Wiseman v RPD Qld Pty Ltd A.C.N. 087696080
[2018] QCATA 184
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- Wiseman v RPD Qld Pty Ltd A.C.N. 087696080[2018] QCATA 184
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Wiseman v RPD Qld Pty Ltd A.C.N. 087696080[2018] QCATA 184
Wiseman v RPD Qld Pty Ltd A.C.N. 087696080[2018] QCATA 184
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wiseman, Matthews v RPD Qld Pty Ltd A.C.N. 087696080 [2018] QCATA 184 |
PARTIES: | ROBIN WISEMAN PETER MATTHEWS (applicant/appellant) |
v | |
RPD QLD PTY LTD A.C.N. 087696080 (respondent) | |
APPLICATION NO/S: | APL114-17 |
ORIGINATING APPLICATION NO/S: | NDR131-15 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 22 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody |
ORDERS: |
“The 5 Harpulia pendula trees on the eastern boundary of the tree-keepers land be reduced in height to 6 metres from the ground level of each tree (the works)”. |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – NEIGHBOURHOOD TREES AND FENCES – where the tribunal ordered a line of Queensland Tulip trees on the eastern boundary of a tree-keepers land to be reduced to 6 metres – where the trees at their current height cause a severe obstruction to the view the applicants enjoyed when they took possession – where the applicants claim the tribunal order has the practical effect of restoring only part of a protected view – whether the tribunal incorrectly applied view sharing principles that make the maintenance of sitting views hard to justify in development cases – where the tribunal failed to consider the appropriateness of reinstating the applicants’ sitting verandah views – where the tribunal’s tree order discretion miscarried Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 66, 70, 73 House v The King (1936) 55 CLR 499 Laing v Kokkinos (No 2) [2013] QCATA 247 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 |
APPEARANCES: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The appellants challenge the validity of a tree order made under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Trees Act) on grounds (a)-(f) in Part C of Attachment 1 to the Form 39.
The context
- [2]The parties are neighbours in Adelaide St and Adelaide St East, Clayfield.
- [3]The applicants inherited sitting and standing views from the north-eastern side of their verandah to Moreton Bay (the protected view)[1] on settlement in 2008.
- [4]A row of Queensland Tulip trees between the parties’ properties obscures the protected view above 6 metres. The last time the trees were at that height was 10 June 2014.[2] They were 8 – 9 metres tall at the hearing date.
- [5]The applicants initially sought a reduction to 4 metres every 6 months but are willing to accept a height of 4.5 metres but no evidence was presented at the hearing (or was allowed on appeal) as to why it is necessary to reduce the trees lower than 6 metres to regain the protected view.
- [6]The respondent is not opposed to regular pruning per se but is against lowering the trees as far as 6 metres because it makes them “hedge like” and, based on hearsay, is potentially detrimental to their health.[3]
- [7]The tribunal concluded that the tree line needed to be kept above 6 metres in line with the arborist’s recommendation of 6 – 7 metres.[4] To preserve the amenity and privacy the trees provide the respondent[5] and avoid the cost and adverse effects of over pruning (in terms of both severity and frequency) it ordered the height of the trees be reduced to 6.5 metres from ground level by annual trimming based on the reasonable assumption that new growth in 1 year would not exceed 0.5 metres.[6]
- [8]The order has the practical effect of restoring the applicants’ standing vista only.
The rival positions
- [9]The applicants claim that the tribunal made relevancy and evaluation errors when balancing the respondent’s privacy rights and their amenity interests. They argue that due to the estimated rate of regrowth, trimming to 6.5 metres will only partly restore the protected view for a 4 month window, whereas a reduction to 4.5 metres would reinstate their enjoyment of all of it for most of the year.
- [10]There is also a subsidiary complaint about the fairness of the tribunal’s hearing procedures based on its reliance on photographs to inform itself instead of by site inspection.
- [11]The respondent opposes the appeal as a covert attempt to achieve a better overall view than was conveyed with the title to the property in the first place.
The nature of the appeal
- [12]The proper characterisation of the question to be answered on appeal is critical because it determines the powers and the procedures for the proceeding.[7]
- [13]Appeals are remedial. Vitiating error is a precondition to relief. Except in specified proceedings a party has a statutory right to appeal on any question of law without leave. A ground criticising the statement of a legal rule, principle, standard, test or consequence usually raises a question of law. So too does a misapplication of the law to the facts, findings or inferences based on no evidence or in the face of compelling evidence to the contrary, giving weight to matters extraneous to the purpose of a discretion, overlooking or ignoring relevant evidence and failing to adequately consider the merits as opposed to the relative strength of the supporting evidence. Disagreement with the tribunal on a question of law is decisive because there can only ever be one possibly correct answer.
