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Rice v Livingstone[2015] QCATA 53

CITATION:

Rice and Ors v Livingstone [2015] QCATA 53

PARTIES:

Michael Rice and Helen Rice

Elizabeth Peek

Robert Grant and Anne Grant

Ronald Gove and Mariette Gove

(Applicants/Appellants)

v

Albert Thomas Livingstone and

Betty Livingstone

(Respondents)

APPLICATION NUMBER:

APL384-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen, Presiding Member

Member Lumb

DELIVERED ON:

14 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. With respect to Michael Rice and Helen Rice (NDR 058-13), Elizabeth Peek (NDR 059-13) and Robert Grant and Anne Grant (NDR 060-13):
    1. a)
      The appeal in respect of Ground 2 is dismissed;
    2. b)
      The application for leave to appeal in respect of Grounds 1, 3 and 4 is refused.
  1. With respect to Ronald Gove and Mariette Gove (NDR 062-13):
    1. a)
      the appeal is allowed;
    2. b)
      the Tribunal’s decision of 15 July 2014, dismissing the application for a tree dispute by the Goves, is set aside;
    3. c)
      the application for a tree dispute by the Goves is remitted to the Tribunal at Maroochydore for hearing by a different member;
    4. d)
      before the next hearing, an inspection of the Goves’ property be conducted.
  1. Each of the parties is at liberty to file (and serve on the other party), within 14 days, written submissions (no longer than 4 pages with a font size of no less than the equivalent of Arial 11) in relation to the question of costs.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREES – claimed severe obstruction of views by trees located on adjoining property – ascertainment of views that existed at the date of possession of property – obstruction of view that existed when the neighbour took possession of the land – expert arborist evidence – expert conclave – challenge to Tribunal’s rejection of expert evidence – alleged failure of Tribunal to act fairly or to observe the rules of natural justice – identification of correct test – whether test properly applied to the facts – whether all relevant considerations taken into account

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(a), s 111

Neighbourhood Disputes Resolution Act 2011 (Qld), s 49, s 66

Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148

Cachia v Grech [2009] NSWCA 232

Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWSC 556

Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield v Kattab & anor [2014] QCATA 257

Laing & Anor v Kokikos & Anor (No 2) [2013] QCATA 247

McKegney v Roofley Pty Ltd [2011] QCATA 221

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381

R v De Voss [1995] QCA 518

Seymour v Racing Queensland Ltd [2013] QCATA 179

Wood v Berg [2011] NSWLEC 1068

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal (the Application) against a decision made by the Tribunal delivered on 15 July 2014 (the Decision). The present applicants (collectively the Applicants) comprise four of the five applicants who brought an application in the Tribunal pursuant to s 66 of the Neighbourhood Disputes Resolution Act 2011 (Qld) (now the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act) against Albert Thomas Livingstone and Betty Livingstone (the Respondents) (who are also the respondents to the present Application).
  1. [2]
    The Application is heard on the papers as were the applications below. The Applicants and their corresponding case numbers are as follows:
    1. a)
      Michael and Helen Rice (the Rices) (NDR 058 – 13);
    2. b)
      Elizabeth Peek (Ms Peek) (NDR 059 – 13);
    3. c)
      Robert and Anne Grant (the Grants) (NDR 060 – 13);
    4. d)
      Ronald and Mariette Gove (the Goves) (NDR 062 – 13).
  1. [3]
    Dieter and Christiane Klein (the Kleins) were also applicants below but they have not joined in the Application.

Brief background

  1. [4]
    Each of the Applicants owns a property adjoining the Respondents’ property at Buderim in the State of Queensland. Each of the Applicants claimed below that various trees on the Respondents’ land caused substantial ongoing and unreasonable interference with the use and enjoyment of their land because the trees severely obstructed the views which existed when the Applicants took possession of their respective properties. The Applicants sought orders, pursuant to s 66 of the Act, that the trees identified in the respective reports of an arborist, Mr Jeremy Young (Mr Young), be pruned in the manner set out in such reports.
  2. [5]
    By the Decision, the Member:
    1. a)
      dismissed the applications by Ms Peek, the Grants and the Goves (and the Kleins);
    2. b)
      ordered that the Respondents shall have the Bauhinia tree located 1 metre from the Rices’ boundary trimmed to 2.5 metres above the ground and the three Camphor laurel trees numbered 4, 7 and 8 at Table 1 of Mr Young’s report (in relation to the Rices) be trimmed to 2.5 metres above the ground (and the Member declined to make an ongoing order for height maintenance).
  3. [6]
    The Applicants set out four grounds of appeal in support of the Application, namely:
    1. a)
      the Tribunal had not acted fairly and in accordance with the substantial merits of the case, nor had it observed the rules of natural justice, in respect of the expert evidence in the matter;
    2. b)
      the Tribunal did not apply the correct legal test to determine the dispute;
    3. c)
      the Tribunal failed to properly apply the test in determining the applications;
    4. d)
      the Tribunal failed to attribute the correct weight to the evidence before the Tribunal.

