Butteriss v Kershaw [2024] QCAT 296

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Butteriss v Kershaw [2024] QCAT 296 PARTIES: JOHN FREDERICK BUTTERISS (applicant) JULIEANNE MAREE BUTTERISS (applicant) v NEIL KERSHAW (respondent) MICHELE ANNE KERSHAW (respondent) APPLICATION NO/S: NDR151-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 19 July 2024 HEARING DATE: 22 March 2024 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: The registered owner/s of lot 1, 52 Keppel Street Emu Park shall arrange for all those trees/vegetation situated thereon to be pruned/trimmed to a height of 2.5 metres so as to restore/maintain fully the ocean view from the mid- level of the three story dwelling on lot 3, 33 Ferguson Street Emu Park subject only to trees/vegetation in between the mid-section of the backyard area of lot 1, 52 Keppel Street and the rear of the dwelling thereon being pruned/trimmed to a height of 3.0 metres, only if there is no loss of full ocean view from lot 3, 33 Ferguson Street Emu Park. Pruning/trimming to be carried out every six months with first half yearly pruning/trimming to be undertaken on or before 30 August 2024. Where necessary, pruning/trimming must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (‘AQF’) level 3 in arboriculture. Should the owner/s of lot 3, 33 Ferguson Street Emu Park be required to carry out the work in default of -- 1 of 8 -- 2 it being done by the owners of lot 1, 52 Keppel Street Emu Park a suitably qualified arborist with appropriate insurance cover engaged by the owner/s lot 3, 33 Ferguson Street Emu Park shall be entitled to enter the land lot 1, 52 Keppel Street Emu Park to carry out such work subject to the owner/s lot 3, 33 Ferguson Street Emu Park giving 14 days written notice of that intention to the owner/s lot 1, 52 Keppel Street Emu Park at his/her/their last known address. The costs incurred by the owner/s of lot 3, 33 Ferguson Street in engaging an arborist to carry out any such work in default shall be recoverable from the owner/s of lot 1, 52 Keppel Street Emu Park as a debt without further notice being required to be given. These orders shall not lapse 10 years after the day upon which these orders were made pursuant to the provisions of section 78(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 but shall remain in force until revoked by the Tribunal. In compliance with Part 6 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, details of these orders will be entered in the register of orders maintained as a public record by the Queensland Civil and Administrative Tribunal. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – TREE DISPUTE – whether trees on the tree keeper’s property obscure a view from the neighbour’s property – whether view existed when the property was purchased by the neighbour – whether severe obstruction of the view – where neighbour wants trees trimmed or removed to restore view. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 67, s 73, s 74, s 78 APPEARANCES & REPRESENTATION: 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] By application for tree dispute filed 20 September 2021 John Frederick Butteriss (and latterly Julieanne Maree Butteriss) (‘the Butterisses’) the owners of 33 Ferguson Street Emu Park sought restoration of what they say was the benefit of ocean views which they enjoyed when they first occupied their home in 2009, originally purchased in 2007.They stated trees planted on the adjoining property at 52 Keppel Street Emu -- 2 of 8 -- 3 Park owned by Neil Kershaw and Michele Anne Kershaw (‘the Kershaws’) as tree keepers since 2018 blocked their ocean view and accordingly they sought pruning or removal. In addition, they asserted loss of sunlight. The two properties in question have a backyard common boundary with both properties generally enjoying an easterly aspect or facing east. [2] In asserting their entitlement to continuity of views that existed in 2009 (and 2007 when they purchased) when they occupied the property, the Butterisses rely on section 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘NDR legislation’) which states amongst other things at subsection 2: (2) QCAT may make orders it considers appropriate in relation to a tree affecting the neighbours land— … (b) to remedy, restrain or prevent— … (ii) substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land. [3] Subsection 3 goes on to state that: (3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if— (a) the tree rises at least 2.5 metres above the ground; and (b) the obstruction is— (i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. [4] In their initial response filed 12 October 2021, the Kershaws sought dismissal of the Butterisses’ application subject to them removing five tree specimens, namely two hoop pines (araucaria cunninghamii), two Indian sea almonds (terminalia catappa), and one beach she oak wilding (casuarina equisetifolia). In a further response filed 21 December 2021 the Kershaws attached before and after photos (undated) taken, it appears, from their backyard, indicating a height reduction in trees/vegetation such as to enable