- [14]Under s 146 QCAT Act the appeal tribunal is limited to confirming, amending, setting aside and substituting or remitting the decision for reconsideration of the facts and law.
- [15]Facts appeals or on mixed questions, by contrast, require leave[8] and must be decided by way of rehearing under s 147(2) on the same or additional evidence.[9] In principle the leave discretion is unfettered but in practice the applicant ordinarily has the onus of demonstrating a better than arguable case of vitiating error but the appeal tribunal may additionally consider whether correcting the error might reasonably produce any better result in the proceeding for the applicant or there is an important question of principle at stake.[10]
- [16]When leave is a precondition to an appeal, one made without having obtained it is incompetent but it is obviously unfair to the applicant to apply leave tests in a proceeding that can be brought as of right.
- [17]Where the grounds raise questions of law and fact, or both, the right of appeal on the former is not limited or lost by the requirement for leave as to the latter.[11]
- [18]Errors of fact are conclusions affected by mistakes in comprehending, understanding, stating or evaluating evidence or the meaning of a common word or simple phrases. Because facts are really only reasoned opinions about what probably happened even doubtful findings or inferences reasonably open on the evidence (including any additional material admitted in the appeal) will not generally be disturbed on appeal[12] especially if they are credibility based.
- [19]Whether the evidentiary facts satisfy a statutory meaning or description (the ultimate ‘legal’ fact) is either a mixed question or one of pure fact unless the description is complex or technical in which case it is a question of law.[13] In other words, a mixed question arises when a conclusion of law depends on findings of fact or vice versa; that is, when the legal consequences are fact dependant. Thus, where a stated ground challenges a finding in a tree case that a protected view was severely obstructed it raises mixed question of law (whether the right test was applied) and a question of fact (whether the findings were reasonably open).
- [20]A rehearing may also be necessary or justified where some facts on which the legal consequences depend have not been the subject of evidence or findings below.
- [21]As the findings of fact or inferences are not challenged (e.g. for irrationality) the only possible appeal question is a legal one; that is, whether the tribunal’s order is affected by any error of principle or other defect identified by the High Court in House v The King.[14]
- [22]Accordingly, leave is not required and there is no scope for deciding any appeal by rehearing “on the papers” as the parties contend.
The views discretion
- [23]The common law does not recognise scenery as an interest in land worth preserving even when the cost and inconvenience of doing so is minimal.[15] Nor, historically, has it regarded privacy as a right to be protected against invasion or unwanted outside intrusion,[16] including by overlooking neighbours.
- [24]The Trees Act, however, is premised on the acceptance of the proposition that, subject to competing privacy and other issues, the continued enjoyment of a pre-existing view is an attribute of the ownership of land capable of being legally protected against the failure of a tree keeper (in this case the respondent) to ensure that trees do no unduly affect neighbouring land[17] bearing in mind that:
“… (t)rees on suburban residential allotments contribute significantly to their amenity and that of the surrounding neighbourhood. Their value is not merely aesthetic in nature, although that is obviously important in itself. As well as providing shade and shelter, they can act as wind breaks, help retain soil, provide or improve privacy and attract birds and other wildlife.”[18]
- [25]
- [26]QCAT’s power to make orders it considers appropriate in relation to a tree (or trees) affecting neighbouring land is conferred by s 66 of the Trees Act:
(2)(b)to… remedy, restrain or prevent—
(ii)substantial, ongoing and unreasonable interference with the use and enjoyment of the (applicant’s) land;
(3)… that is an obstruction of … a view (but) only if (it is a)—
(b)(ii)severe obstruction of a view, from (their) dwelling … that existed when (they) took possession of the (neighbouring) land.
- [27]When engaged the discretion is exercised according to whether the balance of the mandatory and any other relevant matters in Ch 3, Pt 5, Div 4 of the Trees Act leads to the conclusion that overall taking appropriate remedial, restraining or protective action is preferable to doing nothing.
