Nichol v Campbell[2016] QCATA 204

APPEARANCES AND REPRESENTATION

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

REASONS FOR DECISION

1. [1]
   This is an appeal from a decision of a member of the Tribunal in a dispute about trees which obstructed Mr and Mrs Nichols’ view from their home in Tallai.
2. [2]
   Mr and Mrs Nichol purchased the property as a vacant lot in 1992.  Shortly afterwards they built a house there and moved in.  Over the ensuing years however, the view from the house became obstructed by palm trees and bamboos growing on the land of their neighbour Mr Campbell.
3. [3]
   Mr and Mrs Nichol applied to the Tribunal for an order to deal with the offending trees, but this application was dismissed by the Tribunal on 9 February 2016 after a hearing and subsequent written submissions.  They now appeal from that decision.
4. [4]
   The member dismissed the application on two bases.  The first basis disposed of the application entirely, but the member went on to consider the second basis in case she was wrong about the first.  In order to understand these bases it is necessary to set out the relevant parts of the statutory provisions in section 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld):-

2. (2)
   QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

1. (a)
   to prevent serious injury to any person; or

2. (b)
   to remedy, restrain or prevent—

1. (i)
   serious damage to the neighbour’s land or any property on the neighbour’s land; or

2. (ii)
   substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

3. (3)
   However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—

1. (a)
   the tree rises at least 2.5m above the ground; and

2. (b)
   the obstruction is—

1. (i)
   severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or

2. (ii)
   severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

5. [5]
   The first basis of the member’s decision was that since there was no dwelling on the land owned by Mr and Mrs Nichol when they took possession of it, the case could not be brought within section 66(3)(b)(ii) and no order could be made.^[1]  The member noted that such a finding had also been made in Vecchio v Papavasiliou [2015] QCAT 70 and she followed the reasoning in that case.
6. [6]
   The second basis of the member’s decision was made in the alternative, if the first basis was found to be wrong.  The second basis therefore proceeded on the assumption that it was not necessary for there to be a dwelling on the land at the time of possession for there to be a protected view under the 2011 Act.  The member therefore had to decide whether there was a substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land arising from a severe obstruction of the view.^[2]   The member found that whilst the view from the lounge room and family room from a sitting position was severely obstructed by the trees, the obstruction of the totality of the view from different parts of Mr and Mrs Nichols’ dwelling at the time of the hearing was “no more than moderate”.^[3]  This conclusion was reached after considering the evidence given at the hearing, an arborist’s report commissioned by the Tribunal, photographs from both parties and a video provided by Mr and Mrs Nichol.
7. [7]
   In deciding whether there was substantial, ongoing and unreasonable interference with the use and enjoyment of the land of Mr and Mrs Nichol the member considered whether the level of obstruction of the view would be likely to become severe in the next 12 months.^[4]  The member found that it was unlikely that this would happen.
8. [8]
   In their application for leave to appeal or appeal, Mr and Mrs Nichol said that the member’s decision was wrong because she should have found that the statutory tests were satisfied, and because previous decisions in fact support their case.  They also said that they have new and compelling evidence that shows that they are correct about this.
9. [9]
   On 31 March 2016 Mr and Mrs Nichol applied to the Appeal Tribunal for permission to present their new evidence.  Such an application was required because new evidence can only be accepted by the Appeal Tribunal if it was not reasonably available at the time the proceeding was heard and determined. Usually an applicant for leave to adduce such evidence must satisfy each of the following tests:

   1. the evidence could not have been obtained with reasonable diligence for use at the trial; 
   2. the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and  
   3. that the evidence is credible though it need not be incontrovertible.^[5]
10. [10]
    On 19 April 2016 the Appeal Tribunal refused the application for permission to present the new evidence.  On 20 July 2016 the Appeal Tribunal ordered that the new evidence should be removed from the file.
11. [11]
    This means therefore that this appeal is limited to Mr and Mrs Nichols’ first two grounds, and they cannot rely on the new evidence they would wish to put before the Appeal Tribunal.
12. [12]
    However, the submissions in support of the appeal given to the Tribunal by Mr and Mrs Nichol disclosed some further grounds of appeal.  The document is signed both by Mr Nichol and by Mrs Nichol but unfortunately uses “I” and “me” without explaining to whom this is referring.  For that reason in the summary below, we use the word “writer”.  The document is wide ranging and contains information and argument which in the light of the member’s reasons could not be relevant in this appeal.  Ignoring that information and argument, it is possible to identify from the document these further grounds of appeal which if correct, are capable of amounting to an error of law, and therefore capable of forming the basis of an appeal as of right (without requiring leave to appeal):-

