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Miles v Body Corporate for Solarus Residential Community Titles[2016] QCATA 130

Miles v Body Corporate for Solarus Residential Community Titles[2016] QCATA 130

CITATION:

Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130

PARTIES:

Justin Miles

Lisa Miles

(Applicants)

v

Body Corporate for Solarus Residential Community Titles Scheme CTS 41491

Wayne Lee Gough

Royalie Ann Walters

Craig Williams

Amber Williams

(Respondents)

APPLICATION NUMBER:

APL109-15

MATTER TYPE:

Appeals

HEARING DATE:

25 August 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

14 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is dismissed;
  2. Any submissions on costs are to be filed in the Tribunal and exchanged within fourteen (14) days;
  3. Unless any party requests an oral hearing, the question of costs will be determined on the papers and without an oral hearing.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – whether use of a lot constituted a nuisance or hazard or an unreasonable interference was a jurisdictional fact – whether failure by adjudicator to find a nuisance or unreasonable interference was an error of law – whether findings of fact constituted an error of law – whether obstruction of a view constitutes an unreasonable interference with use or enjoyment of a lot – assessment of a view and the obstruction of a view – whether adjudicator was required to conduct a site inspection – whether adjudicator had the power to conduct a hearing to test expert evidence – whether evidence of diminution in value of lot relevant to whether there has been an unreasonable interference with use or enjoyment of a lot – whether failure to give adequate reasons

Body Corporate and Community Management Act 1997 (Qld), s 167, s 269, s 271, s 289, s 294

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Albrecht v Ainsworth & Ors [2015] QCA 220

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 033

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Body Corporate for Grand Pacific Resort CTS 29576 v Cox [2012] QCATA 14

Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47

Calvisi v Brisbane City Council & Ors [2008] QPEC 45

Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001

Cypressvale Pty Ltd & Anor v Retail Shop Leases Tribunal [1996] 2 Qd R 462

Ericson v QBCC [2014] QCA 297

Grut-Mackay v Cherwood Lodge CTS 20711 [2004] QDC 229

Haindl v Daisch [2011] NSWLEC 1145

K G Tully & Anor v The Proprietors The Nelson Body Corporate [2000] QDC 031

Kokkinos and Anor v Laing and Anor [2012] QCAT 580

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

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

Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

Norbury v Hogan [2010] QCATA 27

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

R v District Court: Ex Parte White (1966) 116 CLR 644

Scenic Point [2003] QBCCMCmr 300

Tenacity Consulting v Warringah [2004] NSWLEC 140

Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55

APPEARANCES:

APPLICANT:

Mr P Roney QC instructed by BCK Lawyers

FIRST AND

SECOND RESPONDENTS:

Mr A Fraser instructed by Connolly Suthers Lawyers

THIRD RESPONDENT:

Mr A Sinclair instructed by Stratum Legal

REASONS FOR DECISION

What is this appeal about

  1. [1]
    Justin and Lisa Miles (the applicants) own an apartment in Solarus, a residential complex in Townsville. They purchased their apartment off the plan. The owners of two apartments on the level below the applicants, Mr Gough and Ms Walters and Mr and Mrs Williams (the respondent lot owners), were given permission by the body corporate to erect louvres over their outdoor living areas. The effect of this, said the applicants, was to cause a nuisance or unreasonably interfere with the use or enjoyment of their lot. The applicants’ sought the removal of the structures and brought an adjudication application. An adjudicator dismissed the application. The applicants have appealed that decision.

The statutory framework and appeals to the Tribunal

  1. [2]
    Pursuant to s 289 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’) an appeal from the decision of an adjudicator may only be made on a question of law. The tribunal may amend or substitute an order only if the adjudicator, who made the order being appealed, would have had jurisdiction to make the amended or substituted order or decision.[1] The tribunal may, in addition to the jurisdiction and powers of the appeal tribunal under the QCAT Act, exercise all the jurisdiction and powers of an adjudicator under the BCCMA.[2]
  2. [3]
    Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, in deciding an appeal against a decision on a question of law only, the appeal tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration with or without the hearing of fresh evidence.[3]
  3. [4]
    An appeal on a question of law is not a rehearing. Unless the determination of the question of law is capable of determining the matter as a whole in the applicant’s favour, the proceeding must be sent back to the tribunal or the relevant decision maker for reconsideration.[4]
  4. [5]
    An appeal from an adjudicator under the BCCMA is an appeal in the strict sense. Once an error of law affecting the adjudicator’s decision is identified, the Appeal Tribunal may exercise the adjudicator’s powers and substitute its own decision based on the material before the adjudicator, consistent with the adjudicator’s undisturbed factual findings.[5] There is no element of rehearing nor can fresh evidence be considered.[6]
  5. [6]
    Section 167 of the BCCMA provides:

Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

  1. (a)
    causes a nuisance or hazard; or
  1. (b)
    interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
  1. (c)
    interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
  1. [7]
    The terms “nuisance”, “hazard” and “interferes unreasonably” are not defined in the BCCMA.

The background to the appeal

  1. [8]
    The applicants moved into lot 1001 in or about May 2010.[7] Lots 901 and 902 are immediately below lot 1001. When the applicants’ first moved in, the outdoor living areas of lots 901 and 902 had privacy louvres erected over their balconies that extended approximately one (1) metre from the building structure.[8] In or about November 2013 building works commenced on lots 901 and 902 extending the louvre structure.[9] Those building works were subsequently pulled down.[10] The body corporate subsequently resolved to give approval to the owners of lots 901 and 902 to install aluminium louvre blades/blinds extending to the edge of the balcony (the structures). The construction of the structures was completed by mid-December 2013.
  2. [9]
    The applicants complained about a number of issues relating to the structures including the impact of the structures on their lot. They applied to the Office of the Commissioner for Body Corporate and Community Management for adjudication having unsuccessfully attempted to conciliate the dispute. The applicants complained that the structures caused a nuisance and unreasonably interfered with the use or enjoyment of their lot. They also complained of a number of other matters not relevant to the present appeal.
  3. [10]
    The applicants relied upon a number of grounds to support their contention that the structures created a nuisance and/or an unreasonable interference with the use or enjoyment of their lot:
    1. The obstruction of the view from their lot caused by the structures;
    2. The glare caused by the structures;
    3. The heat radiating from the structures;
    4. The design of the structures was unsightly and detracted from the visual amenity of their lot as a whole;
    5. The lack of cleanliness and cleaning protocols relating to the structures.[11]
  4. [11]
    In their submissions to the adjudicator the applicants argued that in considering whether the use of a lot interferes unreasonably with the use or enjoyment of another lot, a lower threshold is to be adopted than the relevant test for establishing nuisance. The applicants said that in determining whether there is an actionable nuisance, the common law test is an objective one and there must be a substantial degree of interference according to what are considered reasonable standards for the enjoyment of the premises.[12]
  5. [12]
    The body corporate in its submissions to the adjudicator said that s 167(b) BCCMA was intended to extend the ambit of relief beyond common law nuisances to other subject matter not actionable at common law but which had a similar impact.[13] The body corporate submitted to the adjudicator that the level of interference required to satisfy s 167(b) BCCMA must be of substantially the same gravity as would satisfy the test for nuisance.[14]
  6. [13]
    The respondent lot owners did not disagree with the applicants that a lesser test than that required for nuisance applies when considering whether an interference is unreasonable. They said that what was unreasonable depends upon the prevailing circumstances in each case and that the test is an objective one.[15]

The decision of the Adjudicator

  1. [14]
    Relevant to this appeal, the adjudicator made the following findings:
    1. it was not necessary to undertake an inspection of the premises before deciding the application[16]
    2. the ordinary meaning of “unreasonable interference” applies[17]
    3. what is considered unreasonable depends on the prevailing circumstances and is an objective test[18]
    4. The evidence relating to glare and heat did not satisfy the test for nuisance nor did it constitute an unreasonable interference[19]
    5. There was no authoritative or objective evidence that the materials used to construct the works or the colour scheme used was inappropriate[20]
    6. There was no evidence that the body corporate or owners of lots 901 and 902 had notice that glare and heat would likely be an issue[21]
    7. The respondent lot owners acted in accordance with industry advice and local government approvals[22]
    8. there was no evidence that glare and heat was particularly relevant to lot 1001 or that lot 1001 could be differentiated from lots 807, 906 and 1003[23]
    9. the applicants had not established that the glare and/or heat from either structure was a nuisance or unreasonable interference[24]
    10. lot 1001 continued to enjoy whole views to the north, south and west of the lot of the Coral Sea, Magnetic Island, the Townsville City Centre and urban areas of Townsville; there was no evidence that sea views had been affected[25]
    11. the views to Ross Creek and adjacent parkland, and to Palmer Street from various parts of lot 1001 had been obstructed by the structures[26]
    12. the totality of the loss of the single or whole view from lot 1001 was minor[27]
    13. it was relevant that the structures were built to local government requirements[28]
    14. the owners of lots above other lots on which similar structures had been erected did not consider heat and glare to be an issue[29]
    15. the minor obstruction of the view from lot 1001 did not constitute an unreasonable interference with the use or enjoyment of the property[30]
    16. the adjudicator’s jurisdiction did not enable a hearing to test the credit of either valuers’ advice[31]
    17. There was no basis upon which a finding could be made that the report by the applicants’ valuer should prevail[32]
  2. [15]
    The Adjudicator dismissed the applications.