- [28]General matters for the tribunal’s consideration in deciding an application for a tree order under s 66 are stated in s 73 of the Trees Act.[22] Any contribution a tree affecting neighbouring land makes to the amenity of the land it stands on, including to privacy and garden design, is one of them.[23] So too is the likely impact of maintaining it at a particular height, width or shape.[24] Other factors that may be taken into account, where, as here, interference that is the severe obstruction to a protected view is alleged, are listed in s 75. However, neither section restricts the range of factors QCAT may give weight to in the assessment process beyond the requirements of relevance and reasonableness.[25]
The forensic concepts
- [29]Whether land is affected by a tree is a question of fact and degree depending on the tribunal being reasonably satisfied that the tree has caused, is causing, or within the next 12 months is likely to cause substantial, ongoing and unreasonable interference with the use and enjoyment of neighbouring land.[26]
- [30]The protected view is “a view from a dwelling house” when possession was taken. It is the undivided panorama not a selected snapshot.[27]
- [31]The nature, extent and value of a protected view cannot be identified in the abstract. Both natural and built, close and distant, elements form part of it.
- [32]As Haindl v Daisch explains[28] a view is comprised of multiple aspects and elements making up the totality of the outlook from wherever it can be seen from including at standing or sitting positions.
- [33]The rural or urban nature of the locality, the overall difference between the current or lost view, the “social utility” of the obstruction e.g. its privacy, amenity and environmental value and the cost and other consequences of removing the obstruction will also commonly be relevant.[29]
- [34]A severe obstruction of a protected view is a specific and common example of a substantial, ongoing and unreasonable interference with use and enjoyment.
- [35]Severity is a contextual qualitative and quantitative concept. Thus, a moderately significant obstruction might be severe in one context (e.g. where a view comprising a “predominately unrelieved outlook” with distant attractive elements (whether iconic or not) from a narrow view from a limited observation platform are obstructed) but not in another (e.g. a 180° uninterrupted vista of coastline).[30]
- [36]In the New South Wales Land and Environment Court matter of Wood v Bergman[31]the Court expressed the opinion that for a filtered deck view through palm trees to be severe:
“… the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.”[32]
- [37]The degree of impact of an obstruction is assessed as it relates to the totality of the protected view not to separate “slices” and, therefore, it is preferable and more instructive to describe it as negligible, minor, moderate, severe or devastating rather than estimating the loss at say 20% if it includes one of the sails of the Opera House.[33]
- [38]In Tenacity Consulting Pty Ltd v Warringah Council[34] (Tenacity) a developer appealed against a refusal of a planning application based on a finding that the impact on the privacy and views of the neighbours was unacceptable or not. The code required the proposed building to reasonably share existing views by not taking too much of it away for its own enjoyment.[35] The height of the proposed development would have destroyed or substantially reduced “magnificent” Manly Beach views from sitting and standing positions in an adjoining apartment.
- [39]To test the view-sharing proposal the court identified the nature of an affected view by reference to its intrinsic (partly subjective and partly objective) value (i.e. iconic and partial ocean views are generally more valuable than conventional full rural views, although this is contestable)[36] and then considered the perspective or viewing position (i.e. side views more difficult to protect than rear or front vistas and sitting views more difficult to protect than standing views) noting that the “…expectation to retain side views and sitting views (in a view sharing context at least) is often unrealistic”[37] and finally (so far as is relevant) qualitatively assessed the overall impact of the interference to the view on the amenity as a whole not just for the affected view (e.g. kitchen views are more significant and valued than from service areas or guest rooms because people spend more time in them).[38]
- [40]To recap, by contrast with Tenacity, the tribunal has power to make appropriate remedial, restraining or preventive orders where a neighbouring tree affects land by severely obstructing a protected view but not otherwise.
- [41]Appropriateness is a situationally determined subjective fact or matter of opinion. The determinants include the subject matter, scope and intended purpose of the statutory source of power, why the discretion is conferred, any express or implied controls on its scope or exercise, established legal principles, policies and procedures, mandated considerations, guidelines and standard decision-making concepts and criteria i.e. rationality, fairness and reasonableness (or proportionality). In this indefinite realm honest, reasonable and informed minds can choose different and contestable, even opposite, options with neither being plainly wrong nor demonstrably right in the eyes of the law.
- [42]An order will not be legally capable of being considered appropriate if it is objectively unreasonable or designed to achieve extraneous ends.[39] There is no power, for instance, to enlarge or improve on the protected view.