Ground 1

  1. [7]
    The stated ground of appeal is that the Tribunal did not “act fairly and in accordance with the substantial merits of the case” nor did it “observe the rules of natural justice” in respect of the expert evidence in the matter.  In our view, this ground of appeal, as framed, would raise a question of law. A question of law only does not require leave to appeal.[1]
  2. [8]
    In framing Ground 1 of the Application, it appears that the Applicants have picked up the wording contained in s 28(2) and s 28(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).  The Applicants’ submissions do not address whether they contend that a failure to act in accordance with the respective statutory provisions gives rise to a basis for challenging the Decision independent of a challenge on the general ground of a denial of natural justice.[2]  Without deciding the question, we note that s 28 is concerned with the procedure of the Tribunal and, in particular, the conduct of proceedings generally.[3]  The submissions also do not address the scope of any obligation under such provisions in comparison with the scope of the common law obligation of procedural fairness or natural justice.  It is unnecessary for the Appeal Tribunal to grapple with these issues because the Applicants’ miscellaneous complaints,[4] in essence, concern the rejection of the expert evidence adduced in the matter rather than an absence of procedural fairness.  There is no contention, for example, that the Applicants were denied a reasonable opportunity to be heard by the Member.  At page 5 of their submissions, the Applicants submit that the Tribunal has “incorrectly applied the law relating to the role of the experts in a tree dispute” and erred in rejecting the expert evidence “without a proper basis”. In our view, these matters (even if established) do not fall within the compass of a failure to accord procedural fairness (or a denial of natural justice).
  3. [9]
    The Applicants complain that the Member rejected the expert evidence (or at least some relevant aspects of the evidence) of the two arborists who had provided reports in relation to this matter and who subsequently participated in an expert conclave conducted by a Senior Member of QCAT, following which they prepared an Expert Conclave Report.  Mr Young was engaged by the applicants below. The second arborist was Mr Tony Cockram (Mr Cockram) who was appointed by the Tribunal.
  4. [10]
    The Expert Conclave Report stated (the applicants below being described as the “neighbours” and the Respondents being described as the “tree keepers”):

Issues

  1. a)
    Whether the tree keeper’s trees are a severe obstruction of the views that existed when the neighbours took possession of the land.

Areas of Agreement

  1. b)
    The neighbours took possession of their land at different times. The reference in Mr Cockram’s report of 2001 (paragraph 1.4) is simply a reference to growth of the trees over the last 12 years and is not relevant to the date of possession.
  2. c)
    The trees are a severe obstruction of the views that existed when the neighbours took possession of the land.
  3. d)
    That the obstruction of the view can be managed by carrying out the works identified in Table 1 to Mr Young’s report dated 11 October 2013, subject to paragraph 4.
  4. e)
    There should be no decision about the removal of trees numbered 5, 21-24 until all other trees the subject of this report have been pruned and the remaining views can be assessed.
  5. f)
    The trees should be inspected annually. The experts that there will be a need for ongoing maintenance work to maintain the height of the canopy and, therefore, the view.

Areas of Disagreement

Nil

  1. [11]
    Table 1 to each of Mr Young’s reports sets out a list of all the trees on the Respondents’ property that he considered should have a crown reduction (or removal of the tree in a few cases) to allow the Applicants to enjoy the views they enjoyed at the date of taking possession of their respective properties. Each of the reports separately identified the particular trees which were referable to the particular Applicants.
  2. [12]
    The Applicants’ complaints arise out of the rejection of such evidence. The Applicants rely on various matters which are said to demonstrate that the evidence was wrongly rejected.
  3. [13]
    The Applicants submit that to the extent it is found that the Tribunal made a reference under s 111(1)(c) of the QCAT Act to Mr Cockram, the Tribunal was “bound to accept” the determinations of Mr Cockram on the questions referred to him.[5]  On 26 April 2013 the Tribunal directed that, among other things, an appropriately qualified arborist be appointed as an assessor to “carry out an inspection of the tree(s) and provide a report to the Tribunal on the issues raised in the application”.  In our view, this direction fell within the scope of subsection 111(1)(a) (ask an assessor to give expert evidence in a proceeding) and not subsection (1)(c).  The argument fails at the threshold.  In any event, even in cases where a written report is provided pursuant to subsection (1)(c), the Tribunal may either adopt the assessor’s decision or findings, in whole or in part, or may reject the decision or findings (after considering any submissions made) (see s 111(3)). In our view, subsection 111(1)(c) does not require the Tribunal to accept the decision on a question referred under that subsection. There is no substance in this aspect of the Applicants’ challenge to the Decision.
  4. [14]
    The Applicants also submit that the Member was not entitled to reject the “rational opinions” of the experts in this case and to substitute his own opinion based on some of the evidence.[6]  The Applicants relied upon the case of R v De Voss [1995] QCA 518 and, in particular, the following passage:

From the above, it must be accepted that the case which went to the jury was one of uncontradicted evidence given by two psychiatrists, who were in substantial agreement as to all matters, and of evidence given by many witnesses which supported the factual basis on which the psychiatrists relied and which generally was wholly supportive of the doctors' opinions. There were no facts pointed to on appeal which, in our view, threw doubt upon the opinions reached by the expert evidence.

  1. [15]
    De Voss concerned a jury verdict in a criminal prosecution. The Court also said:

Where there is expert medical opinion to the effect that an accused satisfies s 304A then a verdict which adopts a contrary view will be set aside on appeal as being unsafe and unsatisfactory if there is no evidence which casts doubt upon the correctness of that medical opinion: R v Morgan ex parte Attorney-General [1987] 2 Qd R 627; R v Tumanako (1992) 64 A Crim R 149. In determining whether there is evidence which casts doubt upon the correctness of expert opinion, regard must be had to all of the evidence, including the factual basis relied on by the expert witnesses for the purposes of their opinion and whether the expert opinion is unanimous: R v Michaux [1984] 2 Qd R 159 at 164 per Connolly J; R v Morgan at 630 per McPherson J. (underlining added)