What do the applicants say on this appeal?

  1. [16]
    The applicants rely upon a number of grounds of appeal. They say:
    1. The adjudicator erred in:
    1. failing to give proper consideration to the evidence in relation to whether the structures constituted a nuisance or unreasonable interference;
    2. failing to give proper consideration to the extent to which there was a substantial degree of interference with the reasonable standards for the enjoyment of the premises as a result of the structures;
    3. Failing to conclude that the structures were a nuisance;
    4. Failing to conclude that the structures were an unreasonable interference;
    5. Failing to consider what just and equitable orders should be made.
    1. the adjudicator erred in failing to take into consideration alternative means the respondents could have adopted to achieve the amenity provided by the structures;
    2. the adjudicator erred in failing to undertake a site inspection;
    3. the adjudicator erred by taking into consideration that the structures had been approved by the local authority;
    4. the adjudicator erred in applying Tenacity Consulting v Warringah[33];
    5. in applying the test in Tenacity Consulting the adjudicator failed to assess the impact of the interference to the views of the whole property and failed to consider or understand the extent to which the views were affected from different parts of the lot;
    6. the adjudicator failed to take into consideration the reasonableness of the structures and, to the extent that he did take this into account, he failed to take into account:
    1. the evidence of the diminution in value of the property;
    2. the objective reasonableness of the structures;
    3. the extent of the evidence in relation to the extent of lost views.
    1. the adjudicator failed to analyse and make appropriate findings of fact as to the evidence of the totality of the losses of view;
    2. the adjudicator erred in concluding that the losses of view were minor having regard to the nature and value of the lot, its position in the property and the nature and character of the property;
    3. the adjudicator erred in failing to make a determination as to which assessments of the diminution in value he preferred;
    4. the adjudicator failed to conclude that the level of interference with the appellants’ enjoyment of the lot was sufficiently substantial to demonstrate a breach of s 167 BCCMA.
  2. [17]
    Ground (k) asserts an error of law by the adjudicator in failing to find a jurisdictional fact.

Error of law – jurisdictional facts and findings of fact generally

  1. [18]
    The applicants’ grounds of appeal include an attack on various findings of fact made by the adjudicator. The basis upon which such a challenge can be made was recently considered by the Supreme Court of New South Wales in BKE v Office of Children’s Guardian & Anor.[34] BKE involved an appeal from the New South Wales Civil and Administrative Tribunal to the Supreme Court on a question of law.
  2. [19]
    Beech-Jones J identified three relevant standards concerning appeals on a question of law regarding findings of fact:
    1. Where the power or jurisdiction of the tribunal depended upon the objective determination of the facts being challenged[35]
    2. Where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction by the tribunal depended – a “jurisdictional fact”[36]
    3. Where the challenged facts do not constitute part of the formation of the opinion or state of satisfaction ie they are not a jurisdictional fact.[37]
  3. [20]
    The meaning of a “jurisdictional fact” has been expressed thus:

The doctrine of jurisdictional fact can only have application where the statute in question requires the existence of a particular fact or facts as a condition of the exercise of jurisdiction. It is only where, in the words of Spigelman CJ in Timbarra at [39], “the statutory formulation...contains a factual reference” that the possibility arises that the factual reference in question may be a jurisdictional fact.[38]

  1. [21]
    The adjudicator could only make an order that was just and equitable if he was satisfied that the use of the respondent lot owners’ lots caused a nuisance or hazard, or interfered unreasonably with the use or enjoyment of the applicants’ lot. The satisfaction of the adjudicator was a condition precedent to the exercise of his jurisdiction and power to make an order and is therefore a jurisdictional fact upon which the exercise of the adjudicator’s power was conditioned.
  2. [22]
    In finding (or not finding) a jurisdictional fact, the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.[39] Inadequacy of the material before a decision maker concerning the attainment of satisfaction by the decision maker is insufficient in itself to establish jurisdictional error.[40] Inadequacy of material may however be a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters.[41]
  3. [23]
    Challenged facts may not constitute part of the formation of the opinion or satisfaction regarding a jurisdictional fact. There is no error of law in making a finding of fact unless there is no evidence to support the finding.[42] There is no error of law if a finding of fact or an inference drawn is contrary to the overwhelming weight of the evidence.[43] It is not an error of law even if the reasoning process by which the court reaches its conclusion of fact is demonstrably unsound or illogical.[44] There may be an error of law if a decision is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment.[45]
  4. [24]
    A challenge to a finding of fact on the “no evidence” basis may be agitated on an appeal restricted to a question of law.[46]

What do the parties say about the approach of the adjudicator to s 167 BCCMA?

  1. [25]
    Before considering what the parties say was the approach by the adjudicator to his consideration of s 167 BCCMA it is relevant to consider what the parties had to say in their submissions to the adjudicator.
  2. [26]
    The applicants said that the unreasonable interference contemplated by s 167(b) must respond to factual circumstances distinguishable from nuisance. They submitted that the concept of unreasonable interference has no equivalent tort at common law and that while some of the considerations from the common law test for whether a nuisance exists will apply when considering whether an interference is unreasonable, the threshold is lower than whether an interference amounts to a nuisance.[47]
  3. [27]
    Before the adjudicator, the body corporate said the intention of s 167(b) was to extend the ambit of relief beyond common law nuisances to other subject matter not actionable at common law, but which had a similar impact.[48] The body corporate said that an unreasonable interference need not relate to a category of nuisance actionable at common law but the level of interference must be of substantially the same gravity as would satisfy the test for nuisance.[49]
  4. [28]
    The respondent lot owners did not disagree with the applicants’ approach to what constituted an unreasonable interference however said that the assessment must be an objective one having regard to a person of normal sensitivity.[50]
  5. [29]
    In this appeal, the applicants say that the adjudicator failed to properly consider the limbs of s 167 and “appears to have rolled them all up into a single analytical process, treating the test for nuisance as applicable to or the same as the test for unreasonable interference.”[51] They say that the adjudicator fell into error in applying the test in Laing & Anor v Kokkinos & Anor (No 2)[52] which involved a consideration of the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’) and Tenacity Consulting v Warringah[53] which involved New South Wales planning legislation.
  6. [30]
    The respondent lot owners say there was no error in the adjudicator’s approach. They say that the adjudicator correctly found that the two limbs of s 167 BCCMA fell for consideration and that “interferes unreasonably” was to be given its ordinary meaning.
  7. [31]
    The body corporate says that s 167(b) BCCMA does not incorporate the common law requirement that the interference be substantial and that the section can cover things that are not a nuisance at common law.[54] The body corporate says that an interference must be more than inconsequential or negligible and that this is part of being reasonable.

How did the adjudicator formulate the tests for nuisance and unreasonable interference?

  1. [32]
    In his reasons, the adjudicator refers to the relevance of the decisions in Norbury v Hogan[55] and Quinn v The Body Corporate of Sanctuary Bay CTS 6523[56], noting the discussions in those cases of the terms “nuisance” and “unreasonably interferes”.[57]
  2. [33]
    The adjudicator referred to Norbury in which (then QCAT) President Wilson observed:

Under the common law, a private nuisance is an unlawful and unreasonable interference with an occupier’s use or enjoyment of land or of some right over, or in connection with it.

The nuisance must result in a substantial degree of interference accordance to what are considered reasonable standards for the enjoyment of those premises.

  1. [34]
    The adjudicator also referred to the decision in Quinn:[58]

The BCCMA does not define the word “nuisance”, which therefore bears the meaning of private nuisance at common law, that is, a substantial and unreasonable interference with the use or enjoyment of land.