an unobstructed view from the top level of the Butterisses’ three-story level house and probably from the second level of their house. [5] On any interpretation of section 66 of the NDR legislation loss of view is the loss of use and enjoyment of the neighbour’s property. It is not a case of attempting to satisfy a neighbour’s concerns. It is whether there is severe obstruction of a view that the neighbour enjoyed prior to the creation of that obstruction. [6] Section 73 requires the Tribunal to consider a number of matters including the location of a tree in relation to the boundary and any premises, fence or other structure affected by the location of a tree, whether the carrying out of work on a tree would require any other consent or authorisation, whether the a tree has any historical, cultural, social or scientific value, whether there is any contribution a tree makes to the local eco system -- 3 of 8 -- 4 and to biodiversity, and to the natural landscape and scenic value of the land or locality. The Tribunal must also consider any contribution a tree makes to public amenity, any contribution a tree makes to the amenity of the land on which it is situated including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke. Section 75 provides for other matters the Tribunal may consider if a neighbour alleges unreasonable interference with land including obstruction of a view. [7] In that context, information, assertions around garden improvements and maintenance, prior existing vegetation remnants, opinions about neighbourhood amenity and/or community participation, foreshore regeneration/maintenance, gardening and horticultural experience, coast care volunteering, attracting birdlife, sourcing native plants from a community nursery, yard improvements made by a neighbour and the like are considerations for section 66 purposes but not imperatives in determining whether a view is obstructed. Any tree/s constituting severe obstruction/blockage of view irrespective of where it/they are on the tree keepers’ land can be the subject of orders for removal altogether or trimming to restore a prior, since obstructed, view. Nor is obstruction justified by simply arguing that such improves the amenity, shade, shelter, or privacy of a dwelling on a tree keepers’ land but rather, are considerations to be taken into account in assessing continuity of a view. [8] In material filed in the Tribunal the Butterisses stated they purchased the property for the open ocean views it afforded them. Whilst agreeable to the Kershaws removing the five tree specimens identified, other vegetation planted by the Kershaws ought to be kept to the NDR legislation height of 2.5 metres. Home improvements at 33 Ferguson Street were completed prior to the Kershaws’ purchase of their 52 Keppel Street property. It was asserted bamboo on the Kershaws property, which according to the Kershaws was 3 metres high, was in fact 2 to 3 metres above the Kershaws’ roofline. They said they were no longer able to sit on their deck and enjoy views of Great Keppel Bay because vegetation on the Kershaws’ property impacted those views. A photo taken on 3 February 2022 immediately after pruning was produced. Further photos taken June 2022 depicting obstruction of views by trees/bushes were also produced. They reiterated that trees/bushes trimmed by the Kershaws were also the subject of their application because when grown they would also obstruct their views. They expressed concerns about trees planted near to the common boundary growing to a height more than twenty metres, causing damage to their property and even injury or death. [9] The Kershaws stated they maintained a 500-millimetre clear area on their side of the 17-metre common boundary. There were no overhanging branches. They said that most of the trees/bushes planted or pre-existing plantings along the boundary would not grow above four metres. The exceptions would be pre-existing palms in the southwest sector and possibly old, established frangipanis along their side boundary. They argued the Butterisses still retained extensive views over the whole neighbourhood and to Keppel Bay but had been screened from overlooking into their sleeping and ablution areas. [10] In accord with Tribunal directions, a tree assessor/arborist was appointed to provide a tree assessment report. An inspection was conducted on 13 August 2022 with a report furnished on 17 September 2022 (mistakenly dated 2021). That report recorded that the Butterisses alleged they had full ocean views over the rooftop of the Kershaws’ property at the time of their purchase in 2007. The only vegetation present at 52 -- 4 of 8 -- 5 Keppel Street at that time was a frangipani on the left side of the Butterisses view to the east. There was mass planted vegetation in the rear of 52 Keppel Street less than five years old and as such observations were provided as a pictorial view. Whilst vegetation was growing up against the rear fence there was currently no risk of damage or expected damage in the ensuing twelve months. From the onsite assessment it was determined that the view was the same or