A. Bias and/or unfair hearing

A1. Just before the hearing started, the member approached the writer and handed the writer a document referring to the case of Vecchio.  The member said that the writer should read it later as she felt that the writer should be aware that “views from a dwelling and not land are protected”.  This gave the writer an “inkling that the member had already made her decision to dismiss my application” making the writer feel “ambushed and unhinged” and unable to concentrate properly on the proceedings.  A lawyer later told the writer that the member’s inappropriate action had “from the onset, placed me at a disadvantage”.^[6]

A2. That the member’s remarks about keeping the view for 20 years echoed what the arborist said when visiting the property when she said to the writer’s son “you can’t expect to keep your view for over 20 years”.^[7] 

A3. Bias is shown by the member’s use of quotation marks around the words “approved structure” which indicates that the member saw fit to repeat the arborist’s insinuation that the deck had not received final certification.^[8]

A4. The writer’s son was to give crucial evidence by telephone but the member would not allow this.^[9]

A5. The member allowed herself to be heavily influenced by information from Mr Campbell about what happened in the compulsory conference.^[10]

A6. The member should have excluded the evidence of Mr Murray Duthie and Mr Rod Murray as inadmissible, because they had not been made aware of all the evidence.^[11]

A7. The member should have ejected Mr Campbell’s lawyer from the premises.^[12]

A8. Since the arborist had visited the property 10 months previously and had not viewed the video evidence of August 2015 viewed at the hearing, her evidence was out of date.  The member should have organised a viewing by the arborist by giving the arborist an online link to the writer’s video.^[13]  Mr Campbell should have provided it to the arborist who was his witness,^[14] and the member should have ensured that this was done.^[15]

B. Error applying the law or in the decision making process

B1. The member was wrong in interpreting the meaning of “possession” as when Mr and Mrs Nichol purchased the lot in August 1992.  Instead, possession did not occur until they took occupation of the dwelling in March 1993.^[16]

B2. The member did not ascertain the view at the time of possession and should have ascertained what view existed from the photographs submitted with the writer’s application.^[17]

B3. The member’s interpretation of Vecchio was inaccurate.^[18]  If an owner purchases a vacant lot intending to erect a dwelling to take advantage of the view, this is a protected view under section 66(3)(b)(ii).^[19]

B4. The member was wrong in interpreting the meaning of “severe” in section 66(3)(b)(ii).  She should have followed the view of the Attorney-General referred to in Fraser v Johnson (NDR215-13), that “The severity threshold requires that a view must be nearly blocked out.  Within this context, it would appear that use of the word ‘severe’ in s 66 of the Act means the obstruction must be considerable”.^[20]

C. Making the wrong order

Having decided that no order could be made to remove the palm trees and bamboos, the member should have considered the arborist’s option 2, which suggested removal of some of the palms now and all remaining palms within 5 years, with height maintenance of the bamboos.^[21]

13. [13]
    Dealing with each of these grounds in turn:-

Ground A1

14. [14]
    It is said that before the hearing started, the member approached the writer of the submissions, handed the writer a document referring to Vecchio and said “views from a dwelling and not land are protected”.  The suggestion appears to be that in this way, the member communicated with one side (and not the other) prior to the hearing.  It can be seen from the transcript however, that at the beginning of the hearing, the member went carefully through the issues she would need to decide.  She gave each party a copy of the appeal decision Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247.  She explained that she was doing this because Mr and Mrs Nichol in their application to the Tribunal had submitted a copy of Kokkinos v Laing [2012] QCAT 580 and she wanted to ensure that both sides were aware that there was a decision on appeal in that case.  She then explained what was said by the Appeal Tribunal in that case, which were the tests which she needed to apply.
15. [15]
    The member then discussed with the parties the question whether there was a view which was protected under the Act bearing in mind that Mr and Mrs Nichol had purchased a vacant lot and had built a dwelling on it.  The member then gave each party a copy of Vecchio v Papavasiliou [2015] QCAT 70 and carefully explained what it said.  There is then this passage in the transcript referring to the decision in Vecchio (the member having explained that the case referred to discussions about whether the hedge was there when the land was purchased):-^[22]

but then at paragraph 10, the Tribunal said:

The debate about the pre-existing vegetation is, however, an arid one.  There is no general right to a view in Queensland.