  1. [16]
    The Court made clear that regard must be had to the issue of whether there is any evidence which casts doubt upon the correctness of the opinion in question including the factual basis relied upon by the expert witnesses.
  2. [17]
    The experts in the present case concluded that the trees the subject of the applications below were a severe obstruction of the views that existed when the applicants below took possession of their land. This conclusion was necessarily predicated on the evidence of the applicants below as to the view that existed when they took possession of their respective properties (save that Mr Young reached a conclusion about the extent of the view from the lower level deck of the Goves’ property in 2006).  The question of the view that existed at the time of possession was the subject of challenge by the Respondents below and was also the subject of findings made by the Member.  In our view, notwithstanding the consensus between the experts, the Respondents were entitled to mount a challenge to the factual foundation of the experts’ conclusion in relation to the views that existed at the date of possession of the Applicants’ respective properties. The Tribunal was not bound to accept their opinions if it was not satisfied of the factual foundation for the conclusion reached.
  3. [18]
    The Applicants also submit that the Tribunal has “appeared to doubt the probity of the experts in this case on the basis of incorrect assumptions and the baseless accusations of the Respondents”.[7]  The specific assumptions and accusations are not expressly articulated; presumably the Applicants seek to have the Appeal Tribunal identify the particular assumptions and accusations from the preceding submissions. It is not explained how such matters, if established, demonstrate a failure by the Member to accord procedural fairness (or to observe the rules of natural justice).
  4. [19]
    We will address the substance of the submissions made by the Applicants.
  5. [20]
    One specific complaint by the Applicants is based on the submission that it is “difficult to see how the Tribunal could be convinced of bias on the basis of the material before it”.[8]
  6. [21]
    The Member noted[9], and it is not disputed, that when Mr Cockram conducted his inspection on 15 June 2013 he spoke with all five (original) applicants and Mr Young but did not speak with the Respondents because they were overseas at the time. The Member then said:[10]

While the Tribunal understands how this occurred, it is not desirable as it raises perceptions of bias, which arose in this case. It can also impact on the discussions at the Expert Conclave as the absent party may perceive that their views may not have been adequately represented. When this occurs, the Tribunal must ensure that justice occurs and that these undesirable processes do not bias the outcome.

  1. [22]
    Whether the Member was intending to refer to an apprehension of bias or to some inference of actual bias is unclear.  We consider that the circumstances outlined do not raise a “perception of bias”.  Mr Cockram was a Tribunal appointed arborist who was requested to prepare an expert report.  In our view, an inability to speak with the Respondents at the time coupled with the decision to proceed to speak with the Applicants who were present would not justify either conclusion.  Perhaps the Member was concerned that the Respondents had not had a proper opportunity to be heard. However, that is a different thing from apprehended or actual bias. If an opportunity to be heard was the Member’s concern, the Reasons of the Member do not identify what relevant information the Respondents could have provided, but were denied the opportunity to provide, to Mr Cockram. Nevertheless, despite the Member’s reference to “perception of bias”, it is not evident that this observation was material to any subsequent finding made by the Member in relation to the expert evidence. The Member’s findings in relation to the various Applicants were premised on the Member’s factual findings in relation to the existence and extent of the views enjoyed from the respective properties at the date of possession.
  2. [23]
    The Applicants also criticise what they allege is a finding by the Member that the parties were “absent” from the expert conclave.[11]  In our view, this submission involves a misreading of the Member’s reasons. We consider that the Member was referring to the “absent party” (that is, the Respondents) being absent at the time of the inspection on 15 June 2013 rather than being absent from the expert conclave.
  3. [24]
    The Applicants also seek to attack the Member’s finding that Mr Cockram failed to ascertain the date when any of the Applicants took possession of their land.[12] Mr Cockram’s reports do not purport to identify the date of possession in relation to any of the Applicants.  The Applicants submit that “Somewhat confusingly, the Tribunal immediately sets out the relevant dates Cockram recorded in his reports”.[13]  This is incorrect. The Member, at Reasons [34], records the dates noted by Mr Young (not Mr Cockram).
  4. [25]
    The Member rejected the identical statement by Mr Cockram in each of his five reports that “Given the photographic evidence provided on site, it is my professional opinion that these trees had not grown into an obstructing postion [sic] at the time the dwelling was acquired by the applicant” because Mr Cockram failed to ascertain the relevant date for the view.[14] The Member also noted that Mr Cockram failed to attach copies of the photographic evidence referred to in that statement notwithstanding that he attached other photographs apparently taken by him on the date of inspection.  In our view, the identification of the views enjoyed from properties at the date of possession had the potential to impact on the conclusion reached as at the date of Mr Cockram’s report. However, at the time of the expert conclave Mr Cockram had the benefit of Mr Young’s reports and the photographic evidence contained in those reports. The joint opinion expressed in the Expert Conclave Report was based on that evidence. That Report notes that the “neighbours took possession of their land at different times” and that the reference by Mr Cockram to the year 2001 in his report “is simply a reference to growth of the trees over the last 12 years and is not relevant to the date of possession” and that the “trees are a severe obstruction of the views that existed when the neighbours took possession of the land”.  In our view, Mr Cockram’s original reports should be read in conjunction with Mr Young’s reports and the Expert Conclave Report (Mr Cockram being a co-author of this report).  Whether such evidence should be accepted turns on whether the Applicants established the view that existed when they took possession of their respective properties.  This was a factual matter and, as noted above, this was the subject of challenge.
  5. [26]
    The Applicants also challenge the following finding of the Member at Reasons [92]:[15]

At the Expert Conclave Mr Cockram appears to have adopted all of Mr Young’s recommendations with the exception of those affecting his trees numbered 5, and 21 – 24. There is no explanation as to why Mr Cockram made such a significant variation from his reports, which only involved trimming defined trees. The Applicants only requested trimming the Livingstones’ trees but Mr Young recommended removing trees.  The Tribunal finds that this ‘evidence’ arising from the Expert Conclave is not reliable or acceptable under these circumstances.