  1. [35]
    The adoption by the adjudicator of the test for nuisance identified in Norbury and Quinn is found at [40] of the reasons where the adjudicator refers to the relevant test for nuisance and differentiates this from the considerations relevant to finding an unreasonable interference.
  2. [36]
    The adjudicator considered the issue of whether the loss of a view could constitute an unreasonable interference. The adjudicator referred to the decision in Laing & Anor v Kokkinos & Anor (No 2)[59] and in particular the following passage from the judgement of President Wilson which is here set out in full:

The loss of a view will, however, never cause sufficient loss of use or enjoyment of land so as to constitute an actionable nuisance: ‘Prospect… is a matter only of delight, and not of necessity’. In Australia, it is well established that there is no general right to a view from one’s property.[60]

  1. [37]
    The adjudicator considered the secondary objects of the BCCMA and in particular s 4(a). He considered as relevant the decision in Laing in determining the issues relating to the view and the extent to which the view may have been impaired.[61]
  2. [38]
    The reasons make clear that the adjudicator considered the test under s 167(b) BCCMA as being an objective one “to be measured against the needs and circumstances of a neighbour of ordinary sensitivity”.[62]
  3. [39]
    It is appropriate to pause to consider briefly what can be deduced from the various authorities relevant to the interpretation of s 167 BCCMA. From those decisions the following principles can be distilled:
    1. the term “nuisance” in s 167(a) BCCMA carries the common law meaning of private nuisance;
    2. the test for “nuisance” under s 167 BCCMA is the same as the test for nuisance at common law – the nuisance must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises;
    3. the test for “nuisance” is an objective one;
    4. the phrase “interferes unreasonably” in s 167(b) BCCMA is to be construed according to the normal meaning of the words;
    5. the test for “unreasonable interference” does not involve any notion of substantiality;
    6. The test for “unreasonable interference” is an objective one.
  4. [40]
    The reasons reveal that the adjudicator understood these principles. He specifically referred in his reasons to the different tests to be satisfied to establish nuisance and unreasonable interference. The approach by the adjudicator to s 167 BCCMA was the correct one.

Did the adjudicator apply the same approach to determining both nuisance and unreasonable interference?

  1. [41]
    The applicants say that the adjudicator “rolled (each of the limbs of s 167) up into a single analytical process, treating the test for nuisance as applicable to or the same as the test for unreasonable interference.”[63]
  2. [42]
    I have found that the adjudicator understood the relevant principles required to be applied in determining nuisance and unreasonable interference. In his reasons, the adjudicator considered the discussion of “nuisance” and “interferes unreasonably” in Norbury and Quinn. [64]
  3. [43]
    Norbury involved a dispute between lot owners relating to the effects of cigarette smoke. An adjudicator found the smoke caused an unreasonable interference with the use or enjoyment of Mr Hogan’s lot. Then QCAT President Wilson considered the approach of the common law to the phrase “interferes unreasonably” and considered previous decisions as to what constitutes an unreasonable interference. His Honour’s consideration traversed the relevant principles for establishing a nuisance. His Honour found that the adjudicator had erroneously applied a subjective test rather than an objective test under s 167 BCCMA.
  4. [44]
    Quinn involved a dispute over glare caused by solar roof panels. The Appeal Tribunal held that the term “nuisance” in s 167 BCCMA has the common law meaning of private nuisance. The Appeal Tribunal held:[65]

…the Adjudicator had to apply to concrete facts and real life activities the elusive concept of substantial and unreasonable interference‘, with no more accurate compass than a direction to make an order that is just an equitable in the circumstances ... to resolve [the] dispute…. These unsuccessful litigants may regret that the relevant basis is hardly precise…

  1. [45]
    In this appeal, the applicants are particularly critical of the following passage from the reasons which they say is evidence of the adjudicator’s merging of the notions of the relevant tests for unreasonable interference and nuisance:

[35] I agree with the applicants that the ordinary meaning of “unreasonable interference” applies. Also, I agree with the owners of Lots 901 and 902 that what is considered unreasonable depends on the prevailing circumstances in each case and is an objective test. In my view, this meaning is consistent with Norbury and Quinn.

  1. [46]
    The adjudicator does not refer at [35] to any notion of substantiality which could only be relevant to a finding of nuisance. The only reference by the adjudicator to a substantial interference is at [65] of the reasons where he refers to the applicants having “failed to establish the level of interference (with the view) is substantial enough to offend ordinary notions of reasonable standards for the use or enjoyment of Lot 1001[66]. Despite the use of the word “substantial”, it is clear from the reasons that the adjudicator was using the word in the context of a finding that the level of interference was within ordinary notions of reasonable standards.
  2. [47]
    The findings at [65] must also be read in the context of the adjudicator’s findings at [64] that the loss of view was minor and that the minor obstruction of the view did not establish a breach of s 167(b) BCCMA.
  3. [48]
    Correctly, the adjudicator at [35] identified that consideration of what is an unreasonable interference is an objective test to be applied according to the circumstances of each case.
  4. [49]
    The adjudicator did not apply the same approach to determining both nuisance and unreasonable interference. There was no error by the adjudicator.

The decision of the adjudicator in relation to a “view”

  1. [50]
    The adjudicator was required to consider whether an obstruction of a view could amount to an unreasonable interference with the use or enjoyment of a lot.
  2. [51]
    The adjudicator accepted that interference with a view could be an unreasonable interference for the purposes of s 167(b). The correctness of that finding is not argued in this appeal. Whether the obstruction of the view from the applicants’ lot constituted an unreasonable interference with their use or enjoyment of the lot required the adjudicator to consider the following:
    1. What was the view from the applicants’ lot before the erection of the structures;
    2. What was the view from the applicants’ lot after the erection of the structures;
    3. Did the erection of the structures result in any alteration to the view enjoyed from the applicants’ lot prior to the erection of the structures;
    4. Did the alteration of the view constitute an unreasonable interference.

How did the adjudicator approach the issue of “view” and “unreasonable interference”?

  1. [52]
    The adjudicator considered what is “a view”. He referred to Laing in which the decision of the NSW Land and Environment Court in Haindl v Daisch[67] was considered.
  2. [53]
    The adjudicator then considered the question of what is an interference with a view. He again referred to Laing in which President Wilson considered the four step process adopted by Roseth SC in Tenacity Consulting v Warringah[68]. The four steps are:
    1. Identify and value the types of views affected;
    2. Identify the part of the dwelling from where the views exist and the reasonableness of protecting views from such areas;
    3. Assess the impact of the interference to the views of the whole property not just for the view that is affected;
    4. Assess the reasonableness of the proposal that is causing the impact.
  3. [54]
    The adjudicator applied what he referred to as the “Norbury and Quinn test taking into consideration Laing and Tenacity Consulting.”[69] The reasons reveal that the adjudicator first established the view from lot 1001.[70] He then considered the extent of the interference with the view and from which parts of the lot.[71] The adjudicator then referred to step 4 from Tenacity in finding that it was “relevant that the structures are certified as being built to local government requirements”.[72]
  4. [55]
    The applicants say that the adjudicator erred in adopting the test in Laing when that decision concerned the application of the NDA on the basis that:
    1. Section 66 of the NDA has an entirely different philosophy to the BCCMA;
    2. The standard of obstruction required by the NDA before jurisdiction was attracted was different;
    3. In Laing there was a discretion in the Tribunal to determine how to deal with the dispute;
    4. The interference spoken of in the NDA is a more strident and serious form of interference than is required for s 167(b) BCCMA to be satisfied.[73]
  5. [56]
    The NDA deals with disputes between neighbours about trees. Land affected by a tree must adjoin the land on which the trees are situated. Tree disputes involving adjoining lots within community titles schemes fall for determination under the provisions of Chapter 3 of the NDA.[74] The tribunal may make orders in relation to a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use or enjoyment of the neighbour’s land.[75] An obstruction of a view may be an interference for the purposes of the Act however it must be a severe obstruction of a view that existed from a dwelling when the neighbour took possession of the land. [76] If the obstruction is identified as severe, it is necessary to consider whether that obstruction constitutes a substantial, ongoing and unreasonable interference with the use or enjoyment of land. If it does, the tribunal’s discretionary power to make an order is enlivened. A severe obstruction of a view under s 66 NDA is a jurisdictional fact.[77]
  6. [57]
    Given the reliance placed by the adjudicator upon the decision in Laing and the applicants’ submissions as to the error in this approach, it is appropriate to consider what was decided in Laing.
  7. [58]
    Laing involved a complaint by the respondents that the views they enjoyed from their property were obstructed by trees growing on the applicants’ property. At first instance a finding was made that the respondents’ views had been severely obstructed.[78] The applicant tree keepers appealed. Then QCAT President Wilson considered the relevant statutory framework under the NDA. His Honour identified a 3 step process in considering whether and to what extent there has been an obstruction of a view:
    1. identify the view that existed when the applicant took possession of the property;
    2. determine whether the trees cause a severe obstruction of a view;
    3. if a severe obstruction is found, a balancing of the interests of the parties is required.[79]
  8. [59]
    President Wilson referred to the four-step process adopted in Tenacity Consulting for assessing the nature of the view with which there was interference caused by development.[80] His Honour did not consider the fourth step to be relevant to the consideration of a dispute under the NDA.[81]
  9. [60]
    Wilson J considered the meaning of the term “view” finding that the natural and ordinary meaning of the term, and the context in which it is found in the NDA, is:[82]

[A] single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis.