similar from the deck as from the rear door leading to the deck (constructed in 2014 and located on the midlevel of the three-level dwelling at 33 Ferguson Street). The ocean view was concentrated over the flat roofline of the lowset 52 Keppel Street dwelling. The obstructed view complained of was that view from the mid-level kitchen window and rear deck. [11] Images in the report clearly depicted loss of view from the rear deck doorway, vegetation growing above 52 Keppel Street roofline and right-hand angle tree obstruction. Further images of view obstruction taken in 2019 and since removed were produced. The report went on to state the Kershaws had converted a relatively bare backyard into a fully vegetated area of mass planted native garden beds consisting predominantly of native shrubs, trees, pandanus, as well as palms and ad hoc plantings of pine trees, fruit trees, potted plants, bamboo, passionfruit as well as the residual plantings of frangipani trees with a pathway through. The report stated any plantings of vegetation that would grow to a height range of over three metres that the tree keepers’ plant on the frontage of the property would be deemed to having to abide by the current findings. The report also stated there is also the consideration that the tree-keepers block of land slopes down towards their residence from the rear fence line. So as the plantings in the midsection may be allowed to be maintained at a slightly higher height range than plantings along the rear boundary. The report went on to state ‘recommendations will address the long-term maintenance of the tree/s due to the potential to impede a view’. Any trees planted on the frontage of 52 Keppel Street would be subject to height restrictions. The report recommended with respect to view obstruction removal of a number of trees, pruning as necessary to maintain a height of 2.5 metres with allowable 1 metre of growth between pruning works to be carried out at not less than six monthly intervals, plantings considered to be in the mid to lower sections of 52 Keppel Street backyard as heading towards the residence rear to be maintained at 3 metres in height with an allowable 1 metre of growth between pruning and exclusion of vegetation existing at 52 Keppel Street prior to 2007. [12] The report concluded ‘the applicants have had uninterrupted views to Keppel Bay for the past fifteen years, until the respondents purchased the land in 2018’. [13] The report recorded finally the respondents have agreed to undertake any necessary removals and pruning works to ensure that the trees heights are maintained within their property. The respondents have also understood that if there has been a view lost in accordance with legislation, that they will be responsible to restore the view if directed to do so by the Tribunal. The applicants have agreed that if the respondents undertake the recommendations, that this will resolve the dispute with continued ongoing maintenance. -- 5 of 8 -- 6 [14] Latterly in material filed by the Kershaws on 11 May 2023 and 17 July 2023 it was asserted that aerial photos taken in the capture period 1 August 2008 to 8 November 2009 depicted an existing mature garden with large and small canopy trees and tall emergent coconut in the backyard at 52 Keppel Street. It was contended standard shadow measurement using the 52 Keppel Street house as a height reference showed trees along the rear fence at 52 Keppel Street were at 6-8 metres, the coconut at 8-10 metres and other vegetation along the northern neighbour’s boundary at 3-5 metres in height. As well there were comparisons of crown separation and foliage cover showing 70% crown foliage cover for the rear vegetation and 55% for the side vegetation. Also assertedly depicted was a line of some advanced palms on the Butterisses’ side of the common boundary. The Kershaws said this evidence affirmed on a balance of probabilities that the Butterisses’ view in 2007 was mainly restricted to the upper third story level. [15] These assertions fail firstly because the title deed searches of both properties directed to be produced to the Tribunal indicate that the Butterisses’ purchase was registered on the 17 April 2007. The aerial photos produced were taken at the very earliest on 1 August 2008 some sixteen months later and more likely sometime between 1 August 2008 and 8 November 2009. They do not constitute evidence of what trees/vegetation were on each property in April 2007. Secondly, the measurements asserted, even if accepting the methodology, are at best estimates, supposition of what might have been the case. The photos are somewhat hazy and unclear. There is no depiction at ground level to support the heights asserted. [16] Whilst there was some concern about a designated view tract on the part of the Kershaws, the fact of the matter is that the Butterisses’ house sits behind the Kershaws’ property. Whilst sunlight was mentioned, there was nothing in the material deeming it an issue for consideration or conclusion. CONCLUSIONS [17] This application is not about the destruction of trees/vegetation. Quite the contrary, the NDR