patios 2 and 3.^[49] A schematic floor plan is in evidence before me, which supports this evidence.^[50] They say the obstruction to the view from these areas is severe whereas the view was originally unobstructed. They say patio 1 leads off the third and fourth bedroom, which are only used occasionally as guest rooms.^[51] They deny that the view from patio 1 is unaffected by the trees with views to the northeast being impacted.
64. [64]
    I accept that a patio is usually regarded as a living area and that views from such areas are more significant than views from bedrooms or service areas, except kitchens because of the amount of time people usually spend in and around the kitchen.
65. [65]
    The Lestones clarified at the hearing that they seek to protect sitting views because there were no trees on the Prytzs’ land, when they purchased their home, so they had a sitting as well as standing view. They say that:

    1. they used to enjoy sitting on their patios and appreciating the panoramic views and the morning winter sun;
    2. the Trees are now so tall that they are deprived of that use and enjoyment of their property; 
    3. the screen formed by the Trees blocks breezes, light and the airy feeling they previously enjoyed;
    4. they no longer enjoy spending time on their patios because they feel claustrophobic or ‘isolated and trapped behind a green curtain’^[52] and it has taken a toll on their physical and mental health;
    5. because Mr Lestone is now retired, and Mrs Lestone works part-time they spend more time at their home so the impact on their use and enjoyment of their home is more substantial.
66. [66]
    The Prytzs relied upon some documentary evidence that shows that at the Townsville airport ‘the mean morning wind is primarily from the south-east’^[53] and ‘the mean afternoon wind is from slightly east of north-east’.^[54] They say that ‘while there will be some blocking of the wind by the Respondent’s trees, the majority is caused by Respondent’s house.’^[55]  I accept that the existence of the Trees, particularly Tree 1 – Tree 9, and their proximity to the Lestones’ home is likely to contribute to airflow reduction.
67. [67]
    The view sought to be protected is a sitting view across the side boundary of the Lestones’ and Prytzs’ lands. 
68. [68]
    The then Chief Justice Holmes, referring to the tests in Tenacity Consulting v Warringah Council^[56] and Laing v Kokkinos (No 2),^[57] with whom the other members of the Court of Appeal agreed, when considering similar provisions under the Body Corporate and Community Management Act 1997 (Qld), stated:^[58]

I should not like to be taken to endorse the application of fixed multi-step tests from other jurisdictions in these matters. However, there is nothing remarkable in the broader proposition that regard may properly be had to both the qualitative and quantitative impacts of a contentious activity or structure, in order to determine whether it does constitute an interference and, if so, whether it is unreasonable.

69. [69]
    Whether it is an unreasonable interference and whether it is reasonable to restore such views depends upon the facts.^[59] 
70. [70]
    A panoramic view of the city skyline and city lights, coastline and bay views is a desirable and generally valuable view particularly from a living room, kitchen and patios off the living room and kitchen. The Appeal Tribunal has recognised that ‘such view is generally highly valued as adding a degree of amenity over and above the similar lots without such a view.’^[60] 
71. [71]
    Mr Caleo’s written evidence is, and I accept, that the Lestones’ home was constructed to maximise the northerly aspects from the living areas and adjoining outdoor areas and that homes with north facing views command a premium.^[61]  I refer to Mr Caleo’s evidence in greater detail below.

What is the extent of the view that is lost by the trees on the adjoining property? Are the trees causing a severe obstruction of that view?

72. [72]
    I find that the obstruction by the Trees of the view, when taken as a whole, which existed at the time the Lestones took possession, is severe because the obstruction of the view is considerable.
73. [73]
    I accept the Lestones’ evidence that they have lost enjoyment of their property, because they no longer have a panoramic view from their living room, kitchen and three patios.
74. [74]
    The Appeal Tribunal has previously found:^[62]

The consideration of whether an obstruction of a view is severe involves both a quantitative and a qualitative evaluation.

75. [75]
    The Court of Appeal in Miles & Anor v Gough & Ors^[63] recognised that this requires an evaluation of:

not only the extent to which view is lost but the nature and value of the view lost.