  1. [61]
    Having established the meaning of “view”, Wilson J proceeded to consider the first 3 steps identified in Tenacity Consulting, finding that the obstruction complained of was moderate.[83]
  2. [62]
    The approach in Laing adopted by the adjudicator was confined to determining the nature of the view obstructed and the extent of the obstruction.[84] Having adopted this approach the adjudicator then, quite correctly, considered whether the structures unreasonably interfered with the use or enjoyment of the applicants’ lot by reference to his findings as to the nature and extent to which the view had been obstructed by the structures. There is nothing in the reasons to suggest that the adjudicator applied any notion of severity of the obstruction of the view as can be found in s 66(3)(b)(ii) NDA.
  3. [63]
    On the hearing of the appeal, the applicants’ submitted that the adjudicator should have applied the approach adopted in Calvisi v Brisbane City Council & Ors.[85] I can discern no approach as such in Calvisi. In Calvisi, Robin DCJ acknowledged that consideration of a view involved notions of perspectives from different view points.[86] The observations by Robin DCJ are consistent with the approach in Laing and Tenacity Consulting in that it is necessary to consider a view from various vantage points.
  4. [64]
    There was no error by the adjudicator in adopting the approach in Laing in determining the “view” from the applicants’ lot. The adjudicator was correct in finding that a view from a particular location is the totality of the view.
  5. [65]
    Before the adjudicator, the applicants’ submitted that the structures interfered considerably with the line of sight from the balcony and living and kitchen areas of the applicants’ lot.[87] The applicants’ said that the favourite part of their previous view (along Ross Creek and Palmer Street) had been obscured by the structures.[88] They complained that the obstruction of view was particularly pronounced from a sitting position in the lounge room.[89] In this appeal, the applicants’ submitted that the views from the lot were north and north-west across Ross Creek and Townsville and north-east across the river mouth to Magnetic Island. The applicants’ relied upon a series of photographs depicting the view before the erection of the structures[90] and a series of photographs depicting the view after the erection of the structures.[91] The loss of view was, in this appeal, articulated by the applicants as:[92]

In this case these views were partial water views, but critically in relation to the park land in front of the unit development, from the unit view which showed the boundaries of the river was lost, and partially of the river itself, as well as distant perspectives into the town. All that one effectively saw was a view from the middle of the adjacent creek so that the overall structure of the perspective was lost.

  1. [66]
    The adjudicator identified the totality of the views from the applicants’ lot.[93] The adjudicator identified that there was no evidence that sea views had been affected. The adjudicator identified that the original awnings on lots 901 and 902 had to some extent obstructed the views from the applicants’ lot to Ross Creek, adjacent parkland and Palmer Street and that the structures further obstructed these views.[94] This was the first step of the process in Tenacity Consulting and adopted in Laing.
  2. [67]
    Having identified the totality of the views from applicants’ lot, the adjudicator proceeded to consider from where on the applicants’ lot the views existed. He identified that the views were from the front of the applicants’ lot and from the lounge and dining areas, a bedroom and the northern balcony of the lot. This was the second step in the Tenacity Consulting process.
  3. [68]
    The adjudicator then proceeded to consider the extent of the obstruction caused by the structures. He identified that, referring to the applicants’ evidence[95] the views from the applicants’ lot to Ross Creek, adjacent parkland and Palmer Street had been obstructed. The adjudicator identified the extent to which views remained from various parts of the applicants’ lot:
    1. From the lounge (including when sitting) and dining areas to Ross Creek, the Townsville city centre and Townsville urban areas
    2. From the master bedroom to Ross Creek out to the ocean
    3. From the northern balconies to Ross Creek, adjacent parkland, Palmer Street, the ocean and urban areas of Townsville[96]
  4. [69]
    The adjudicator then considered the totality of the view from the applicants’ lot, not restricted to the view to Ross Creek, adjacent parkland or Palmer Street, finding that the obstruction was minor. This is the third step in the Tenacity Consulting process.
  5. [70]
    The adjudicator’s analysis of the view and the interference caused by the structures was logical, careful and considered. His reasoning is clear. There was no error by the adjudicator in reaching the conclusion that the structures did not interfere unreasonably with the applicants’ use or enjoyment of their lot.

Did the adjudicator err in not undertaking a view?

  1. [71]
    The applicants invited the adjudicator to undertake an inspection of lot 1001. The applicants say that there was a demonstrated conflict on the evidence about the extent to which the photographs before the adjudicator were an accurate depiction of the true position regarding the impact of the structures. They say that the adjudicator erred in not undertaking an inspection of the site and that his function was to determine the case on the evidence before him using what were essentially investigative powers. The applicants say that the adjudicator clearly did not understand the extent to which the loss of the view had affected the overall amenity of the applicants’ lot.[97]
  2. [72]
    The adjudicator considered the invitation by the applicants’ to undertake an inspection. He considered the issues in dispute and the submissions by the parties and concluded that he did not consider it necessary to undertake further investigations including an inspection.[98] The adjudicator considered the written submissions filed by the parties were sufficient to decide the dispute. He did not consider it relevant that in a previous adjudication matter, a site inspection had been undertaken.[99]
  3. [73]
    An adjudicator must investigate an application to decide whether it would be appropriate to make an order.[100] An adjudicator must observe natural justice.[101] An adjudicator is invested with a wide range of investigative powers.[102] The powers include inspecting a lot included in the community titles scheme.[103] The failure by an adjudicator to properly investigate may constitute a denial of natural justice which, if found, is an error of law.
  4. [74]
    The adjudication process is essentially an inquisitorial one.[104] If the evidence being examined by an adjudicator contains some relevant evidence, it is an error for the adjudicator to treat that evidence as not providing any evidence without also investigating the matter further before rejecting that evidence.[105]
  5. [75]
    The relevant questions in determining whether the adjudicator should have undertaken an inspection are:
    1. Was there some logically probative evidence before the adjudicator which, if inadequate, should have led him to investigate further;[106]
    2. If so, should the adjudicator have undertaken an inspection of the applicants’ lot.
  6. [76]
    There was, before the adjudicator, evidence of the views from the applicants’ lot in the form of a number of photographs annexed to the affidavit of Justin Miles.[107] These photographs were the only visual evidence before the adjudicator. The applicants refer to the adjudication submissions by the other parties and the suggestion by the respondents that the applicants’ photographs were selective, intended to exacerbate the impact of the structures.[108]
  7. [77]
    The probative evidence before the adjudicator included the photographs, the affidavit of Mr Miles and the submissions by the parties. There is nothing in the adjudicator’s reasons to suggest that he considered the evidence incomplete or lacking in some respect. Even had the adjudicator found a deficiency in the evidence, there is no error of law by an adjudicator who determines that the evidence is insufficient to justify a necessary conclusion and does not actively seek further evidence to support the application.[109]
  8. [78]
    The evidence before the adjudicator, to which I have referred, was extensive. The parties availed themselves of the opportunity to place before the adjudicator the evidence upon which they sought to rely. It was for the adjudicator to determine what investigations ought to be undertaken.[110]
  9. [79]
    I conclude that the failure by the adjudicator to undertake an inspection was not a denial of natural justice and there was no error of law.