  1. [27]
    These observations were made in the course of dealing with the application brought by the Rices.
  2. [28]
    The finding by the Member was preceded by the following observations at Reasons [91]:

The Tribunal notes that Mr Young identified the extra 7 trees, listed in the above Table, which he considered were obstructing the Rices’ view in June 2013. He recommended the removal of trees 5 and 6 despite the application only being for trimming.

  1. [29]
    It not entirely clear why the Member chose to italicise the word ‘evidence’ in Reasons [92].  The Member appears to have taken issue with Mr Cockram’s adoption of Mr Young’s recommendations save with respect to the trees numbered 5 and 21-24. The Member’s apparent concern appears to be twofold, namely that Mr Cockram agreed to the trimming of additional trees to those he initially indicated should be trimmed and, secondly, by adopting much of Mr Young’s recommendations that included the removal of some of the trees.
  2. [30]
    As to the first matter, it is our view that, of itself, there is nothing concerning about one expert altering his or her position as a result of an expert conclave with another expert. The central purpose of an expert conclave is to enable the experts to confer under the supervision of a Tribunal member in order to reach a position in which the experts can  identify matters which are agreed and identify the areas of disagreement (if any).
  3. [31]
    As to the second matter, Mr Young, in his report in relation to the Rices dated 11 October 2013, stated that tree removal is proposed for one tree as crown reduction cannot be achieved successfully for this species. When regard is had to Table 1, this appears to be a reference to the Archontophoenix alexandrea species of tree. The Member makes no reference to this evidence and it appears that this evidence is undisputed.  
  4. [32]
    Mr Young also recommended the removal of “tall cane” in relation to the species Dypsis lutescens. Mr Young does not address the need to remove tall cane. The Member noted that Mr Young had not provided any evidence to justify the removal of the “canes”.[16]
  5. [33]
    In our view, the matters raised by the Applicants do not establish any failure on the part of the Member to afford them procedural fairness or natural justice. The complaints concern the alleged wrongful rejection of the expert evidence.  Whether the expert evidence should have been rejected will turn on the question of whether the factual foundation for same was established by the Applicants. This will be considered below in relation to Grounds 3 and 4.  For the reasons discussed above, Ground 1 of the Application has not been established.

Ground 2

  1. [34]
    Whether the correct test has been formulated for determining an application under s 66 of the Act involves a question of law which does not require the grant of leave to appeal.[17]
  2. [35]
    There are two limbs to the Applicants’ argument that the Member failed to adopt the correct legal test.  First, that he failed to cite the decision of Justice Wilson, then President of the Tribunal, in Laing  & Anor v Kokikos & Anor (No 2) [2013] QCATA 247 and failed to identify the three step process set out by Justice Wilson.[18]  Secondly, that the Member erred in applying the dicta in Wood v Berg [2011] NSWLEC 1068 that for an obstruction to be “severe” the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.[19]

The three step process set out in Laing

  1. [36]
    In Laing, Justice Wilson set out, at [34], the following three step process which the Tribunal must follow when determining applications for orders under s 66(3)(b)(ii) of the Act:

First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, 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, ss 72, 73 and 75.

  1. [37]
    It is correct, as the Applicants submit, that the Member did not cite Laing. However, the critical question is whether the Member identified the correct test. In our view, the Member did identify the correct test.
  2. [38]
    With respect to the first element, the Member noted that the Tribunal was required to ascertain the date on which each of the Applicants took possession of their land and the view that existed at the date of possession.[20]  Consistently with this, the Member identified the date that each of the Applicants took possession of the respective properties.[21]
  3. [39]
    With respect to the second element, the Member said that once the views that existed at the date of possession are in evidence, the Tribunal can assess the interference, if any, with the use and enjoyment of the Applicants’ land because of the Respondents’ trees obstructing the view and, if the trees do “interfere”, the Tribunal must decide whether they obstruct “severely” or otherwise before making orders.[22]   In our view, these observations are in conformity with the second element set out by Justice Wilson in Laing.
  4. [40]
    The third element identified by Justice Wilson requires a balancing of the interests of the parties giving consideration to the matters listed in ss 72, 73 and 75 of the Act. In light of the findings made by the Member in relation to the Applicants other than the Rices, it was unnecessary to consider the third element. However, the Member noted that the Tribunal must consider s 72 in making an order under s 66 of the Act.[23]  Also, with respect to the Rices, the Member noted that when considering what orders are appropriate, the Tribunal is guided by the provision of s 72 of the Act.[24]  The Member also stated that the Tribunal was required to consider the matters raised in section 73 and 75 of the Act.[25]   The Member identified the relevant sections to be considered as part of the test. The Applicants have not demonstrated any error in relation to this element.

The dicta in Wood

  1. [41]
    The second limb of the Applicants’ argument in relation to the application of the correct legal test asserts that the Member erred in having regard to the dicta in Wood in relation to the test as to whether an obstruction should be classified as “severe”. In our view, the submission selectively draws from the Member’s reasons one of six paragraphs (paragraph 20) extracted from Wood.  The Member proceeded to cite various passages from Haindl v Daisch (Reasons [24]-[26]) and a further passage from Bagley v Guthrie (Reasons [27]) and then referred to the “totality of the outlook from the various dwellings” at Reasons [29].  The Member did not make a finding that, in relation to each of the Applicants’ dwellings, the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.[26]  The Member identified the correct test.
  2. [42]
    There is a separate issue raised by the Applicants as to whether the Member properly applied that test to the facts.
  3. [43]
    For the reasons set out above, Ground 2 of the Application has not been established.