legislation states ‘a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved’. [18] The Tribunal accepts the Butterisses evidence that they purchased 33 Ferguson Street in 2007 for the ocean views that the property afforded them. Photos produced confirm uninterrupted ocean views existed in the intervening years up to 2018 when the Kershaws occupied 52 Keppel Street. Whilst some photos taken in 2008/2009 and some shadow measurements suggested tree/vegetation on both properties, there was nothing conclusive as to their height in that period. Even if there was, the time difference, at the very least 16 months, makes any comparison irrelevant. [19] Trees/vegetation on properties adjoining 52 Keppel Street, and whether such impede the Butterisses’ views, is irrelevant. Only trees/vegetation situated on the Kershaws’ property are relevant here. Photos produced are compelling, clearly depicting obstructed views from the Butterisses’ mid-level kitchen window, deck doorway and deck proper. The interference with those views is severe by any measure. It was suggested that the only view obstructed was the view from the mid-level deck, constructed in 2014, and that such a view would not have been there in 2007. However, it is the view from the kitchen window and the doorway leading to the deck that has been obstructed. The Tribunal’s Arborist confirms these views are one and the same as the views from the deck. -- 6 of 8 -- 7 [20] There are no issues here about damage, death or injury. There are no overhanging branches in dispute. As indicated, sunlight is not a consideration. There are generally no matters or issues of consequence in terms of section 73 NDR legislation. The trees/vegetation complained of are in one relatively small backyard of one premises on a standard sized housing block. The mass planted vegetation has in the last five years replaced a relatively bare backyard. Pruning, trimming and even removal of some trees/vegetation would not offend section 73 NDR legislation considerations. [21] The only consideration of any consequence is privacy, which, due to the mass planted vegetation, has greatly improved. Given that trees/vegetation can be generally maintained at 2.5 metres and taking into account an increase to 3 metres closer to the rear of the 52 Keppel Street house (so long as it does not obstruct views) it can be said privacy has been reasonably addressed. At what point a 3-metre height would be appropriate might give rise to some leeway, but the guide would be whether such a height would obstruct an uninterrupted view. The Tribunal accepts the Kershaws have considerable arboreal experience. [22] It is appropriate that orders be made for the pruning/trimming of trees/vegetation at 52 Keppel Street that allow for retention of trees/vegetation at 52 Keppel Street but at the same time maintain continuity of the view from 33 Ferguson Street. Therefore, the Tribunals orders will be as follows: 1. The registered owner/s of lot 1, 52 Keppel Street Emu Park shall arrange for all those trees/vegetation situated thereon to be pruned/trimmed to a height of 2.5 metres so as to restore/maintain fully the ocean view from the mid-level of the three story dwelling on lot 3, 33 Ferguson Street Emu Park subject only to trees/vegetation in between the mid-section of the backyard area of lot 1, 52 Keppel Street and the rear of the dwelling thereon being pruned/trimmed to a height of 3.0 metres, only if there is no loss of full ocean view from lot 3, 33 Ferguson Street Emu Park. 2. Pruning/trimming to be carried out every six months with first half yearly pruning/trimming to be undertaken on or before 30 August 2024. 3. Where necessary, pruning/trimming must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (‘AQF’) level 3 in arboriculture. 4. Should the owner/s of lot 3, 33 Ferguson Street Emu Park be required to carry out the work in default of it being done by the owners of lot 1, 52 Keppel Street Emu Park, a suitably qualified arborist with appropriate insurance cover engaged by the owner/s lot 3, 33 Ferguson Street Emu Park shall be entitled to enter the land lot 1, 52 Keppel Street Emu Park to carry out such work subject to the owner/s lot 3, 33 Ferguson Street Emu Park giving 14 days written notice of that intention to the owner/s lot 1, 52 Keppel Street Emu Park at his/her/their last known address. 5. The costs incurred by the owner/s of lot 3, 33 Ferguson Street in engaging an arborist to carry out any such work in default shall be recoverable from the owner/s of lot 1, 52 Keppel Street Emu Park as a debt without further notice being required to be given. 6. These orders shall not lapse 10 years after the day upon which these orders were made pursuant to the provisions of section 78(1) of the Neighbourhood Disputes -- 7 of 8 -- 8 (Dividing Fences and Trees) Act 2011 but shall remain in force until revoked by the Tribunal. 7. In compliance with Part 6 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 details of these orders will be entered in the register of orders maintained as a public record by the Queensland Civil and Administrative Tribunal. -- 8 of 8 --