The relevance of Council approval and certification

  1. [80]
    The adjudicator found that the owners of lots 901 and 902 had acted in accordance with local government approvals[111] and that it was relevant that the structures had been certified as being built to local government requirements.[112]
  2. [81]
    The applicants contend that the adjudicator took into consideration an irrelevant consideration namely that the structures had been approved and certified as being built to local government requirements. The applicants say that the adjudicator erred in adopting the existence of a local government approval of the works as a basis for concluding that the loss of a single or whole view of the lot was minor and in rejecting the evidence regarding heat and glare.[113]
  3. [82]
    This ground of appeal is really concerned with the fourth step in the Tenacity Consulting process and whether the adjudicator took this step into consideration and if he did whether this was an error of law.
  4. [83]
    Insofar as the issue of glare and heat is concerned, reasons [40] to [41] are relevant. There is nothing in the reasons to support the conclusion that the adjudicator relied upon the existence of local authority approval for the structures to base his finding that the loss of view from the applicants’ lot was minor and in rejecting the applicants’ evidence regarding heat and glare.
  5. [84]
    The adjudicator’s finding that the respondent lot owners had acted in accordance with local government approvals was made in the context of his finding that there was no evidence that the body corporate or respondent lot owners had notice that heat and glare from the structures would be an issue before they were constructed.[114]
  6. [85]
    In relation to the interference with the view, reasons [59] to [64] are relevant. At reasons [63] the adjudicator found that it was “relevant” that the structures had been approved. It is unclear in what respect, or to what extent, the approval was relevant to the adjudicator’s findings and conclusions. Whilst the adjudicator could have perhaps expanded upon this finding, the failure to do is not, alone, of sufficient gravity to constitute a failure to give proper reasons.
  7. [86]
    The applicants’ submit that the reference by the adjudicator to “relevant” at reasons [63] leads to his finding at [64] that the totality of the view obstruction was minor. I do not accept this submission. As the reasons at [64] make clear, the adjudicator’s finding that the view obstruction was minor was made by specific reference to his findings regarding “the loss of the single or whole view” from the applicants’ lot and that it was “this view” that was relevant. The minor obstruction found by the adjudicator was of the whole view applying Laing and Tenacity Consulting. The adjudicator then correctly considered whether, objectively, there was an unreasonable interference and found none.
  8. [87]
    I agree with the submissions by the respondent lot owners that the factors that may be taken into account in determining whether the use of a lot interferes unreasonably with the use or enjoyment of another lot. Whether use a lot causes a nuisance or an unreasonable interference requires an objective assessment. It is appropriate in a communal living environment to consider the purpose of a particular form of use, in this case the erection of the structures to provide amenity to the respondent lot owners. Compliance with local authority requirements may be a relevant consideration when assessing the objective reasonableness of a complaint of nuisance or unreasonable interference.
  9. [88]
    I find no error by the adjudicator.

The findings by the adjudicator in relation to heat and glare

  1. [89]
    The applicants say that the adjudicator erred in failing to make a finding that the extent of the heat and glare constituted a nuisance or an unreasonable interference.
  2. [90]
    The adjudicator referred to the submissions by the parties in relation to the issues of heat and glare.[115] The adjudicator referred to a report from Allunga Exposure Laboratory dated 20 June 2014 obtained by the body corporate. Allunga was commissioned to examine the likelihood of unwanted glare and heat from upward facing shutters and flooring tiles from one level in a residential complex to the level above.[116] The report identified:
    1. the assessment of the tiles and shutters took place on a clear, sunny day in June 2014;
    2. the gloss readings varied from 9.4 to 63.7 (measured in gloss units) depending on the angle of the shutters (20 degrees to 85 degrees from vertical);
    3. the highest gloss reading occurred in the early morning or late afternoon;
    4. peak solar energy will occur around noon;
    5. the amount of light reflected will depend upon the season of the year;
    6. reflection is lower in summer than in winter;
    7. taking into consideration the time of year with the highest potential for reflectivity the highest potential gloss levels at 5.4 was an extremely low level of reflectivity;
    8. the maximum potential for reflectance occurs at sunrise and sunset or during winter. The roof surface could therefore be viewed directly from any angle without discomfort;
    9. the balcony tiles would have no reflective impact;
    10. measurements were taken of objects 200mm from the shutters/tiles and 200mm above a wooden table – both in full sun for in excess of 1 hour. Testing revealed that heat transfer from the tiles and shutters was not noticeable at a distance of 200mm.
  3. [91]
    The applicants are critical of the Allunga report. They say that the report was prepared in winter when there were relatively low levels of heat and light; that it did not involve any attendance at the subject site; and that the author of the report does not describe what he did at the site.[117] The somewhat contradictory nature of the applicants’ submissions was addressed to some extent by the concession at the hearing of the appeal by senior counsel for the applicants that it can be inferred from the content of the report that the testing had been carried out on site.
  4. [92]
    The applicants say the report states that:[118]

[T]he highest gloss reading at the lowest angle of incidence such as early morning or late afternoon while the reflection levels were relatively high, the amount of available light was low at those angles. But of course, this was all done in the winter time.

  1. [93]
    It is implicit in the submission that any issues relating to reflectivity will be more significant at other times of the year. The submission misstates the opinion expressed in the report. The report clearly identifies that reflectivity readings in the summer are lower as a result of the higher angle of the sun.
  2. [94]
    The applicants submit that the conclusion in the Allunga report that heat transfer was not noticeable in the middle of winter at a distance of 200mm is hardly of significance given that one would expect temperature ranges in the summer months to be significantly higher.[119] The submission misunderstands the opinion expressed in the Allunga report. The methodology adopted in the report was, essentially, to measure the radiated heat onto, firstly, an object a set distance from each of the tiles and the upper surface of the shutters and, secondly, the radiated heat onto an object the same distance from a wooden table. The conclusion expressed in the report was that the tiles and shutters did not transfer heat to any greater extent than the comparable control i.e. the wooden table. The evidence before the adjudicator as found in the report was therefore that the shutters did not create any additional transfer of heat than the balcony tiles or the control object ie the wooden table.
  3. [95]
    Against the Allunga report, the applicants sought to rely upon their own evidence. The affidavit of Mr Miles refers to the issues of glare and heat caused by the structures.[120] The applicants had the opportunity to place further evidence before the adjudicator, including obtaining a report by an expert, and elected not to do so. In their submissions to the adjudicator the applicants invited the adjudicator to conduct an inspection of the lots.[121] The applicants submitted to the adjudicator that the Allunga report was “not determinative of the issue, especially without the benefit of testing the evidence of the author of that report.[122] The submission by the applicants did not address how the evidence could or should be tested.
  4. [96]
    In support of this argument, the applicants say that the adjudicator accepted that, before him, there was no opportunity to challenge the conflicting views of the valuers. The applicants pose the rhetorical question, how can unchallenged evidence in relation to heat or glare be preferred when there is a concession that the appellants had no chance to challenge it.
  5. [97]
    The basis of this submission is the applicants’ reliance on what they say was a finding by the adjudicator that the applicants had not had the opportunity to test the Allunga report. There was no such finding by the adjudicator. At reasons [39] the adjudicator simply recites the applicants’ primary submission that the Allunga report was not determinative without the benefit of being tested.
  6. [98]
    The finding by the adjudicator that there was no objective evidence that the louvres generated significant glare and/or radiate a significant amount of heat is clearly a reference to independent evidence other than that of the applicants whose evidence could only be viewed as subjective.[123] The reasons make clear that the adjudicator nevertheless clearly considered and weighed the evidence of the applicants.[124] His reasoning is logical and clear.
  7. [99]
    The adjudicator was required to consider and weigh the evidence before him. This he did. The adjudicator had evidence before him upon which he made his findings. His process of reasoning is, as I have found, clear and intelligible. There was evidence upon which the adjudicator could make his findings. The determination by the adjudicator was not irrational or illogical. It was based on findings supported by logical grounds. There was no error by the adjudicator. Further, and for the reasons I have already given, there was no denial of natural justice by the adjudicator in not conducting an inspection of the lot in relation to the heat and glare issues.
  8. [100]
    The applicants say that the adjudicator wrongly referred to the extent to which other lot owners might, or were seen not to, have been affected by similar glare and heat. They say there was no such evidence and that the adjudicator erred in making findings based upon speculation and an absence of evidence.
  9. [101]
    Before the adjudicator, the respondent lot owners submitted that the structures had been constructed in a similar manner and concept to those installed on lots 807, 906 and 1003.[125] The respondent lot owners submitted that they were not aware of any complaints having been received by the body corporate in relation to the structures on those lots.[126] The body corporate submitted to the adjudicator that other lot owners (without specifying which lots but presumably those referred to by the respondent lot owners) had sought and obtained permission to install similar structures and that the body corporate had no evidence of complaint arising from those works. The body corporate further submitted that affected owners had enjoyed the benefits arising from the works however how and to what extent such benefits accrued is not set out in the submissions.[127]
  10. [102]
    At reasons [40.3] the adjudicator refers to similar structures on lots 803, 906 and 1003 and to the occupiers above these lots not considering heat and glare to be an issue. The adjudicator’s findings appear to have been made in the context of his seeking to apply an objective rather than a subjective test in determining whether the structures constituted a nuisance or an unreasonable interference. The adjudicator refers to “opinions” expressed by the occupiers of lots 803, 906 and 1003. The extent of those opinions is limited to the submissions by the respondent lot owners and the body corporate which go no further than stating that there had been no complaints by other lot owners about these other structures.
  11. [103]
    There was no evidence before the adjudicator upon which he was entitled to find that the occupiers of the lots above lots 807, 906 and 1003 did not consider glare and heat to be an issue. There was no evidence before the adjudicator upon which he was entitled to find that the applicants’ lot could be differentiated from lots 807, 906 and 1003. The adjudicator erred in law in so finding.
  12. [104]
    The adjudicator’s reference to the other lot owners in not limited to the issue of heat and glare. At reasons [64] the adjudicator refers to the applicants’ concerns about views not being supported by other occupiers “who are similarly affected by similar structures…”.
  13. [105]
    The import of the reliance by the adjudicator upon the submissions by the respondents regarding other lots was limited to a consideration of the subjectivity of the applicants’ complaints of nuisance or unreasonable interference. This can be readily discerned from reasons [40.3] and [64].
  14. [106]
    Accordingly, despite the error by the adjudicator in treating the respondents’ submissions as evidence, there was sufficient evidence upon which the adjudicator was entitled to find that, objectively, the structures did not cause a nuisance or an unreasonable interference with the use or enjoyment of the applicants’ lot. The evidence before the adjudicator was sufficient for him to conclude, as he did, that the structures did not cause a nuisance or unreasonably interfere with the applicants’ use or enjoyment of their lot.