The appellable error
- [43]The evidence based choice of remedies available to the tribunal in the circumstances of this case ranged from fully restoring the applicants’ protected view without bettering it to reinstating only part of it. The difference in terms of height was ½ a metre; that is, either 6 metres or 6.5 metres. The tribunal preferred the latter alternative and made an order with the intended and practical effect of lowering the trees enough to remove the obstruction to the standing but not sitting view but no further.
- [44]It did not choose this option because of any statutory consideration such as the health of the trees or to meet the respondent’s reasonable privacy needs but on the basis of a suggested general policy derived from the appeal tribunal’s decision in Laing v Kokkinos (No 2)[40] (Laing) that reinstating sitting views is “hard to justify.”[41]
- [45]The applicants in Laing had partial sitting views to the ocean from the back deck (V1) of the same nature as, but more obscured than, the standing views from the same site and adjoining kitchen area (V2). By 2010 the views from V1 and V2 were almost blocked out by 4 – 5 metre high privacy trees.
- [46]The tribunal ordered a reduction to 3 metres to restore the view without invading the privacy of the neighbours on the basis that the view of the ocean was obstructed by 50%.
- [47]The work order was varied on appeal by 0.8 metres[42] thus depriving the applicants of their sitting views of the ocean because the tribunal had “… erred in the way (it) assessed whether there was a severe obstruction of a view”[43] by, contrary to the correct legal principles, not considering “… the totality of what could be seen from the viewing locations (V1 and V2), but, rather sliced up that outlook and only assessed the obstruction to the partial ocean views …”[44]
- [48]
- [49]With all due respect, I profoundly disagree with taking that approach here.
- [50]It may well be that sitting views are harder to protect than standing views from the same vantage point in a development planning context where the inquiry is about how much of an existing view it is reasonable for an new building to take away from an old one for the enjoyment of its owners or, put another way, how much of the view old residents can reasonably expect to keep, but these parties are not competing with each other for a reasonable share of the same view as those in Tenacity were.
- [51]To the contrary, the respondent’s interest in maintaining the status quo or, at least, keeping the trees at 6 metres to give effect to its privacy rights is in competition with the applicants’ right to retain the protected views as part of the overall amenity and enjoyment of their land.
- [52]The functional purpose of the discretion is to relieve against severe obstruction to a protected view. Whether the views are sitting or standing may be relevant when valuing the nature and extent of the protected view and assessing how severe the obstruction is but it is not the paramount or overriding consideration in answering the question of how to appropriately balance the applicants’ interest in enjoying the protected view as part of the use and amenity of their land against the respondent’s rival privacy rights. This is a question of fact and degree to be answered by reference to the statutory guidelines. The available possibilities will be to do nothing or restore the protected view, partially or fully, according to the terms of a work order. Once the land is affected by a tree “reasonableness” is not relevant except in a general way as a control on the “appropriateness” of an order.
- [53]Prima facie, protected sitting and standing views from a dwelling have equal – not differential – protection under the Trees Act and a form of relief that does not reflect that is not fair or just, even if it is perfectly reasonable, because it does not accord with substantial merits of the case.
- [54]
- [55]Subject to that obligation the extent to which the practices and procedures applying to courts are adopted is up to the tribunal conducting the hearing.[49] A combined reading of these provisions makes it clear that QCAT is not bound to follow its own decisions, and, while it should not do so lightly, it should depart from past decisions of another tribunal, even one constituted by a current or former President, if the facts warrant a different result or adopting the same reasoning will lead to substantial injustice in a particular case.
- [56]There are no ss 65, 66, 70(2), 72, 73 and 75 findings of the tribunal altering that position.
- [57]The appeal tribunal should therefore correct the identified error by allowing the appeal, and, based on the tribunal’s finding of fact, vary the work order by replacing 6.5 metres with 6 metres.
- [58]The two other grounds raised by the applicants need to be disposed of for completeness.
The irrelevancy ground
- [59]Contrary to the applicants’ contention the respondents’ privacy was squarely raised as an issue in Exhibit 7.
- [60]The tribunal obviously accepted uncontradicted evidence that the trees preserve the privacy and amenity of the respondent’s property “by shielding the windows of the house and the rear yard … including the pool and the tennis court area, from overlooking by adjacent and nearby neighbours”.[50]
- [61]While taking an irrelevant consideration into account is an error, giving more relative weight to a relevant one than the losing side likes does not raise a question of law (unless the result was not reasonably open) or the order was objectively unreasonable in the sense that it is outside the range of reasonable probability.