Grounds 3 and 4

  1. [44]
    The third ground of appeal asserts a failure to properly apply the test to the facts in determining the applications.
  2. [45]
    We will examine the matters raised by Ground 3 in the context of each of the Applicants to determine whether the matters of complaint involve a question of law, a question of fact or a mixed question of law and fact.
  3. [46]
    The Applicants’ written submissions do not set out a separate section in relation to Ground 4, namely failing to attribute the correct weight to the evidence before the Tribunal. On its face, it appears to raise a question of fact.[27]  The Applicants seemingly seek to cover this ground by reference to the submissions in relation to the ground 3.
  4. [47]
    To the extent that a question of mixed law and fact is involved, the applicable principles are set out in Laing:[28]

Is there a reasonably arguable case of error in the primary decision?  Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?

  1. [48]
    The first and second questions were treated as cumulative requirements by his Honour in Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148 at [16]. In Laing, Justice Wilson cited with approval a decision of the New South Wales Court of Appeal in Cachia v Grech [2009] NSWCA 232 where the Court said[29]:

It is important to keep in mind that for leave to appeal to be granted in a case such as this, the court must be satisfied not merely that there is a reasonably arguable case of error, but also that there is a reasonable prospect of substantive relief being obtained.

  1. [49]
    A similar approach was adopted by Kerrie O'Callaghan, Senior Member and Anne Forbes, Member in McKegney v Roofley Pty Ltd [2011] QCATA 221:[30]

Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? (underlining added)

  1. [50]
    We will consider the case made in relation to each of the Applicants in respect of Grounds 3 and 4.

The Rices

  1. [51]
    The Rices were the only Applicants to enjoy any success below albeit that the Member ordered the pruning of fewer trees than those sought to be pruned by the Rices.
  2. [52]
    The Member ordered that a Bauhinia located 1 metre from the Rices’ boundary be trimmed to 2.5 metre above the ground and that three Camphor laurel trees numbered 4, 7 and 8 on Mr Young’s table 1 of his report dated 11 October 2013 be trimmed to 2.5 metres above the ground. The Member found that that reduction in height would restore the Rices’ view “to a large degree even though its 1995 view has not been able to be established”.[31]
  3. [53]
    Reading the Reasons as a whole, it appears that the Member ordered the pruning of a fewer number of trees than had been sought by the Rices on the basis of a lack of reliable photographic evidence of the asserted panoramic view said to have existed when the Rices took possession of the property in June 1995 and that the photographic evidence of the view in 2001 would have been “seriously affected” by the removal of various trees and the poisoning of two fig trees on the Respondents’ property prior to that date.[32]
  4. [54]
    The findings were that:
    1. a)
      five trees were removed by the previous owner of 15 Monks Crescent in about January 1999;[33]
    2. b)
      two 100 year old fig trees were poisoned by persons unknown just prior to February 2001 and subsequently cut down (these trees being located in front of the Rice and Peek dwellings). [34]
  1. [55]
    The submissions made on behalf of the Rices[35] did not address the finding in relation to the five trees removed by the previous owner of 15 Monks Crescent.
  2. [56]
    With respect to the findings in relation to the fig trees, the Rices’ submitted that the Tribunal could not “safely proceed” to make findings about the extent to which the fig trees may have impacted on the Rices’ view. 
  3. [57]
    The first ground of attack was in relation to the alleged date of the poisoning of the fig trees.  The Grants point to a letter from the Respondents to the Rices dated 28 September 2009 which referred to the investigation of the poisoning of the fig trees in “2002” not 2001.  The Grants also refer to a document from the Respondents saying that the fig trees were poisoned in “2001”.  It is unclear how this second aspect of the evidence is necessarily inconsistent with the Respondents’ case.  By their Statement dated 19 December 2013, the Respondents stated that they discovered the fig trees dying “around February 2001”.[36]  The finding made by the Member was open on the evidence before him.
  4. [58]
    The second ground of attack centred on the base height of the fig trees. The Appeal Tribunal has viewed video footage (on the USB stick provided by the Respondents) and photographs 3 and 4 in Exhibit 10D and observe that the fig trees were tall trees. The Rices submit that the location marked by the Respondents in exhibit A to their submission dated 19 December 2013 placed the fig trees at roughly the same level of the Respondents’ house and that there is doubt as to the obstruction of the view caused by those fig trees having regard to a contour map of Bennett and Bennett Surveyors dated 3 October 2012.  We consider that the marking by the Respondents of the general location of fig trees does not provide a sound basis for concluding, by extrapolating from the Surveyors’ report, that the fig trees did not constitute an obstruction to the Rices’ view as at 1995. It does not provide a proper basis for overturning the Member’s factual finding.
  5. [59]
    The Rices also rely upon the Expert Conclave Report. However, neither that report nor the other reports of Mr Cockram and Mr Young addressed the likely height (and likely obstruction of views) of the five trees that were removed or the two fig trees that were poisoned.
  6. [60]
    The complaints made by the Rices are complaints about factual findings made by the Member.  On reviewing the evidence, we find that there is no basis for interfering with the factual finding made by Member in relation to the extent that the various trees were obstructing the Rices’ view as at 1995.  Leave to appeal is refused.