Did the adjudicator err in considering the reasonableness of the interests of the owners of lots 901 and 902?

  1. [107]
    The applicants say that the adjudicator erred in taking into consideration in assessing whether there had been an unreasonable interference with the view from the applicants’ lot, the reasonableness of the proposal that was causing the impact. The applicants say that no part of the exercise under s167(b) requires any focus on what would be reasonable from the offending obstructer’s point of view.[128] The applicants’ submit that if this was in fact a relevant consideration, the erection of the structures was entirely unreasonable.[129] The applicants say that the adjudicator failed to take into account the objective reasonableness of the construction of the structures.[130]
  2. [108]
    Section 167(b) is expressed in broad terms. The approach to considering whether an interference is unreasonable is an objective one and to be undertaken in the context of the prevailing circumstances. I accept the correctness of the lot owners’ submission that the factors that may be taken into account in determining whether there has been an unreasonable interference are not limited by the terms of s 167.
  3. [109]
    Assessing the reasonableness of the proposal causing an impact is the fourth step in Tenacity Consulting in determining the interference with a view. It is appropriate to pause here to consider the fourth step. Roseth SC observed:[131]

A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

  1. [110]
    At [40.1] of the reasons the adjudicator observed that it was reasonable for a property owner to seek to cover an outdoor living area such as a balcony for protection from the weather. This was not a finding by the adjudicator it was a comment. Nor could it be said to be an application of the Tenacity Consulting fourth step. The adjudicator was making an observation. There is no reference to the respondent lot owners. The only findings made about the respondent lot owners were that they had used materials and a colour scheme to match existing structures and that they had acted in accordance with industry advice and local government approvals. There is nothing in the reasons to suggest that these findings led to the conclusions reached by the adjudicator as to whether the structures caused a nuisance or interfered unreasonably with the applicants’ lot.
  2. [111]
    At [63] of the reasons the adjudicator states that it is relevant that the structures were certified as being built to local government requirements[132]. As I have observed the reasons do not make clear how and to what extent such certification was relevant.
  3. [112]
    There is nothing in the reasons to suggest, as submitted by the applicants, that the adjudicator took into consideration the reasonableness of the actions of the respondent lot owners, or if he did the extent, if any, such consideration was relevant, or the extent of such relevance, in the final determination of the application.
  4. [113]
    I find no error by the adjudicator.

Alternative measures available to the owners of lots 901 and 902

  1. [114]
    The applicants say that the adjudicator erred in failing to take into consideration alternative means by which the respondent lot owners might have achieved the desired amenities provided by the structures which did not constitute a nuisance or an unreasonable interference. This ground of appeal is not expanded upon in the applicants’ outline of submissions.
  2. [115]
    The body corporate says that no evidence was placed before the adjudicator about any alternative measures and whether such measures would have been effective and that the matter was not agitated by the applicants before the adjudicator.[133]
  3. [116]
    The applicants address this ground of appeal in their submissions in reply.[134] They say that the true position is that the evidence before the adjudicator compared the existing privacy louvres which were in place prior to the subject works being carried out with the subsequent effect of the structures.
  4. [117]
    The applicants do not point to any submission made to the adjudicator relevant to this ground of appeal. It is apparent from the material before the adjudicator that the only evidence before him on this point was the affidavit by Mr Miles. Mr Miles makes reference to the structures on lots 901 and 902 that existed before the structures in dispute were erected and the impact of those structures.[135] Mr Miles elsewhere in his affidavit comments on the impact of the structures in dispute.[136]
  5. [118]
    The adjudicator did not err in failing to take into consideration alternative means by which the respondent lot owners could have achieved the desired level of amenity. The adjudicator can hardly be criticised for failing to consider a point not argued before him on which there was an absence of relevant probative evidence. The applicants say that no part of the exercise under s 167(b) requires any focus on what would be reasonable from the offending obstructer’s point of view.[137] Yet this is precisely what the applicants complain the adjudicator failed to do in not considering alternative structures the respondent lot owners might have constructed.
  6. [119]
    It was not possible for any consideration of alternative structures to have been undertaken without some evidence as to the nature of the proposed structure and whether it achieved the desired amenity sought by the respondent lot owners to address the identified issues impacting that amenity. This would necessarily involve a consideration of the objective reasonableness from the respondent lot owners’ perspectives in terms of both what they sought to achieve and the extent to which any proposed structure achieved the desired outcome. In the absence of any such evidence, or any argument presented to the adjudicator to the effect advanced by the applicants, there was nothing for the adjudicator to consider or upon which to make findings.
  7. [120]
    I find no error by the adjudicator.

The valuation evidence

  1. [121]
    The applicants obtained a report (the Taylor Byrne report) from Carlo Lando, a valuer, who expressed the opinion that the diminution in value of the applicants’ lot caused by the structures was $100,000.00.[138] The applicants submitted before the adjudicator that the material impact on the market value of the lot supported the applicants’ contention that the structures interfered unreasonably with their use or enjoyment of the lot.[139] The applicants submitted that were it the case that the structures did not interfere unreasonably, there would be no or minimal impact upon the market value of the lot.
  2. [122]
    The respondents relied upon a valuation report by Mr A P Dickinson of Opteon (North QLD) Pty Ltd (the Opteon report). Mr Dickinson found no diminution in value in the applicants’ lot as a result of the structures.[140]
  3. [123]
    The adjudicator made a number of findings:
    1. the impact on the applicants’ view referred to in the Taylor Byrne report was based on an incorrect approach;
    2. neither party’s submissions about the methodology adopted by the respective valuers was persuasive;
    3. it was not possible for the adjudicator to conduct a hearing to test the credit of either opinion;
    4. there was no authoritative evidence that the Opteon report could be ignored or disregarded;
    5. there was no basis in the context of the dispute to find that the Taylor Byrne assessment should prevail.[141]
  4. [124]
    The applicants’ appeal is limited to findings (3), (4) and (5). The applicants say that it was open on the evidence for the adjudicator to make findings about diminution in value and that it was an error of law not to do so.[142]
  5. [125]
    The effect of the submission by the applicants’ is this: if expert evidence is that the value of a lot is diminished as a result of interference with a view from the lot, such evidence is relevant to whether the interference is an unreasonable interference with use or enjoyment of the lot because:
    1. a view, if it exists, is something to be enjoyed from a lot;
    2. a prospective purchaser will be prepared to pay an amount to purchase a lot in order to, among other things, enjoy the view from a lot;
    3. a prospective purchaser will pay something less if the view is obstructed;
    4. the reduction in the amount a prospective purchaser is prepared to pay for the lot is evidence that a view has value, that value being directly related to the enjoyment of the lot.
  6. [126]
    Mr Lando inspected the applicants’ lot on 14 April 2014. He expressed the opinion that the reduction in value of the lot as a result of the structures was $100,000.00. Mr Lando opined that the most appropriate method of valuation was by “Direct Comparison with sales evidence in the immediate locality.[143] The report identifies seven properties. The effect of the awning is addressed at [6.5] of the report where it is stated:

Whilst the awning extension has a relatively small impact on the overall size of the views available, the impact on the quality of the Ross Creek vista is considered to materially impact upon the value of the subject property.