And that’s accepted in all of the decisions, you’ll see, and then it mentions that the Act creates a limited exception to that principle:

Therefore, the right to a view must be considered according to the terms of the Act.  Section 66(3)(b)(ii) creates a right to a view from a dwelling that existed at the time the neighbour took possession of the land.  If there was no dwelling at the time the neighbour took possession of the land, then there was no view that is protected by the Act.

And then she goes on:

Therefore, when Mr Vecchio took possession of the land, because there was no house, there was no view capable of protection.  Mr Vecchio cannot now seek the Tribunal’s assistance to reclaim a view he never had.

So that is a Tribunal decision in recent times.  Now I wanted to bring that to your attention at the outset so that you’re aware that that’s another case that I will be considering.  In that case, you’ll see that the Tribunal did go on to make some orders in terms of the pruning of the hedge, but that was to do with the obstruction of some items as opposed to the view issue.

So is there anything that the parties want to ask me, Mrs Nichol, first of all, arising out of what I’ve told you before we proceed?

16. [16]
    It is clear from the transcript that the member did not approach either Mr Nichol or Mrs Nichol before the hearing and hand them a document referring to the Vecchio case and talk to them about it as they say.  The discussions all happened after the hearing had commenced, and were perfectly proper.
17. [17]
    In so far as it might be suggested that the way the member dealt with the matter made Mr Nichol or Mrs Nichol lose confidence in their case, this could not be avoided.  The member was correct to ensure the issues were clear to the parties.  It gave the parties an opportunity to understand those issues and to address them.  The member was obliged by statute to take all reasonable steps to ensure that each party understood the nature of the assertions made in the proceeding and the legal implications of the assertion and any decision of the Tribunal relating to the proceeding.^[23]

Ground A2

18. [18]
    It is said that the member echoed the remarks of the arborist about the reasonableness of being able to keep a view for 20 years.  The implication is that the member was biased in favour of the arborist’s opinion.
19. [19]
    This appears to be a reference to this passage in the member’s reasons:-^[24]

It is clear that other naturally occurring vegetation has obstructed the pre-existing view over time to the south east and to the east. Some of that vegetation is not on Mr Campbell’s land. The Tribunal accepts Ms Allen’s opinion that it is not reasonable to expect that native trees would be removed or maintained to provide a clear view of distant horizons.  The Tribunal considers it unreasonable that after the passage of more than 20 years, Mr and Mrs Nichol’s pre-existing view should now be protected to the extent it existed when they took possession of the land, unobstructed by not only the trees in dispute but the naturally occurring vegetation that has grown over that time.

20. [20]
    Just because the member finds an expert’s opinion on a certain matter persuasive does not mean that the process has been unfair.  The member is required to decide the matter and inevitably, this will involve reaching a conclusion in order to resolve the application.

Ground A3

21. [21]
    It is said that bias is shown by the member’s use of quotation marks around the words “approved structure” as the arborist had done.  We do not think that the quotation marks were used by the arborist or by the member to imply that the structure did not have final certification.  Instead, the reference to “approved structure” appears to be a reference to the requirement of the Gold Coast City Council that in order to be able to remove a tree on land less than 8,000 square metres without requiring formal approval, the tree must be less than 3 metres from an “approved building”.  This is a reference to approval under the Building Act 1975 (Qld).

Ground A4

22. [22]
    It is said that Mr and Mrs Nichols’ son was to give crucial evidence by telephone but the member would not allow this. 
23. [23]
    There had been a directions hearing which listed those witnesses who were to attend the hearing by telephone.  The day before the hearing, Mrs Nichol sent an email to the Tribunal saying that her son was unable to attend the hearing and needed to attend by telephone.  Soon after the start of the hearing, the member discussed with the parties about the witnesses they wished to call and the evidence they were to give.  She explained that some of the evidence appeared not to be relevant to the issues. 
24. [24]
    There was a discussion between the member and Mrs Nichol about her son’s evidence.  Mrs Nichol explained that her son would need to give evidence by telephone.  The member expressed concern that the statement submitted by the son was not relevant to the issues.^[25]  When the member asked Mrs Nichol what she was calling her son to say, Mrs Nichol explained it was to confirm that an offer was made to Mr Campbell.  The member explained that this would not be relevant and gave Mrs Nichol an opportunity to read his statement again and to say whether any part of it was in fact relevant.  Mrs Nichol agreed that none of it was relevant and agreed that there was no need to call her son after all.^[26]
25. [25]
    In these circumstances, there is no justified criticism of the way the member handled this matter.