Ms Peek

  1. [61]
    The Member dismissed Ms Peek’s application on the basis that she did not adduce reliable evidence upon which the Member could assess the view enjoyed by Ms Peek from her property when she took possession in March 2007 and, consequently, was unable to determine what (if any) obstruction of the view by the Respondents’ trees had occurred since that time.[37]
  2. [62]
    There is no dispute that Ms Peek took possession of the dwelling at 11 Monks Crescent in March 2007. There was photographic evidence before the Member in relation to the view from the property. However, that photographic evidence was taken variously “before 1999” and in 1999/2000.[38]
  3. [63]
    Ms Peek seeks to challenge the finding made by the Member on two grounds namely:
    1. a)
      that Ms Peek was a “neighbour” for the purposes of section 49 of the “QCATA” [sic, the Act] on the basis that Mrs Rice resided at the property which was then owned by her parents at the earlier time and that she is entitled to seek a remedy reflecting the view at the time her parents took possession of the property;[39]
    2. b)
      that the evidence of the Expert Conclave Report is to “clearly to the effect” that a severe obstruction to the view has occurred.[40]
  1. [64]
    We find that there is no substance in either of these grounds.
  2. [65]
    As to the first ground, we consider that the Member was plainly correct in adopting the March 2007 date as the proper date for the consideration of Ms Peek’s application.  Where land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994, a “neighbour” is a registered owner of the lot or an occupier of the land.[41]  However, the requirements for an application under s 66 of the Act include the requirement that there be a severe obstruction of the view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.[42]  Paragraph 1 of Ms Peek’s statement before the Tribunal states: “I took possession of the property from my mother in early 2007”.  March 2007 was the date that the Member was required to adopt in determining the view that then existed from Ms Peek’s dwelling.
  3. [66]
    As to the second ground, for the reasons discussed above, the expert evidence was necessarily dependent upon the view that existed as at the date Ms Peek took possession of her property. She failed to adduce evidence to establish same. Further, there was an incorrect factual premise upon which Mr Young’s evidence was based. His report states that the property of Ms Peek was purchased in “1988”. The Expert Conclave Report did not expressly mention that the date of possession of Ms Peek’s property was in early 2007. The expert evidence did not consider whether there was any obstruction of the view that existed in March 2007.
  4. [67]
    In our view, there is no reasonably arguable basis for Ms Peek to challenge the Member’s dismissal of her application. Leave to appeal is refused.

The Grants

  1. [68]
    The Grants took possession of the property on in November 2011.[43]
  2. [69]
    The Member dismissed the Grants’ application on the basis that the photographic evidence did not provide evidence that any tree had caused or is causing an obstruction to the Grants’ view since November 2011 (nor likely to within the following 12 months after the Decision).[44]
  3. [70]
    The Member addressed the matters relating to the Grants’ application as follows:

[76] The Grants took possession of their property in November 2011 and provided the Tribunal with a photograph of their view looking south from the rear balcony in November 2011 (2.1). They also provided the Tribunal with another photograph of their view looking south from the rear balcony in September 2013 (2.2).

[77] Having compared these two photographs the Tribunal finds that no tree has caused or is causing an obstruction to the Grants’ view to the south or is likely to within the next 12 months.

[78] The Grants also provided the Tribunal with a photograph from the loungeroom also said to be looking south in November 2011 (3.1). This photograph shows 2 hills in the distance which do not appear in the previous photographs. They also provided the Tribunal with another photograph of their view looking south from the lounge room in September 2013 (3.2). However, while 3.2 does show an increase in the trees, a close examination shows that the horizon which is fairly faint differs from that in 3.1 and does not feature the 2 hills. The Tribunal agrees with the submissions of the [Respondents] that these photographs have distorted the view to exaggerate the influence of the trees so as to make them appear to obstruct the view.

[79] The Tribunal rejects the photographs on pages 16 and 17 of the Grants’ statement as providing proof of the tree growth since November 2011. The presence of the trees is not disputed. These photographs do not provide evidence that any tree has caused or is causing an obstruction to the Grant’s [sic] view since November 2011 or is likely to within the next 12 months.

  1. [71]
    The Applicants’ submissions, in so far as the Grants’ view is concerned, do not descend into specific detail as to the respects in which it is alleged the Member erred in making the above findings.[45]   It is submitted on behalf the Grants that “While some views appear to have been preserved to some extent it is submitted there has been severe obstruction to high value views, or will be within the next 12 months.”[46]
  2. [72]
    We have reviewed the photographs referred to by the Member.  Having regard to the totality of the respective views depicted in the photographs from the viewing locations, while minds may reasonably differ over the impact of the trees in relation to the view looking south from the Grants’ lounge, we consider that there was sufficient evidence upon which the Member could have reached the conclusions he did.  Further, even if it could be concluded that the trees had caused an obstruction to the Grants’ view since November 2011, we consider that any such obstruction could not be classified as a “severe obstruction”[47] of the view that existed in November 2011. Leave to appeal is refused.