We have on balance adopted a value of $3,750 per square metre of total unit area on an “as is” basis.

  1. [127]
    The Opteon report was authored by A D Dickinson. The author conducted an external inspection only. The report notes that internal access to the applicants’ lot could not be gained however the author had access to lots 901 and 902 and to lot 1101 located directly above the applicants’ lot. The author was briefed with a number of documents including a letter of instruction from the respondents’ solicitors, the Taylor Byrne report, statements by the respondents filed in the adjudication proceeding and “various photographs” of the applicants’ lot and from lots 901 and 902. The methodology adopted by the author is described as “the direct comparison or market approach to valuation.”[144] The author notes that there were no known directly comparable sales of units similar to the applicants’ lot which had sold with full or partially restricted views. The author opined that a premium of $20,000 per floor or 2.8% to 3% is paid as the view improves. The author expressed the opinion that the diminution in value of the applicants’ lot was nil to nominal as a result of the structures and that the 6% reduction in value opined by Mr Lando was not supported by the sales evidence given the small view aspect lost.
  2. [128]
    The adjudicator referred to the parties submissions about the methodology of the approach taken by the valuers.[145] The applicants’ submitted to the adjudicator that:
    1. the Opteon report should be ignored as the valuer had not inspected the applicants’ lot;
    2. the Taylor Byrne report should be preferred as the valuer had inspected the applicants’ lot;
    3. the methodology adopted by the Opteon valuer was uncertain for a number of reasons: it involved consideration of different views from different lots in different complexes; only 5 comparisons had been completed, none involving an obscured view; the question of whether a view is superior or inferior is subjective when compared with the indisputable fact of the diminution in the applicants’ existing view.
  3. [129]
    The respondent lot owners submitted that:
    1. the Taylor Byrne report contained no similar comparison data or similar evidence to justify the per square metre dollar value contained in the report;
    2. the Opteon report used proper assessment criteria and used market sales in direct reference to impeded views of the nature experienced by the applicants.[146]
  4. [130]
    The first issue to address is whether evidence of diminution in value of a lot can be evidence of an unreasonable interference with the use or enjoyment of a lot. The prohibition on the unreasonable interference with the “use or enjoyment” of a lot spoken of in s 167(b) is by reference to the “use” of another lot or the common property, just as such “use” must not cause a nuisance or hazard. The words “use” and “enjoyment” derive their meaning from the context in which the words are used. Given their plain meaning, use refers to utilising a lot for its normal purpose, and enjoyment is the pleasure or benefit derived from the lot. Therefore, the physical use of one lot must not, in a physical way, interfere unreasonably with the use or enjoyment of another lot.
  5. [131]
    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. For example, for evidence of diminution in value caused by interference with a view to be relevant and probative, the view interfered with and the extent of the obstruction referred to in the report (and which is said to be productive of the diminution in value) would need to be the same view unreasonably interfered with for the purposes of s 167 BCCMA. This would require a valuer to adopt the correct approach to identifying the view as required by s 167 BCCMA and as discussed in these reasons.
  6. [132]
    Neither valuation report before the adjudicator was particularly compelling. The methodology used by the valuers by reference to the comparator properties was vague and lacking in specificity. The adjudicator found neither parties submissions as to the methodology adopted by the valuers to be persuasive. He was entitled to make this finding. The submissions by the parties on methodology were essentially a recitation of the contents of the reports which, as I have found, were vague and lacking in specificity.
  7. [133]
    In finding that the jurisdiction did not enable a hearing to test the credit of the valuers the adjudicator correctly identified the limits on his powers. An adjudicator may require a person who may be able to help resolve issues raised by an application to be present to be interviewed[147] or to give information in the form of a statutory declaration[148]. An adjudicator has no power to force a person to assist an investigation. At worst, a failure to be interviewed or to give information may result in the imposition of a monetary penalty.[149] An adjudicator has no power to conduct a hearing.
  8. [134]
    The applicants say that the fact a hearing could not be conducted was no impediment to the adjudicator making a finding on the expert evidence by accepting one expert over the other. The applicants say that the adjudicator determined that he was not prepared to, or not in a position to, make a determination on the question of whether there was a diminution in the value of the applicants’ lot as a result of the interference with the view.[150] The applicants submit:[151]

… this challenge is to the finding of the Adjudicator that the jurisdiction did not enable a hearing to test the credit, and that therefore there was no authoritative evidence that the Opteon valuation could be ignored or disregarded, and that there was no basis in the context of the dispute to find that the Taylor Byrne assessment should prevail.

  1. [135]
    The difficulty with the applicants’ submissions is that the adjudicator made no such finding. The applicants’ submissions conflate a number of the adjudicators’ findings and are expressed as one finding by the adjudicator leading to another. The adjudicator in fact made a number of separate and distinct findings.
  2. [136]
    The adjudicator was critical of the approach in the Taylor Byrne report to the question of the view which he referred to as being “concentrated on single elements which given Laing is the wrong approach to take at law.”[152] Relevant to the impact of the structures on the view from the applicants’ lot, Mr Lando opined that:
    1. The structures materially impacted on the quality of the Ross Creek views;
    2. Whilst the awning had a relatively small impact on the overall size of the views available, the impact on the quality of the Ross Creek vista was considered to materially impact upon the value of the applicants’ lot.[153]
  3. [137]
    In light of the approach taken by the adjudicator to assessing the view from the applicants’ lot, there is no doubt that Mr Lando’s assessment of the view and the impact of the view is an overly narrow one and does not accord with Laing. In light of my comments as to the probative value of a valuation report generally, the report of Mr Lando does not address the diminution in value in the applicants’ lot in accordance with the required process for assessing a view and therefore could not be given any, or any significant, weight by the adjudicator.
  4. [138]
    The adjudicator found that there was no basis for the Taylor Byrne assessment to prevail. I understand the adjudicator to have used the word “prevail” in the sense of being accepted after argument. Support for this conclusion can be found in the adjudicator not referring to “prevail” when considering the Opteon report. Rather he refers generally to there being no basis in the context of this dispute to find that the Taylor Byrne assessment should prevail. The basis and context referred to by the adjudicator are a reference to the totality of the evidence and submissions before the adjudicator.
  5. [139]
    It was for the applicants to discharge the burden of proof in asserting the claim that the structures had caused a diminution in the value of their lot and that such diminution in value was relevant and probative evidence of the loss of the use or enjoyment of the lot. This required certain findings by the adjudicator including accepting the evidence of Mr Lando. The adjudicator did not make this finding and it is tolerably clear from his reasons that, in not accepting the Taylor Byrne report, he did not accept that the applicants had discharged the burden of proof on the requisite standard. I find no error by the adjudicator.
  6. [140]
    Even if I am wrong and for the reasons outlined, the Taylor Byrne report contained no evidence of sufficient probative value to support the applicants’ contention that the opined diminution in value was evidence of an unreasonable interference with use or enjoyment of the applicants’ lot. For this reason any error by the adjudicator in not making a specific finding on which valuation report he preferred did not infect the decision by the adjudicator that the jurisdictional fact had not been established with irrationality, illogicality or findings not supported by logical grounds.

Adequacy of reasons

  1. [141]
    The applicants say that the adjudicator failed to give adequate reasons and that this constitutes an appealable error of law. The applicants say that the adjudicator failed to conduct a proper analysis of the evidence before him, and make findings based upon it in relation to the following:
    1. that the heat and glare caused by the structures constituted a nuisance or an unreasonable interference with the applicants’ use or enjoyment of their lot;
    2. that the visual obstruction created by the structures was an unreasonable interference with the applicants’ use or enjoyment of their lot.[154]
  2. [142]
    A decision maker is required to give reasons that disclose what was taken into account and in what manner and thus whether an error has been made.[155] Reasons that would not be considered adequate if given by a judge may be considered adequate in a tribunal where the primary qualification for the appointment of decision makers is possession of specialist knowledge or experience. The question of the adequacy of reasons must be considered in the context of the issue to be decided and, among other things, the functions, talents and attributes of the person who decides the matter.[156] The adjudicator was required to provide a basic explanation of the fundamental reasons which led to the conclusions he reached.[157]
  3. [143]
    The adjudicator was required to act as quickly and with as little formality and technicality as was consistent with a fair and proper consideration of the application. His reasons for a decision were required to set out the findings on material questions of fact and refer to the evidence or other material on which the findings were based.
  4. [144]
    For the reasons I have outlined I do not consider that the adjudicator failed to give adequate reasons. This ground of appeal is not made out.