76. [76]
    The Prytzs say the balcony facing west^[64] is not impacted and the balconies facing north-west^[65] and north and west^[66] are partially impacted. The Prytzs deny that the obstruction to the view is severe when the view from the house is taken as a whole because views remain from the ‘western’ patio^[67] and there are still some views to the east from the ‘central’ and ‘eastern’^[68] patios. They say the views from the patios are impacted in what is not an unreasonable way.
77. [77]
    The Lestones particularly refer to their loss of views of the city and their previous enjoyment of them. Their evidence is that they paid a premium for them. The Prytzs say that such views have not been completely lost because the western facing balcony still has such a view, and the other balconies afford some view.
78. [78]
    Mr Campbell gave evidence, and I accept, that on the day of the hearing:

    1. from the rear patio there was now only a filtered view of the city;
    2. from the front patio there was about 50% - 60% of the prior view because you could still look down the street;
    3. the views from the living room were the same as from the centre patio, which were completely or almost completely obstructed.
79. [79]
    During the oral hearing, Mr Prytz conceded that he had not been on the upper floor of the Lestones’ home. As to the extent of the loss of the view, I prefer the evidence of the Lestones and, in particular, Mr Campbell. Each of the Lestones’ witnesses has been on the upper floor of the Lestones’ home. Their evidence is consistent with the photographic evidence.
80. [80]
    In Tenacity Consulting v Warringah^[69] a qualitative scale for assessment of the extent of impact of negligible, minor, moderate, severe or devastating was suggested.
81. [81]
    I find, having regard particularly to Mr Campbell’s evidence, that the loss of views caused by the Trees from the centre patio and living areas is qualitatively ‘devastating’.^[70] The loss of views caused by the Trees from the front patio is minor to moderate and the loss of views caused by the Trees from the rear patio is moderate to severe. 
82. [82]
    I find that qualitatively and quantitatively, when taken as a whole, the obstruction of the previously available panoramic views from the upper level of the Lestones’ property caused by the Trees is severe.
83. [83]
    If I am satisfied that a view from their dwelling which existed when the Lestones took possession has been severely obstructed by trees, 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.

If so, 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. Is the interference as a result of the obstruction substantial, ongoing and unreasonable?

84. [84]
    I find that the interference with the use and enjoyment of the Lestones’ land caused by the obstruction by the Trees is substantial, ongoing and unreasonable.
85. [85]
    The Appeal Tribunal has previously found that:^[71]

the use of the conjunctive in s 66 (2)(b)(ii) requires all three requirements to be present for interference to be established. The words “substantial”, “ongoing” and “unreasonable” are not defined in the NDA and therefore carry their ordinary meaning.  Substantial means “of considerable importance, size, or worth”.  Ongoing means “continuing; still in progress”. Unreasonable means “beyond the limits of acceptability or fairness”.  Interference in order to satisfy s 66 (2)(b)(ii), must therefore be considerable and beyond the limits of acceptability.

86. [86]
    The Tree Assessor’s evidence is essentially that:

    1. the Trees will continue to grow taller;
    2. lopping will have an adverse effect on the Trees and is not recommended; and
    3. selective removal of some of the Trees, whilst initially restoring some of the previous view, is likely to broaden the canopies of the remaining Trees, which will obstruct the Lestones’ view. 
87. [87]
    For these reasons, I accept that the obstruction is an ongoing interference with the Lestones’ use and enjoyment of their land.
88. [88]
    Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference, I may consider whether there is anything other than the tree which has contributed or is contributing to the interference and any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference and whether the tree existed before the neighbour acquired the land.^[72]  
89. [89]
    The evidence is that the Trees did not exist at the time the Lestones acquired their land. This is a factor in favour of making an order. Other than the Prytzs’ house, which is likely to obstruct part of the previous panoramic view, there is no evidence upon which I could rely to find that anything other than the Trees has contributed or is contributing to the interference. This is a factor in favour of making an order.
90. [90]
    As observed in Ortlipp & Anor v Bowyer & Anor:^[73]

Having decided that the obstruction of the view is a severe one, it does not automatically follow that the interference with the use and enjoyment of the land is substantial, ongoing and unreasonable. In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford, the Appeal Tribunal identified a number of factors relevant to determining whether an interference is substantial, ongoing and unreasonable for the purposes of s 66(2)(b)(ii) of the ND Act, namely:

1.  What is the nature and extent of the harm or interference said to be caused by the tree?

2.  Is the neighbour abnormally sensitive to the harm or interference said to be caused by the tree?

3.  Have all reasonable steps been taken by the tree keeper to minimise the harm or interference said to be caused by the tree?

