Lowe & Anor v Smithies[2022] QCATA 99

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr and Mrs Lowe (the appellants) appeal a decision of the Tribunal requiring them to undertake works on trees located on their land.
2. [2]
   The appellants have a property adjoining properties owned by Mr and Mrs Smithies’ and Mr and Mrs Bonomos’ (collectively referred to in these reasons as the respondents). There are a number of trees situated on the appellants’ land. The respondents say that the trees affect their land. The parties could not resolve the issues in dispute and the respondents commenced proceedings in the Tribunal. The Tribunal ordered that the appellants undertake work in respect of the trees.  The appellants have appealed the decision.

Appeal proceedings in the Tribunal

3. [3]
   An appeal to the Appeal Tribunal on a question of law is as of right.^[1]   An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal.^[2]
4. [4]
   In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.^[3]
5. [5]
   Subject to leave to appeal being granted, if an appeal is against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal.  In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.^[4]
6. [6]
   The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?; is there a reasonable prospect that the applicant will obtain substantive relief?; is leave necessary to correct a substantial injustice to the applicant caused by some error?; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?^[5]
7. [7]
   If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.^[6]

The decision under appeal

8. [8]
   Relevant to the present appeal, the learned member found as follows:

   1. (a)
      A number of lemon myrtle trees and a liquidamber tree (the trees) were situated on the appellants’ land;
   2. (b)
      The trees affected the respondents’ land by causing a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of their land by causing a severe obstruction of sunlight to windows and roof of the respondents’ homes;
   3. (c)
      In respect of the claim by the Smithies, the lemon scented myrtles caused a severe obstruction of a view that existed when the Smithies first took possession of the land;
   4. (d)
      The height of the trees should be lowered;
   5. (e)
      The height of the trees was to be reduced uniformly along the fence line between the appellants’ and the respondents’ properties to a height of approximately 500mm above the height of the fence line between the appellants’ and the Smithies’ properties with the result that the height of the trees would be approximately 700mm above the height of the fence line between the appellants’ and the Bonomos’ properties;
   6. (f)
      The height of the trees was to be thereafter maintained on an annual basis by a level 3 qualified arborist;
   7. (g)
      The appellants were to pay the costs of the tree works including the annual maintenance costs.

The grounds of appeal

9. [9]
   The grounds of appeal, though expressed in a somewhat diffuse way, may be understood as follows:

   1. (a)
      The Tribunal erred in accepting the evidence of the respondents’ arborists on the basis that they lacked appropriate qualifications;
   2. (b)
      The Tribunal failed to consider the evidence of the appellants’ or, if it did, failed to give such evidence appropriate weight;
   3. (c)
      The Tribunal failed to consider the evidence of the appellants’ arborist;
   4. (d)
      The reasons for decision contain various errors of fact, unsubstantiated assumptions, misquoted comments, and complaints;
   5. (e)
      The final orders are inconsistent with other recent Tribunal decisions;
   6. (f)
      Relevant changes since the arborists prepared their reports were not taken into consideration.

Consideration

Preliminary issue – application by the appellants to adduce fresh evidence.

10. [10]
    The appellants have applied for leave to adduce fresh evidence in the form of a report by an arborist. The appellants sought to rely upon evidence from an arborist, Daniel Oaten, in the proceedings below. The evidence of Mr Oaten will be considered as is relevant as part of the substantive appeal. The application to rely upon fresh evidence relates to additional evidence which the appellants are yet to obtain.
11. [11]
    The matters to be considered in deciding an application to rely upon fresh evidence in appeal proceedings are:

    1. (a)
       Had the party acted diligently, could the evidence have been obtained at time of the first hearing?
    2. (b)
       Is the evidence credible?
    3. (c)
       Would the evidence be likely to have had an important influence on the outcome of the proceedings?^[7]
12. [12]
    Clearly, the appellants’ had ample opportunity prior to the hearing below to obtain a report of the nature they now seek to adduce. They failed to comply with Tribunal directions to contribute to the costs of engaging an assessor. They were aware, or should have been aware, of the consequences of failing to comply with the directions. The appellants could have applied for leave to rely upon their own expert evidence. Directions made by the Tribunal on 19 December 2019 clearly permitted the Tribunal to allow further expert evidence. The appellants took no steps to advance their interests by obtaining the further expert evidence they now seek to adduce.
13. [13]
    As to whether the evidence is credible, the fact that the report has not yet been obtained precludes any consideration of its merits. It is also not possible to speculate on how the evidence might have influenced the outcome below.
14. [14]
    The appellants have failed to establish any basis upon which leave to adduce fresh evidence should be given. The application to adduce fresh evidence is refused.

The grounds of appeal.