Conclusion and orders

  1. [145]
    The only ground of appeal made out by the applicants relates to the error by the adjudicator in making findings, in the absence of evidence, about other lot owners. For the reasons I have set out this error does not affect the final outcome of the appeal. The other grounds of appeal have not been made out. In finding that the structures did not cause a nuisance or interfere unreasonably with the applicants’ use or enjoyment of their lot, the decision by the adjudicator was not irrational or illogical or otherwise not based on findings or inferences of fact supported by logical grounds.
  2. [146]
    The appeal is dismissed. The parties have indicated that they wish to be heard on costs. I make the following orders:
    1. The appeal is dismissed;
    2. Any submissions on costs are to be filed in the Tribunal and exchanged within fourteen (14) days;
    3. Unless any party requests an oral hearing, the questions of costs will be determined on the papers and without an oral hearing.

Footnotes

[1] BCCMA s 294(2).

[2] BCCMA s 294(1).

[3] QCAT Act s 146.

[4] Ericson v QBCC [2014] QCA 297, esp at para [3], [10], [13] and [16].

[5] Albrecht v Ainsworth & Ors [2015] QCA 220.

[6] Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 033.

[7] Affidavit of Justin Miles at [13].

[8] Affidavit of Justin Miles at [17].

[9] Ibid at [16].

[10] Ibid at [40].

[11] Applicant submissions to adjudicator at [37].

[12] Ibid at [35].

[13] Body corporate submissions to adjudicator at [49].

[14] Ibid at [52].

[15] Submissions at [62].

[16] Reasons [31].

[17] Reasons [35].

[18] Reasons [35].

[19] Reasons [40].

[20] Reasons [40.1].

[21] Ibid.

[22] Ibid.

[23] Reasons [40.3].

[24] Reasons [41].

[25] Reasons [61].

[26] Reasons [62].

[27] Reasons [64].

[28] Reasons [63].

[29] Reasons [40.3].

[30] Reasons [64].

[31] Reasons [65].

[32] Reasons [65].

[33] [2004] NSWLEC 140.

[34] [2015] NSWSC 523.

[35] Timbarra Protection Coalition Inc v Ross Mining NL [1999] 46 NSWLR 55.

[36] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.

[37] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[38]Australian Postal Corporation v D’Rozario (2014) 222 FCR 303.

[39] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, per Gummow and Hayne JJ at [38].

[40] Ibid.

[41] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100.

[42] Op cit 37.

[43] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

[44] R v District Court: Ex Parte White (1966) 116 CLR 644.

[45] Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1.

[46] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.

[47] Applicants’ submissions to adjudicator at [35] and [36].

[48] Body corporate submissions to adjudicator at [49].

[49] Ibid at [52].

[50] Respondents’ submissions to adjudicator at [66].

[51] Applicants’ submissions at [27].

[52] [2013] QCATA 247.

[53] [2004] NSWLEC 140.

[54] Body corporate submissions at [43].

[55] [2010] QCATA 27.

[56] [2013] QCATA 25.

[57] Reasons [32].

[58] Quinn at [5].

[59] Op cit 52.

[60] Reasons [55].

[61] Reasons [56].

[62] Reasons [64] and see Norbury v Hogan [2010] QCATA 27 at [31].

[63] Applicants’ submissions at [27].

[64] Reasons at [32].

[65] Quinn at [8].

[66] Reasons at [65].

[67] [2011] NSWLEC 1145 at [26].

[68] Op cit 33.

[69] Reasons [60].

[70] Reasons [61].

[71] Reasons [62], [63].

[72] Reasons [63].

[73] Applicants’ submissions at [53].

[74] Refer to ss 48 and 49 NDA and see Lowe v BGC Technical [2016] QCATA 124.

[75] NDA, s 66(2)(b)(ii).

[76] NDA, s 66(3)(b)(ii).

[77] Laing at [35].

[78] Kokkinos and Anor v Laing and Anor [2012] QCAT 580.

[79] Laing at [34].

[80] Laing at [39].

[81]Laing at [38].

[82] Laing at [45].

[83] Laing at [56].

[84] Laing at [38].

[85] [2008] QPEC 45.

[86] Calvisi v Brisbane City Council & Ors [2008] QPEC 45 at [39].

[87] Applicants’ submissions at [45].

[88] Ibid at [46].

[89] Ibid.

[90] Exhibit JPM3 to the affidavit of Justin Peter Miles dated 3 April 2014.

[91] Ibid – Exhibit JPM16.

[92] Applicants’ submissions at [68].

[93] Reasons at [61].

[94] Reasons at [62].

[95] Exhibit JPM16 to the affidavit of Justin Miles.

[96] Reasons at [63].

[97] Applicants’ submissions at [77].

[98] Reasons at [31].

[99] Reasons at [31] and see Scenic Point [2003] QBCCMCmr 300.

[100] BCCMA, s 269(1).

[101] BCCMA, s 269(3)(a).

[102] BCCMA, s 271.

[103] BCCMA, s 271(1)(d)(iii).

[104] Grut-Mackay v Cherwood Lodge CTS 20711 [2004] QDC 229.

[105]Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001.

[106]Body Corporate for Grand Pacific Resort CTS 29576 v Cox [2012] QCATA 14.

[107] Exhibits “JPM3”, “JPM9”, “JPM13”, “JPM16”, “JPM17”, “JPM18” and “JPM19” to the affidavit of Justin Miles.

[108] Applicants’ submissions at [70].

[109] K G Tully & Anor v The Proprietors The Nelson Body Corporate [2000] QDC 031.

[110] Ibid.

[111] Reasons at [40.1].

[112] Reasons at [63].

[113] Applicants’ submissions at [89].

[114] Reasons at [40.1].

[115] Reasons at [36] to [39].

[116] Allunga report at page 2.

[117] Applicants’ submissions at [97].

[118] Applicants’ submissions at [98].

[119] Applicants’ submissions at [99].

[120] Affidavit of Justin Miles at [47] to [50].

[121] Applicants’ submissions to adjudicator in response at page 10.

[122] Ibid.

[123] Reasons at [40.2].

[124] Reasons at [28], [29], [36].

[125] Respondents’ submissions to adjudicator at [25] and [27].

[126] Ibid at [88(e)].

[127] Body corporate submissions to adjudicator at [91].

[128] Applicants’ submissions at [54].

[129] Applicants’ submissions at [92].

[130] Applicants’ submissions at [7].

[131]Tenacity at [29].

[132] Reasons at [63].

[133] Body corporate submissions at [31] to [34].

[134] Applicants’ submissions in reply at [72] to [74].

[135] Affidavit of Justin Miles at [17].

[136] Ibid at [45], [46].

[137] Applicants’ submissions at [54].

[138] Report Carlo Lando dated 14 April 2014.

[139] Applicants’ supplementary submissions to adjudicator.

[140] Report A D Dickinson dated 13 June 2014.

[141] Reasons at [65].

[142] Applicants’ submissions at [86].

[143] Taylor Byrne report at 6.3.

[144] Opteon report at 8.0.

[145] Reasons at [65].

[146] Respondents’ submissions to adjudicator at [135], [141], [142].

[147] BCCMA, s 271(1)(a)(ii).

[148] BCCMA, s 271(1)(a)(iii).

[149] BCCMA, s 271(6).

[150] Applicants’ submissions at [80].

[151] Applicants’ submissions at [82].

[152] Reasons at [65].

[153] Taylor Byrne report at 6.5.

[154] Applicants’ submissions at [10] to [16].

[155]Cypressvale Pty Ltd & Anor v Retail Shop Leases Tribunal [1996] 2 Qd R 462 per Fitzgerald P.

[156]Cypressvale Pty Ltd & Anor v Retail Shop Leases Tribunal [1996] 2 Qd R 462 per McPherson and Davies JJ.

[157]Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47.

Close

Editorial Notes

  • Published Case Name:

    Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors

  • Shortened Case Name:

    Miles v Body Corporate for Solarus Residential Community Titles

  • MNC:

    [2016] QCATA 130

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    14 Sep 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QCATA 13014 Sep 2016-
Notice of Appeal FiledFile Number: Appeal 10490/1612 Oct 2016-
Appeal Determined (QCA)[2017] QCA 19001 Sep 2017-

Appeal Status

Appeal Determined (QCA)

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