4.  What is the type and extent of damage claimed to have been suffered by the neighbour?

91. [91]
    I have earlier considered the nature and extent of the harm or interference caused by the Trees in finding that the previous panoramic views have been severely obstructed.
92. [92]
    There is no evidence, upon which I could rely to find, that the Lestones are hypersensitive or abnormally sensitive to the Prytzs’ trees or the interference caused by the Trees. 
93. [93]
    There is little evidence as to any steps the Prytzs have taken to minimise the harm or interference by the Trees claimed by the Lestones. The evidence is that the Prytzs have undertaken annual maintenance since the proceedings commenced but they have not trimmed the height.
94. [94]
    The Lestones say, and I accept, that each of the Trees, being classed by the Tree Assessor as juvenile or semi-matured, have the potential to grow even taller as they mature. They contend that a reasonable neighbour would have considered the likely height of the Trees in deciding to plant or how to maintain them and the impact on the adjoining owner’s view. They point to the Tribunal’s decision in Rice v Livingstone^[74] where the Tribunal found:

allowing the Bauhinia to grow to 11 metres one metre from the Rices’ boundary was not reasonable. Allowing the 3 camphor laurels, which are declared pests, to grow to 18 to 22 metres and constitute a substantial, ongoing interference with the use and enjoyment of the Rices’ land was not reasonable.

95. [95]
    Mr Lestone gave evidence that the floor level of their upper floor is about three metres above ground.  From the photographs in evidence before me Trees 1 – 9 are on or near the common boundary and their bases are at a somewhat lower elevation, noting there is a retaining wall, along or near the boundary, which appears to vary in height.  In relation Tree 1 – Tree 5 and Tree 7 – Tree 9, I find that it is not reasonable to plant or make or fail to make decisions in relation to maintenance of trees, which permit trees to grow to 7 – 12 metres when they are close to the boundary. The evidence is that Tree 6 was five metres tall by December 2023 and continuing to grow.
96. [96]
    The Lestones claim that the Trees are causing a substantial ongoing and unreasonable interference because the loss of the view from their first floor living area is severe and has caused a diminution in the value of their property.
97. [97]
    Mr Caleo, an experienced registered valuer, gave written evidence^[75] and was available to confirm his evidence and be questioned. His evidence is that the view is not significantly impacted by the Trees from the front patio. However, the primary view is from the living areas including the lounge, dining, kitchen and centre patio which is significantly impacted by the Trees. He assessed the diminution in value as more than 30%, which is significant both as a percentage and as a dollar amount.
98. [98]
    The Prytzs dispute the valuer’s evidence and sought to challenge his methodology, credibility and independence. I am not persuaded that Mr Caleo is not appropriately independent and credible. The Prytzs chose not to file their own independent evidence, despite being granted an adjournment to allow them to consider doing so. In the absence of competing independent expert evidence, there is no persuasive evidence before me that Mr Caleo’s methodology is not appropriate. I accept Mr Caleo’s evidence as to the diminution in value.
99. [99]
    The Appeal Tribunal in Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors^[76] when considering similar provisions under the Body Corporate and Community Management Act 1997 (Qld), stated:

Loss of value cannot be a loss of use or enjoyment of a lot. Evidence of diminution in value of a lot may be relevant to whether there has been an interference with use or enjoyment but such evidence cannot of itself support such a finding. Such evidence would, at best, be a factor that might be considered by a decision maker as relevant in determining whether there has been an unreasonable interference. The relevance will depend upon the facts and circumstances of each case.

100. [100]
     I accept that the diminution in value is relevant to the issue of whether the interference is unreasonable. In this case, the significant diminution supports a finding that the interference is unreasonable.
101. [101]
     The Prtyzs contend that if they had built their house further towards the street that their house would have obstructed the view to a similar extent as the Trees. They say that their decision as to the siting of their house was made prior to the ND Act and that they would have made a different decision if they had known then the provisions of the ND Act. They say that at the time they developed their land they had a right to develop it as they chose and that the ND Act is retrospectively impacting their decision. They say the ND Act ought not have retrospective application. 
102. [102]
     The Prytzs contend that given their land was vacant at the time of the Lestones’ purchase the Lestones could not have had an expectation that the views would be maintained in perpetuity. They built their home further back on the block because they assumed that a view of trees would be preferable to views of a home.
103. [103]
     The Tribunal has previously decided, and I accept, that the Tribunal has jurisdiction to hear and decide an application in relation to a view that existed prior to 1 November 2011 (i.e. the commencement of the ND Act) but did not exist after the commencement date of the ND Act.^[77] In Mahoney^[78] the then President considered the common law presumption against retrospective operation of legislation and relevant authorities. The then President stated:^[79]

Section 66 of the NDA is, in my view, of a similar kind and, on its face, Parliament intended that the Tribunal would have jurisdiction to make an order to prevent a severe obstruction of a view which existed when the applicant took possession of the land, even if that occurred before the commencement of the Act.

….

it simply invests the Tribunal with jurisdiction based upon facts and circumstances which were in operation before the NDA began. Further, as observed in Robertson v City of Nunawading:

There cannot, in any relevant sense, or perhaps in any sense, be a ‘right’ to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purposes of the principle [against retrospectivity].