The Goves

  1. [73]
    The Goves took possession of their property at 17 Monks Crescent Buderim in April 2006.[48]
  2. [74]
    The Member dismissed the Goves’ application on the basis that “all of the photographic evidence including Plates 1 and 2 of Mr Young’s Report which shows that the view of 2008 had not been obstructed by trees as at the date of the application …”[49]
  3. [75]
    The only photographic evidence referred to by the Member in his Reasons comprised:
    1. a)
      the photographs referred to as “Plate 1” and “Plate 2” in Mr Young’s report dated 11 October 2013 in respect of the Goves’ property;[50] and
    2. b)
      two photographs attached to the Goves’ statement being the large photo marked “2008” showing the view in 2008 looking “East North East” (the Goves’ 2008 photo) and the large photo marked “2013” (the Goves’ 2013 photo).[51]
  1. [76]
    The photograph referred to as “Plate 1” was a view from the top deck of the Goves’ property “prior to 2008”.  Mr Young noted that the primary plants were “Banana’s” [sic].  Plate 2 was said to be the same aspect in April 2013.  Mr Young noted that the Banana plants had been overtaken by Umbrella trees and African Tulip.  He also estimated that the overall canopy height was 5 to 6 metres higher than 2008.
  2. [77]
    Both the Goves’ 2008 and 2013 photos were taken from the top level of the house.  The Member made no reference to a number of other photographs and other items of evidence including the following:
    1. a)
      the photograph comprising “Plate 3” to Mr Young’s report.  This is said to be the view from the lower deck in April 2013.  Mr Young stated that by applying the growth rate that can be seen in the respective photos of the upper deck the red line marked on that photo indicates a level of canopy as it would have been in 2006.  Mr Young further stated that this is “a significant reduction in view from the lower deck”;
    2. b)
      the photograph at the bottom of the page at page 26 of the attachments to the Goves’ statement which was taken in 2013 which refers to the Macaranga tree, Umbrella trees, African Tulip and Fish tail palm with the notation “These trees have affected the view from our downstairs patio”;
    3. c)
      the photograph at the top of the page at page 27 of the attachments to the Goves’ statement which shows the view from the downstairs patio where it is said that the view is “severely obstructed”;
    4. d)
      the Goves’ statement that viewing opportunities were enjoyed from the lower deck where they had “at least 90 degrees views to the ocean and beyond” and that both decks had lost considerable views and both were “severely impacted”.[52]
  1. [78]
    The Member’s approach was to assess the view from the upper level of the dwelling. On the face of the Reasons, the Member has founded his conclusion without regard to the obstruction to the views previously enjoyed from the lower level.
  2. [79]
    The second step in the process identified by Justice Alan Wilson in Laing requires the Tribunal to determine whether the trees on the adjoining property are causing a severe obstruction of that view.  This element of “severe obstruction” was characterised by Justice Wilson as a jurisdictional fact.[53]
  3. [80]
    In determining the nature of the view that is obstructed, Justice Wilson identified three factors to be taken into consideration.
  4. [81]
    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.[54]
  5. [82]
    The second step identifies the part of the dwelling where 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.[55]
  6. [83]
    The third step assesses the impact of the interference to the views of the whole property (dwelling), 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.[56]
  7. [84]
    The case presented by the Goves was based on obstruction of the views enjoyed not only from the upper level but also from the lower level, particularly the lower deck. The Member did not address the view from this location which was said to be affected by the relevant trees growing on the Respondents’ property.
  8. [85]
    In Laing, Justice Wilson said:

[44] In Haindl v Daisch, the LEC described a ‘view’ as: … the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

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

  1. [86]
    We consider that the Reasons below reveal that the Member conducted his assessment of the obstruction of the view from a particular viewing location (the upper level) and without regard to the additional viewing location relied upon by the Goves (the lower level, particularly the deck). In our respectful view, the Member erred in assessing the third step discussed above without regard to those facts relevant to the impact of the interference to the views of the whole dwelling.[57]
  2. [87]
    While the distinction between an error of law and one of fact or mixed fact and law can be elusive,[58] it is our view that the erroneous approach adopted by the Member involves a question of law. The question of law can be characterised as a failure to take into account relevant considerations. 
  3. [88]
    In Commissioner for Children and Young People and Child Guardian v Lister, it was said to be error of law to fail to consider a relevant factor in arriving at a decision.[59]  Lister involved an appeal on questions of law under s 142 of the QCAT Act.[60]
  4. [89]
    In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc And Another it was said by the New South Wales Court of Appeal:[61]

The appeal to this court is brought pursuant to s 57 of the Court Act, which provides for an appeal on a question of law. To succeed on the appeal it is necessary for there to have been legal error in the manner in which a question was determined in the court below: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 ; [2009] NSWCA 178 at [19]–[24]; Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 at [136] (Peak). It is not necessary, however, for the question of law to be explicitly stated and decided; it is sufficient if a decision is such that resolution of a question of law is manifested by it: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 ; 270 ALR 228 ; [2010] HCA 32 at [23], [69], [78] and [91] (Kostas). Errors with respect to relevant and irrelevant considerations constitute an error or a question of law for the purposes of s 57: Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 (Lambert). (underlining added)

  1. [90]
    In Lo v Chief Commissioner of State Revenue,[62] the New South Wales Court of Appeal considered an appeal under s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) which involved an appeal “on a question of law”.  The critical issue in that case was whether the Tribunal had committed an error of law by failing to take into account relevant considerations.  Beazley P found that the factors relied upon by the appellant were relevant considerations but that they “were not of such importance or weight that a failure to consider them or to take them into account deprive the appellant of the possibility of a successful outcome”.[63]  Basten JA considered that a preferable term would be “mandatory consideration”, that is, a matter that the decision maker is bound to take into account; the obligation to take the matter into account may derive from the express terms of the statute or may be implied from its subject matter, scope and purpose.[64]
  2. [91]
    In our view, the impact that the relevant trees on the Respondents’ property had on the views enjoyed from both levels of the Goves’ property was not only a relevant consideration but was of sufficient weight and importance that deprived the Goves of the “possibility” of a successful outcome; to adopt the language of Basten JA, this was a mandatory consideration. In failing to take into account the impact of the trees on the views enjoyed from the lower level, particularly the back patio, the Member erred in law.
  3. [92]
    In Laing, Justice Wilson, President proceeded on the basis that the second ground of appeal involved a question of mixed law and fact.  The question of law was whether the Member was right or wrong in the way in which she chose to assess the claim of severe obstruction.  The question of fact was whether the findings made by the Member about the respondents’ evidence were correct or incorrect. In our view, the present case does not involve the issue of whether the factual findings made were correct or incorrect; rather, the Member failed to take into account the relevant consideration discussed above.
  4. [93]
    For these reasons, we consider that the Member erred in law in reaching the conclusion that the relevant trees on the Respondents’ land did not cause a severe obstruction to the view enjoyed from the Goves’ property and on this ground alone we would allow the appeal.  As this involves a decision on a question of law only, in so far as the Goves are concerned, the Appeal Tribunal’s powers are governed by s 146 of the QCAT Act.
  5. [94]
    Pursuant to s 146, the Appeal Tribunal sets aside the Decision in so far as the Tribunal dismissed the application by Ronald and Mariette Gove (NDR 062-13) and returns the matter to the Tribunal for reconsideration. Having regard to the photographic evidence, we consider that the Member rehearing the matter would be assisted by an inspection of the Goves’ property and, in the circumstances, we consider it appropriate that the Tribunal be directed to undertake an inspection of the Goves’ property.