Ground A5

26. [26]
    It is said that the member was heavily influenced by information from Mr Campbell about what happened in the compulsory conference. 
27. [27]
    Before any evidence was given in the hearing, the member explained clearly her approach to this.  She said:-^[27]

And certainly anything that was arising out of the compulsory conference is confidential and not something that I should be taking into account or will be taking into account.

28. [28]
    Mrs Nichol understood this.  There was an exchange between Mrs Nichol and the member after her opening statement where the member explained that any information about what happened in the compulsory conference was irrelevant.  This was accepted by Mrs Nichol.^[28]
29. [29]
    Mr Campbell also understood this.  He tried to inform the member about an offer he had made but the member refused to hear this.^[29]  Later, he said to the member:-^[30]

I do have a few comments in regards to Mrs Nichol’s comments in regards to prior offers, but you don’t want to hear about that.  We’ll leave that out today.

30. [30]
    The member agreed with that approach.
31. [31]
    Apart from the need, as the member said in her reasons, to be satisfied that the parties had made a reasonable effort to reach agreement as required by section 65 of the Act, the content of the offers was irrelevant to the issues to be decided.  There is nothing in the reasons to suggest that anything about what happened in the compulsory conference played any part in the decision.

Ground A6

32. [32]
    It is said that the evidence of Mr Duthie and Mr Murray should have been excluded because they had not been made aware of all the evidence.  These witnesses were real estate agents who said that the value of Mr and Mrs Nichols’ property was not affected by the presence of the palm trees on Mr Campbell’s land. 
33. [33]
    It clear from the member’s reasons that the evidence about valuation did not influence her one way or the other, a view she also expressed at the hearing.^[31]
34. [34]
    In any case, opinion evidence would not normally be excluded merely because it appears to the other side that it is based on incorrect facts.  Mr and Mrs Nichol had an opportunity to cross-examine both of these witnesses and spent some time doing so.^[32]

Ground A7

35. [35]
    It is said that the member should have ejected Mr Campbell’s lawyer from the premises.  In the hearing Mr Campbell was not represented by a lawyer, and no leave to be represented had been given.  The hearing was however, open to the public and it would appear that Mr Campbell’s lawyer may have been present as an observer.
36. [36]
    In the afternoon of the hearing an unidentified speaker sitting in the back of the Tribunal room sought to make an observation.  The member refused to hear from the person.^[33]  Later in the afternoon when Mr Edwards was giving evidence, it would appear that the person handed Mr Campbell a piece of paper.  The member required this to be handed back to the person and then gave the person a final warning that as an observer he was not permitted to take part in the proceedings and that if he did it again he would be excluded from the room.^[34]
37. [37]
    There is nothing to suggest that the presence of the observer, and these interventions, affected the ability of Mr and Mrs Nichol to present their case, or assisted Mr Campbell to present his, or affected the decision reached by the member.  In the circumstances, what happened did not result in an unfair hearing.

Ground A8

38. [38]
    It is said that since the arborist’s evidence was old, she should have been required to view the video which was much more recent.  When Mrs Nichol cross-examined the arborist, she told her that the trees had grown considerably since the inspection, which was 9 months before, something which the arborist accepted.^[35]  It was clear from the arborist’s evidence that her opinion that the obstruction was mild was based on the inspection 9 months before.^[36]  The member asked the arborist whether her opinion would be any different 12 months on, and the arborist thought that the bamboos would have obstructed the view further but not the palm trees.^[37]
39. [39]
    Neither side asked that the arborist should look at the video and the member did not suggest that either.  There was a practical difficulty in asking the arborist to view the video, because she was not in her office and was on the telephone.  Even if it could have been done, it is doubtful that it would have had any effect on the outcome of the case because the ultimate decision on the question of severity was that of the member.
40. [40]
    It is clear from the member’s reasons that the video was taken into account by the member, as were the photographs in the arborists report, and photographs submitted by both sides. 
41. [41]
    The member noted that it was Mr and Mrs Nichols’ case that the view was at the time of the hearing more obstructed than at the time of the arborist’s inspection.^[38]  It is clear from the member’s reasons that she reached a decision about the severity of the obstruction of the view from all the evidence and did not simply rely on the arborist’s opinion on the matter.  In the circumstances, no prejudice can be demonstrated by not ensuring that the arborist’s opinion about the severity of the obstruction as shown by the video was obtained.