There is another compelling reason to construe s 66 in this way, at least in the present context concerning views: the use of the phrase ‘… a view… that existed when the neighbour took possession of the land’ is, in the absence of any words in that part of the NDA suggesting that it only applies to parties who took possession after the Act came into effect, a strong indication that Parliament intended to allow a remedy to persons whose views existed in the past, pre-NDA, but had then been lost.

104. [104]
     For the reasons set out in Mahoney, I am satisfied that the Tribunal is not prevented from making an order under the ND Act due to the common law presumption against retrospective operation of legislation.
105. [105]
     The Prytzs have failed to maintain the Trees in compliance with the ND Act obligations since those obligations were imposed on them. Mr Lestone gave evidence that the Prytzs have taken no steps to minimise the impact of the Trees and during this proceeding the Prytzs have continued to plant trees and allowed self-seeded trees to grow and upgraded the watering system to the Trees. The Prytzs’ statement of evidence foreshadows the planting of further trees in the G1 area.^[80]
106. [106]
     There is no evidence as to any steps taken by the Lestones after the ND Act commenced up to June 2020.

Other considerations

107. [107]
     I am required to consider various matters including the contribution to amenity the Trees make to the Prytzs’ land, the local ecosystem, public amenity and privacy.^[81]
108. [108]
     The Report provides some evidence of the contribution the Trees make to the local ecosystem, biodiversity, and contribution that the Trees make to the natural landscape and the scenic value of the land/locality. 
109. [109]
     The Prytzs gave evidence of, and I accept:

     1. the contribution the Trees make to their privacy including screening a bright light on the Lestones’ house and as a screen from the water treatment plant across the street both visually and from noise of trucks visiting the plant.
     2. the contribution the Trees make to shading the house from the hot western sun, to their garden design and the micro-climate the Trees create.
110. [110]
     The Prytzs also gave evidence that the Trees afford some protection from damaging winds and cyclones. They say the Trees are likely to act together to intercept flying debris.^[82]
111. [111]
     As referred to earlier, they also gave evidence of concerns of erosion if the trees near the retaining wall were removed. The Lestones submit that there is a risk that the boundary retaining wall may be undermined if trees on the boundary are uprooted in a cyclone and there is heavy rain.^[83] They accept that the issue of erosion could be overcome by suitable replanting.^[84]
112. [112]
     As referred to earlier:

     1. 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.^[85]
     2. the Report provides some evidence of the likely impact on the Trees of pruning them. The Tree Assessor considered, and I accept, that lopping the trees to a desirable height was not viable as it will leave the Trees prone to failure due to lack of structural integrity in regrowth.
113. [113]
     Another factor is whether the species of tree is a pest or weed. The Tree Assessor highlights that a number of trees are weeds/pests. At the final hearing, the Prytzs gave evidence that they were in the process of removing such trees. As referred to earlier, the Report gives evidence, which I accept, that selective removal of some of the Trees may restore part of the previous view initially but due to canopy growth is likely to continue to obstruct the previous view.
114. [114]
     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.^[86]
115. [115]
     Other than as already referred to, there is no specific evidence as to these matters.

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

116. [116]
     To remedy or prevent ongoing interference with the Lestones’ use and enjoyment of their land, I am satisfied that an order to remove trees is appropriate because, regrettably I am satisfied that the issue of the severe obstruction of the view, which constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of the Lestones’ land cannot otherwise be satisfactorily resolved. It is also appropriate to order that suitable replacement trees may be planted to address potential erosion concerns and issues of privacy and protection from the western sun.
117. [117]
     The Tree Assessor recommended that Trees 1, 2, 8 and 9 ought to be removed. He noted that Trees 3, 7 and 8 had poor structure and that Trees 2 and 9 had average to poor structure. Tree 1 was identified as a weed. He also identified in the group of trees referred to as G1 that there were trees which he classified as weeds e.g. the Cadagi and Pepper Tree. Having regard to the definitions contained in the Report this supports a finding that those trees ought to be removed. 
118. [118]
     The Lestones are also seeking orders in relation to the maintenance of boundary trees to no more than two metres, so they are below their upper floor level and trees in G1, which were estimated at about one metre lower than the boundary trees, to a height of no more than three metres. As previously referred to the evidence as to relative elevation is limited. It is appropriate for the relative elevations to be determined by an arborist. 
119. [119]
     If the Prytzs incur the cost of an arborist performing work to plant replacement trees along the boundary in accordance with these orders, then the Lestones should contribute to the costs of those trees as they did not take steps to enforce their rights for quite some time after the ND Act came into force. The costs of removing and replacing trees would likely have increased over that time.  They also will likely benefit from the erosion protection and some degree of privacy such replacement trees will provide.