Conclusion

  1. [95]
    With respect to each of the Rices, the Grants and Ms Peek:
    1. a)
      the appeal in respect of Ground 2 is dismissed;
    2. b)
      the application for leave to appeal in respect of Grounds 1, 3 and 4 is refused.
  2. [96]
    With respect to the Goves:
    1. a)
      the appeal is allowed;
    2. b)
      the Tribunal’s decision of 15 July 2014, dismissing the application for a tree dispute by the Goves, is set aside;
    3. c)
      the application for a tree dispute by the Goves is remitted to the Tribunal at Maroochydore for hearing by a different member;
    4. d)
      before the next hearing, an inspection of the Goves’ property be conducted.
  1. [97]
    Each of the parties is at liberty to file (and serve on the other party), within 14 days, written submissions (no longer than 4 pages with a font size of no less than the equivalent of Arial 11) in relation to the question of costs.

Footnotes

[1]  See s 142(1) and s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Member was not a judicial member).

[2]  See, eg, Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield v Kattab & anor [2014] QCATA 257 at [6] per Justice Thomas, President.  With respect to the imposition of the common law obligation to afford procedural fairness or natural justice, see the discussion by Spigelman CJ in Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at [6]-[10].

[3]  Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [49]-[53].

[4]  The Applicants’ submissions made in support of Ground 1 are contained at pages 5 to 15 inclusive of the written submissions.

[5]  Applicant's submissions at page 14.

[6]  Applicants’ submissions at pages 14-15.

[7]  Applicants' submissions at page 13. See also page 12.

[8]  Applicants' submissions at page 11.

[9]  Reasons below [31].

[10]  Reasons below [32].

[11]  Applicants' submissions at page 11.

[12]  Reasons below [34].

[13]  Applicants' submissions at page 11.

[14]  Reasons below [35].

[15]   The Applicant also referred to Reasons [14] where the Member referred to Mr Young suggesting that several trees should be removed but apparently did not seek to get the agreement of Mr Cockram to that course of action.

[16]  Reasons below [98].

[17]  Cf Seymour v Racing Queensland Ltd [2013] QCATA 179 at [9] per Judge Alexander Horneman-Wren SC.

[18]  Applicants' submissions pages 15-16.

[19]  Applicants’ submissions at page 16.

[20]  Reasons below [4], [5] and [40].

[21]  Reasons below [6].

[22]  Reasons below [5].

[23]  Reasons below [13].

[24]  Reasons below [129].

[25]  Reasons below [15] and [119].

[26]  See the Applicants' submissions at page 16.

[27]  See Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWSC 556 at [12].

[28]  At [29].

[29]  At [13].

[30]  At [6].

[31]  Reasons below [118].

[32]  Reasons below [41]-[49] esp. [44], [47].  See also [100].

[33]  Reasons below [43](a).

[34]  Reasons below [43](b).

[35]  See pages 17-20.

[36]  Paragraph 21.

[37]  Reasons below [68].

[38]  Reasons below [63]-[67].

[39]  Applicants' submissions at page 22.

[40]  Applicants' submissions at page 23.

[41]  Subsection 49(1)(a) of the Act.

[42]  Subsection 66(3)(b)(ii).

[43]  Reasons below [76].

[44]  Reasons below [79]-[80].

[45]  Applicants' submissions at pages 23-24.

[46]  Applicants' submissions at page 24.

[47]  The test for which is set out in Laing at [36]-[37].

[48]  Reasons below [51].

[49]  Reasons below [61].

[50]  Reasons below [53]-[55], [61].

[51]  Reasons below [57]-[60].

[52]  Paragraph 20 of the statement.

[53]  At [35].

[54]  At [39].

[55]  At [40].

[56]  At [41].

[57]  Cf Laing at [49].

[58] Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22 at [19] per Judge Fleur Kingham, Deputy President, Ms Gwenn Murray, Member and Dr Nigel Collings, Member.

[59]  [2011] QCATA 22 at [19].

[60]  At [9].

[61]  (2014) 307 ALR 262; [2014] NSWCA 105 at [4] (Bathurst CJ, Beazley P and Tobias AJA).

[62]  (2013) 85 NSWLR 86.

[63]  At [4].

[64]  At [9].  See also Macfarlan JA at [50].

Close

Editorial Notes

  • Published Case Name:

    Michael Rice, Helen Rice, Elizabeth Peek, Robert Grant, Anne Grant, Ronald Gove and Mariette Gove v Albert Thomas Livingstone and Betty Livingstone

  • Shortened Case Name:

    Rice v Livingstone

  • MNC:

    [2015] QCATA 53

  • Court:

    QCATA

  • Judge(s):

    Member Allen, Member Lumb

  • Date:

    14 Apr 2015

Appeal Status

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