15. [15]
    I will first address the ground of appeal relating to the evidence of the appellants’ arborist. As I have noted earlier, this evidence was obtained prior to the hearing below and is separate and distinct from the proposed further evidence the appellants have, unsuccessfully, sought to adduce.
16. [16]
    At a directions hearing on 28 November 2019 the Tribunal directed that the parties each contribute one third of the Tribunal’s total costs of engaging an assessor. The assessor, an arborist, was engaged to inspect the trees the subject of the dispute and provide a report to the Tribunal containing the arborists findings and recommendations. The parties were given until 5 December 2019 to pay their respective share of the costs of engaging the assessor. The respondents’ complied with the directions. The appellants did not. On 19 December 2019 the Tribunal made further directions requiring the appellants to pay their contribution toward the cost of the assessor by 10 January 2020. The Tribunal also directed that if the appellants’ failed to comply with the direction, the respondents would have the option of either paying the total cost of engaging an assessor or the respondents could engage their own experts. In those circumstances, the Tribunal directed that the further expert evidence (depending on the respondents’ election) would be the only expert evidence in the proceedings subject of course to any order to the contrary. The appellants did not pay their share of the costs of engaging the assessor.
17. [17]
    It is appropriate to say something about the evidence relating to this ground of appeal. The appellants sought to rely on a document prepared by Daniel Oaten. The evidence is not in the form of an expert report complying with QCAT Practice Direction No. 4 of 2009. The document does not disclose whether Mr Oaten possesses relevant qualifications of any sort. The document offers no expert opinion relating to whether and how the trees affected the respondents’ land. The document is in fact a ‘proposal form’ which refers to the thinning of a number of trees on the appellants’ land including the removal of some trees and a reduction in height of a number of trees. The purpose of the tree work is noted to be ‘to allow more light and air to pass through the shelter trees’. 
18. [18]
    The appellants complaint is that the Tribunal did not consider the document prepared by Mr Oaten. The learned member stated:

[36] The Lowes failed to comply with directions made by the Tribunal to contribute to an independent arborist report for consideration by the Tribunal.

[37] In consequence the Tribunal directed the applicants to engage their own arborist to provide reports and unless otherwise ordered the arborist reports obtained by the applicants would be the only expert evidence in the proceedings. I therefore consider only the arborist reports filed by the Smithies and the Bonomos in these matters.^[8]