Ground B1

42. [42]
    It is said that the date of possession in the Act means the date of occupation of a house built on the land.
43. [43]
    In our opinion, there is nothing in the words of section 66(3)(b)(ii) taken in their statutory context which means they should be read in a different way from that expressed.  In law a person takes possession of land when they are entitled to rents and profits from the land and in this case, this would be when Mr and Mrs Nichol purchased the lot.

Ground B2

44. [44]
    It is said that the member did not ascertain the view at the time of possession and should have used the photographs submitted by Mr or Mrs Nichol to assess this.
45. [45]
    It is clear from a number of passages in the decision that the member was very aware that the view at the time Mr and Mrs Nichol took possession needed to be understood (assuming it was protected at all, bearing in mind the decision in Vecchio).^[39]  It is also clear from the decision that the member took into account all the available relevant evidence to decide that issue.

Ground B3

46. [46]
    It is said that the member’s interpretation of Vecchio was inaccurate, and it was sufficient if an owner purchased a vacant lot with the intention to erect a dwelling to take advantage of the view.  Then the view would be protected once the dwelling were built.
47. [47]
    This ground of appeal requires an examination of the words of section 66(3)(b)(ii).  Unfortunately, the way the paragraph is constructed, on first reading it is unclear whether the word “that” in the phrase “that existed” refers back to “view” or “dwelling” or to both of those words.
48. [48]
    In our opinion, it is clear from the construction of the paragraph that the view must be from a dwelling.  This leaves two possible constructions of the paragraph:-

    1. a dwelling must have been there when taking possession; and the view which is now the subject of proceedings is the view from that dwelling even if the view was not there at the time of taking possession;
    2. the view which is now the subject of proceedings is a view which was there when taking possession, that view being from a dwelling which was there when taking possession.
49. [49]
    There is no guidance on the meaning of section 66(3)(b)(ii) available from the explanatory notes published when the bill was passing through Parliament, nor from the Parliamentary Debates.
50. [50]
    Meaning (a) would protect views which were not present when the owner purchased the land but which became present later.  But this would mean that it would protect views which happened temporarily, for example an improved view arising from the demolition of a neighbouring tower block prior to it being rebuilt.  We do not think this could be the objective intention of the legislature.
51. [51]
    It follows that the protected view under section 66(3)(b)(ii) is that which could be seen from a dwelling (if there was one) on the land at the time when possession of the land was taken.  If there was no dwelling on the land at the time of possession then there is no protected view.
52. [52]
    This means that the member was right to follow Vecchio v Papavasiliou [2015] QCAT 70 and to dismiss the application brought by Mr and Mrs Nichol because there was no dwelling on the land when they purchased the lot.
53. [53]
    This ground of appeal therefore also fails.

Ground B4

54. [54]
    The member followed the Appeal Tribunal’s decision in Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 which considered the meaning of the word “severe” in the relevant statutory context, and was also assisted by a New South Wales Land and Environment Court decision in Haindl v Daisch [2011] NSWLEC 1145.  We see nothing wrong in the way the member directed herself in this respect.

Ground C

55. [55]
    It is said that instead of dismissing the application, the member should have made an order for the maintenance of the trees. 
56. [56]
    However, since the member correctly found that the application did not fall under section 66, the member was then unable to make any orders at all, except to dismiss the application.

Other grounds of appeal

57. [57]
    The appeal submissions include a generalised contention that given the evidence before the member at the hearing, together with the new evidence which Mr and Mrs Nicol would like to submit, the member should have reached a different conclusion.   It is said that the member should have found that that there was a substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land arising from a severe obstruction of the view.
58. [58]
    The member’s decision on this issue was a finding of fact.  Appeals against findings of fact cannot be made as of right.  Instead, the Appeal Tribunal’s leave to appeal is required.^[40]  In this type of case, leave to appeal will only be given where it can be reasonably argued that an order should be made on appeal to correct an error in the original decision which has caused substantial injustice.
59. [59]
    Effectively the Appeal Tribunal will not give leave to appeal and reverse such factual findings unless there has been a clear mistake by the decision maker.  The member’s finding was clearly open to her.  An appeal is not an opportunity to try to have a matter reheard or to try to persuade the Tribunal to reach a different conclusion in the absence of a clear mistake.
60. [60]
    In circumstances, the appeal is dismissed and in so far as leave to appeal is required, this is refused.