Human Rights Act 2019 (Qld)(‘HR Act’)

120. [120]
     The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.^[87] A human right may only be subjected to reasonable limitations.^[88] The parties, who were not legally represented, did not make any submissions in relation to the HR Act.
121. [121]
     In deciding this application:

     1. I am not acting as a public entity because I am not acting in an administrative capacity.^[89]
     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.^[90]
122. [122]
     I accept that this proceeding and the determination of it potentially impacts both parties’ rights to a fair hearing and I considered them. In conducting the hearing, I gave both parties the opportunity to give evidence and make submissions and to question witnesses for the other party. In coming to my decision, I have considered the oral submissions, oral evidence and the documents filed by both parties.^[91]
123. [123]
     I accept that these proceedings and my decision potentially impacts other rights, in particular property rights^[92] and the right to privacy and reputation.^[93] 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.^[94] Any limitation of the human rights is consistent with the objects of the Act^[95] and the objects of the QCAT Act (Qld).^[96]

Costs – thrown away

124. [124]
     I fix the costs thrown away by the adjournment in the amount of $776.98 (incl GST).
125. [125]
     On 11 March 2024, I granted leave to the Lestones to file Further Evidence^[97] and adjourned the hearing part heard to 5 June 2024 to allow the Prytzs time to respond to the evidence. I ordered that the Lestones were to pay the Prytzs’ costs thrown away by the adjournment by a time and in an amount to be fixed by a decision on the papers following the filing of written submissions. Submissions have been received.^[98]
126. [126]
     If the Tribunal makes a costs order under the QCAT Act the Tribunal must fix costs if possible.^[99]  The discretion to fix costs is a wide one and is to be exercised robustly.^[100]  The Appeal Tribunal has previously observed:^[101]

23. [23]
    An order for costs thrown away is regarded as compensation for work already done but wasted…..
24. [24]
    The aim is to make an award which is reasonable and appropriate in the circumstances of the case…..
25. [26]
    …it is the principle that when fixing costs, only those costs which are reasonable, necessary or proper should be allowed. This is of particular relevance to this matter and there is no doubt that the same test applies to costs thrown away…
26. [27]
    …to be recoverable, costs thrown away must be ‘properly and reasonably incurred.

127. [127]
     The Prytzs have filed evidence that they incurred the following costs in relation to their attendance on the first hearing day.  The evidence is that they drove to Brisbane and flew back to Townsville:

     1. 7 March 2024 – Fuel$191.90
     2. 7 March 2024 – Accommodation on the way to Brisbane&$119.00
     3. 9 March 2024 – Fuel$156.80
     4. 11 March 2024 – public transport to and from Brisbane CBD$  17.36
     5. 19 March 2024 – public transport to Brisbane airport$  56.40
     6. 6 March 2024 – Jetstar airfares Brisbane to Townsville$313.72
     7. 6 March 2024 – Jetstar baggage charge $  33.40
     8. 19 March 2024 – taxi from Townsville airport$  45.20

Total$933.78

128. [128]
     The Lestones accept that the costs were incurred but draw my attention to the fact that the Prytzs left Townsville on 7 March and returned on 19 March 2024. They submit that I should consider apportioning the costs to reflect the apparent multiple purposes of travel. Based on the dates of travel an inference is clearly available that the travel was not only for the purpose of attending the original final hearing date. The Prytzs’ submissions expressly state, and I accept, that ‘were it not for appearing before the Tribunal we would not have travelled to Brisbane (from Townsville) at that time.’^[102] 
129. [129]
     The Prytzs’ submit that the car was ‘refuelled before travel to Brisbane. The car was refuelled the day after arriving in Brisbane.’^[103] I accept that the initial fuel purchased was a cost incurred for the purpose of travelling to Brisbane for the hearing, which was adjourned. I am not satisfied that the further refuelling was a cost incurred for that purpose. Presumably the fuel purchased in Brisbane was used for other purposes, as public transport was used to travel to and from the Tribunal’s premises on 11 March and to travel to the Brisbane airport. 
130. [130]
     I am satisfied that, other than the Brisbane refuelling costs, the costs claimed were properly and reasonably incurred. 

Other Costs 

131. [131]
     Each party usually bears their own costs^[104] unless the Tribunal makes an order requiring a party to pay all or a stated part of the costs of another party where the Tribunal considers the interests of justice require it to make the order.^[105]
132. [132]
     It is appropriate to make orders to permit a party to seek orders as to other costs of the proceedings if they choose, otherwise there shall be no order as to costs of the proceeding.