- [62]This ground fails because no reasoning or other discretionary error in need of correction has been demonstrated.
The procedural ground
- [63]In conducting contested hearings the tribunal must act fairly and according to the substantial merits of the case.[51]
- [64]The tribunal may inform itself for fact finding purposes in any way it considers appropriate and must ensure, so far as is practicable, that all relevant material is disclosed to enable it to make a decision with all relevant facts.[52] Otherwise there is a broad regulatory choice over hearing procedures.
- [65]It is arguably best practice to conduct site views in tree cases where the context of outlooks, aspects and elements of the view in issue are in dispute or hard to appreciate from looking at plans and photographs. That said, there is no allegation or reason for supposing that in electing not to inform itself in this way[53] the tribunal inhibited its ability to hear and decide the issues on their merits with all the relevant facts[54] nor that it acted irrationally or unreasonably.
- [66]Ironically, the view the tribunal conducted in Laing did not save its finding of fact from being overturned by the appeal tribunal.
- [67]This ground lacks merit.
Footnotes
[1]Wiseman & Matthews v RPD Qld Pty Ltd [2017] QCAT 81 [34].
[2] Ibid [44]-[45], [54]-[55].
[3] Ms Catelan’s hearing affidavit, 6 July 2016, [56]-[57].
[4]Wiseman & Matthews v RPD Qld Pty Ltd [2017] QCAT 81 [55], [57].
[5] Ibid [57].
[6] Ibid [34]; Exhibit 1.
[7]Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
[8] QCAT Act s 142(3)(b).
[9] The role of a court of appeal conducting an appeal by way of rehearing is to decide if the decision in issue is wrong. The High Court explained in Robinson Helicopter Company Inc v McDermott [2016] HCA 22 at [43] that the task involves:
… a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. (Footnotes omitted.)
[10]McDonald v QPS [2017] QCA 255 [23]-[28].
[11]Seymour v Racing Queensland Ltd [2013] QCATA 179.
[12]Fox v Percy (2003) 214 CLR 118.
[13] Cf. Hope v Bathurst City Council (1980) 144 CLR 1, 7.
[14] (1936) 55 CLR 499, 505.
[15]Kent & Ors v Johnson, Minister of State for Works & Ors (1973) 2 ACTR 1, 30.
[16]Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, 496, 507.
[17] Trees Act ss 41(2)(c), 44, 46(a)(ii)(C), 52(2)(c), 59, 60(2), 61.
[18]Graham & Ors v Welch [2012] QCA 282 [1]-[2].
[19] Trees Act s 61.
[20] Trees Act ss 41(2)(c), 44, 59, 60(2), 61.
[21] Or two or more trees: Trees Act s 44.
[22] Trees Act s 66(1).
[23] Trees Act s 73(1)(g).
[24] Trees Act s 73(1)(j).
[25] Trees Act s 70.
[26] Trees Act ss 46(a)(ii)(C).
[27]Haindl v Daisch [2011] NSWLEC 1145.
[28] Ibid [64], [69].
[29] See J Gillespie, ‘Private Nuisance as a Means of Protecting Views from Obstruction’ (1989) Environment and Planning Law Journal 94.
[30]Haindl v Daisch [2011] NSWLEC 1145 [64]; Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 [28].
[31] [2011] NSWLEC 1068.
[32] Ibid [20].
[33]Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 [28].
[34] [2004] NSWLEC 140 (Tenacity).
[35] Tenacity [25].
[36] Tenacity [26].
[37] Tenacity [27].
[38] Tenacity [28].
[39]Swan Hill Corporation v Bradbury (1937) 56 CLR 746, 757-58.
[40] [2013] QCATA 247.
[41]Wiseman & Matthews v RPD Qld Pty Ltd [2017] QCAT 81 [55].
[42] Laing [42], [46].
[43] Laing [42].
[44] Laing [46]-[47].
[45] Laing [55].
[46] Laing [64].
[47] QCAT Act ss 3-4.
[48] QCAT Act s 28(2).
[49] QCAT Act s 28(1), (3)(b).
[50]Wiseman & Matthews v RPD Qld Pty Ltd [2017] QCAT 81 [49], [53].
[51] QCAT Act s 28(2).
[52] QCAT Act s 28(3)(c), 28(3)(e).
[53] QCAT Act s 28(1), (3)(b), (c).
[54] QCAT Act s 28(2), (3)(e).