19. [19]
    Although the learned member retained the discretion to consider the document prepared by Mr Oaten, he declined to do so. The series of directions to which I have referred, and the consequences thereof, could not have been clearer. The appellants can hardly now claim that they should be absolved of the consequences of their non-compliance with the directions. Had the applicants been sufficiently aggrieved by the directions they could have filed an application for leave to appeal. They did not.
20. [20]
    The procedure for a proceeding is at the discretion of the tribunal.^[9] In all proceedings, the Tribunal must, inter alia, act fairly and according to the substantial merits of the case and must observe the rules of natural justice. The directions were made regarding the engaging of an assessor in an attempt to narrow the scope of the issues in dispute. The appellants have mounted no persuasive argument as to why they were not agreeable to the engagement of an assessor. Despite ample opportunity to do so, the appellants took no steps to protect their interests including by applying to the Tribunal for leave to rely upon their own expert evidence. Now, belatedly in these appeal proceedings, the appellants realise the consequences of their actions. The learned member was entitled to proceed in accordance with the directions and to have no regard to the document prepared by Mr Oaten. But even if he had considered the document, its evidential weight was extremely limited for the reasons I have earlier identified. There was no error by the learned member.
21. [21]
    Turning to the remaining grounds of appeal, it should be noted that much of what the appellants say in their written submissions, and their oral submissions at the hearing of the appeal, reflect their general disagreement with the learned member’s findings of fact.
22. [22]
    An appeal is not an opportunity to re-argue the case at first instance. The appellants must demonstrate error on the part of the Tribunal in deciding the matter and that such error made a material difference to the outcome. 
23. [23]
    The appellants’ submissions in large part relate to the evidence about how the trees affected the respondents’ land and their enjoyment of the land. It is therefore appropriate to consider briefly the evidence as it relates to the findings by the Tribunal about the trees and their impact upon the respondents’ land and the grounds of appeal relied upon by the appellants.
24. [24]
    The evidence of Mr Smithies was that when he took possession of the land the lemon scented myrtles had not been planted although the liquidamber was present. Mr Smithies’ evidence was that the trees blocked morning sun to his dwelling causing the kitchen, family room and two rear bedrooms to be darker and colder. Mr Smithies said that the trees blocked airflow resulting in the house becoming hotter in the summer. Mr Smithies said that the height and density of the trees had blocked all views from the rear of the house across to the other side of Gympie Road which had extended to 1 kilometre to 1.5 kilometres distant. Mr Smithies gave evidence at the hearing below. Under cross examination, his evidence was: the trees blocked the airflow to the house from the northeast and the sea breezes from the east; the trees impacted both heat and light to the kitchen, family room and two bedrooms. 
25. [25]
    Mr Bonomo’s evidence was that the trees blocked views from his house of the sky, the houses below and the hill beyond. Mr Bonomo said that the trees blocked morning sunlight to the windows of the downstairs rear lounge/TV room and upstairs childrens’ bedroom resulting in cooling in the house and the need to use heaters with a commensurate increase in electricity costs. Mr Bonomo also gave evidence at the hearing below. Under cross-examination Mr Bonomo’s evidence was: the trees obstructed sunlight to the downstairs living room windows and the upstairs bedroom windows of the house resulting in a reduction in natural light and heat and increased power costs. 
26. [26]
    The Bonomos relied upon a report by Peter Mumford. Mr Mumford held a Diploma of Horticulture in Arboriculture. Mr Mumford inspected the trees. Mr Mumford identified nine lemon scented myrtles on the appellants’ land. The focus of Mr Mumford’s report was the effect of the trees on shading to the Bonomos’ courtyard and the impact of leaf litter.
27. [27]
    The Smithies relied upon a report by Tim Scott. Mr Scott held a AQF Level 8 Graduate Certificate in Arboriculture in addition to a number of other qualifications. Mr Scott undertook an inspection of the liquidamber and the nine lemon scented myrtles situated on the appellants’ land. Mr Scott was of the opinion that the views from the Smithies’ home was significantly affected by the trees as was the airflow and natural light into the home.
28. [28]
    The ground of appeal concerning the respondents’ arborists lack of appropriate qualifications relates to the evidence about the trees causing an obstruction of views, sunlight and airflow to the respondents’ homes.
29. [29]
    The respondents advised the learned member that their respective experts were available to give evidence at the hearing.  The appellants declined to cross-examine the experts. The appellants therefore did not avail themselves of the opportunity to question the experts about their qualifications to give the evidence contained in their reports. They raised no objection to the admissibility of the reports, nor did they make submissions at the hearing as to the weight to be afforded to the evidence of Mr Mumford or Mr Scott.
30. [30]
    In relation to the obstruction of sunlight to Mr Bonomo’s home, it is apparent from the evidence of Mr Mumford that he expressed no opinion about this issue. Mr Mumford’s evidence was confined to the obstruction of sunlight to external areas. It may therefore be accepted that the learned member relied upon the evidence of Mr Bonomo in making the findings about the obstruction of sunlight to the windows and roof of Mr Bonomo’s home. The learned member was entitled to accept the evidence of Mr Bonomo.
31. [31]
    Mr Scott’s evidence about the obstruction of views, sunlight and airflow relating to the Smithies’ home was somewhat brief. The appellants say that Mr Scott simply ‘parroted’ the Smithies complaints and point to reasons [39] and [43]^[10]. However, the passages to which the appellants refer were not findings by the learned member but rather a restatement of Mr Scott’s evidence. Mr Scott’s evidence was that the views from, and sunlight and airflow to, the Smithies’ home was significantly affected by the trees. This was also the evidence of Mr Smithies. It was open to the learned member to accept the evidence of Mr Scott and the Smithies. Ultimately it was a matter for the learned member as to the weight to be given to that evidence. Even if Mr Scott was not qualified to give expert evidence about these issues, and I accept that he was not, the learned member was nevertheless entitled to take the evidence into consideration as part of the overall factual matrix.
32. [32]
    There was no error by the learned member.
33. [33]
    The appellants say that the learned member failed to consider the evidence of the appellants or, if he did, failed to give such evidence appropriate weight. The learned member referred in the reasons to the evidence of the appellants and the respondents.  It was not necessary for the learned member to refer to, and analyse, every aspect of the evidence. I am satisfied that the learned member considered all of the evidence filed by the parties. The appellants’ argument is not assisted by the fact that their complaints in respect of this ground of appeal are vague. They do not identify what evidence it is said the learned member failed to consider or give appropriate weight to nor do they identify what they say the result was of any such error. This ground of appeal is not made out.
34. [34]
    The appellants say that the reasons for decision contain various errors of fact, unsubstantiated assumptions, misquoted comments, and complaints however they do not identify how these errors are said to infect the final decision. As I have earlier observed, an appeal is not an opportunity by an unhappy party to reargue their case. Error must be identified, and that error must materially affect the outcome of the proceeding at first instance. The role of the Appeal Tribunal is not to attempt to discern from diffuse arguments what an appellant might be attempting to argue. The submissions in respect of this ground of appeal are in large part an exercise by the appellants to restate the evidence below in the hope that a different outcome will be achieved. This ground of appeal is not made out.
35. [35]
    The appellants say that the final orders made below are inconsistent with other recent Tribunal decisions. There is no substance in this ground of appeal. Every case is decided by the Tribunal on its facts. There is no substance in this ground of appeal.
36. [36]
    The appellants say that relevant factual circumstances changed after the arborists prepared their reports and that these circumstances were not taken into consideration. This is said to relate to two matters: the height of the dividing fence between the appellants’ property and the Smithies’ property; and evidence relating to local fauna. Again, as with much of the appellants’ argument, it is difficult to identify just what evidence the appellants refer to. In their appeal submissions, the appellants refer to fauna living in one of the trees in November 2020 however this does not appear to have been the subject of evidence from the appellants in the proceedings below. In any event, in the absence of any comprehensible submissions, this ground of appeal is not made out.

Conclusion

37. [37]
    The appellants have not made out any of the grounds of appeal. Insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed.