Booker v Ashman [2024] QCAT 214

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Booker v Ashman [2024] QCAT 214 PARTIES: JOHN WILLIAM BOOKER (applicant) WENDY PATRICIA BOOKER (applicant) v ROWAN ANTONY ASHMAN (respondent) BOBBY LEE ASHMAN (respondent) APPLICATION NO/S: NDR068-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 16 May 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Member Lumb ORDERS: 1. The Respondents must carry out work to reduce the height of each of the four (4) Dypsis lutescens (Golden Cane Palms) identified as ‘G1’ in the report of Mr David Gunter, Tree Assessor, dated 28 February 2023, to a height of 2.5 metres above ground level measured from the base of each Golden Cane Palm (‘the Work’). 2. The Work must be carried out: (a) initially, within six (6) weeks of the date of these Orders; (b) then annually, no later than 12 months after the date on which the Work was previously carried out; (c) by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the Work; and (d) at the Respondents’ cost. 3. The Applicants must provide access to the Applicants’ property to an arborist to carry out -- 1 of 10 -- 2 the Work, if access is requested by notice given by the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out. 4. Any culms, stems, or other vegetative matter must be removed from the Applicants’ property as part of the Work. 5. Should the Work not be completed within any of the respective times set out in Directions 2(a) and (b): (a) the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Direction 2(c); (b) for the purpose of performing the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondents’ land to carry out the Work, subject to the Applicants giving notice to the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out; (c) the cost incurred by the Applicants engaging an arborist to carry out the Work shall be recoverable from the Respondents as a debt, without further notice being required to be given to the Respondents. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees caused substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ property – where question of impact of trees situated on adjoining property comprising obstruction of views and shading from trees – whether appropriate to make orders under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 45, s 46, s 47, s 49, s 59, s 61, s 65, s 66, s 72 Belcher v Sullivan [2013] QCATA 304 Laing v Kokkinos (No 2) [2013] QCAT 247 -- 2 of 10 -- 3 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 Introduction [1] By an Application for a tree dispute filed on 4 April 2022 (‘the Application’), the Applicants seek orders pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’) that the Respondents carry out work to remove trees and/or to remove or prune the branches of trees which are located on the Respondents’ property. The Applicants and the Respondents reside in adjoining properties at Pacific Pines in the State of Queensland. [2] A Tree Assessment Report dated 28 February 2023 (‘the Report’) was prepared by Mr David Gunter, who was appointed by the Tribunal to inspect the trees and provide a report to the Tribunal on the issues raised in the Application. [3] Mr Gunter identified two groups of trees along the common boundary of the respective properties and a further individual tree inside the front boundary of the Respondents’ property (and not on the common boundary). The details of the trees are set out in the Report as follows: No Species Height (m) Approx. Structure Vitality Notes 1 Dypsis lutescens (Informal Golden Cane Each) Varied Average Average to Good 4 x Clumping Golden Cane. Sparse, informal hedge which provides privacy for the respondent but obscures distant views from the applicants [sic] to the coast. 2 Dypsis lutescens (Golden Cane x 2) 6 Average Average 2 x Clumping Golden Cane. Provides privacy for the respondent (bedroom windows) & applicant if maintained. Does not impact view. 3 Bismarkia nobilis (Bismarck Palm) 8 Good Good Located approximately 12 metres from the boundary. At present does not impede view as is obscured by G1. [4] The Applicants’ central complaint is that the trees obscure views previously enjoyed by the Applicants with a further complaint of shading caused by some of the trees. The Report [5] In the Report, Mr Gunter said the following under the heading ‘Discussion’: • G1 is a semi-mature informal hedge consisting of 4 x Dypsis lutescens (Golden Cane) Palms. G2 consists of two clumping specimens of the -- 3 of 10 -- 4 same species. The species is non-native but widely planted in Queensland as an ornamental landscape plant. • The trees are predominantly located adjacent to the Western boundary fence on the respondents [sic] property. T1 is located some 12 metres from the boundary and is closer to the respondents [sic] Eastern boundary. • The trees in G1 & 2 are in generally average condition in terms of vitality and overall structure. They provide some privacy and landscape amenity to the respondent particularly around the pool area, with G2 (if maintained at a lower level) providing some privacy to the upstairs bedroom windows in the respondents [sic] home and from the respondents into the applicants. Trees in G2 also somewhat obscure secondary views to the North which mainly encompass glimpses of hills and houses. • G1 obscures a pre-existing “view” to the East from the applicants [sic] property. The view extends to the ocean some 12km’s away (see Fig. 2, below). • In the past, three of the trees in G1 have been maintained at fence height, with the fourth tree (to the North – see Fig. 3, below) left to grow naturally. Trees that have been reduced/lopped in the past are consequently denser in terms of foliage than those that have not. • Tree 1 does not impede the view at the time of writing as it is obscured by G1. However reduction of G1 would expose the top of T1, which would (in turn) obscure the view somewhat. [6] In the Report, Mr Gunter made the following conclusions/recommendations: (a) ‘Pre-existing views from the applicants [sic] property are obscured by the subject trees.’ (b) ‘Reduction in height of trees in G1 has been completed in the past. As noted above, trees that have been previously lopped are denser than those that have not, and thus improve privacy between the two properties while opening up the view.’ (c) ‘A suitably experienced horticulturalist/gardener could thin the hedge to remove the taller culms/stems while retaining the lower/smaller stems, effectively reducing the overall height of the hedge to accommodate the view while retaining the respondents [sic] privacy – the exact height would need to be agreed between the two parties after accurate sight-lines (e.g. between applicants [sic] patio and respondents [sic] pool) have been established.’ (d) ‘If these works are approved/agreed it is likely that access from the applicants [sic] property would be the most practical way of accessing the site, given the steep retaining wall atop which the trees sit.’ (e) ‘Trees in G2 are not considered to be significantly impacting the applicants [sic] property.’ (f) ‘Tree 1 is located at the opposite boundary to that shared between the two parties. Canopy reduction of this tree is not possible (given the species). The -- 4 of 10 -- 5 tree is a highly valued specimen tree which provide shade and landscape amenity to the respondent.’ (g) ‘The tribunal must decide whether there is an entitlement to a “view” in this instance.’ [7] In these reasons, I will refer to the trees as ‘the G1 trees’, ‘the G2 trees’, and the ‘Bismarck Palm’ respectively. Is it appropriate to make any orders under s 66 of the NDA? [8] By s 61 of the NDA, the Tribunal has jurisdiction to hear and decide any matter in relation to a ‘tree’ in which it is alleged that, as at the date of the Application, ‘land is affected by the tree’.1 However, Part 5 of the NDA (in which s 59 and s 61 are situated) applies if the ‘neighbour’ cannot resolve the issue using the process under Part 4 of the NDA. [9] I find that the Applicants cannot resolve the issue under Part 42 because it is alleged that the Applicants’ land is affected by a tree ‘other than because branches from the tree overhang the land’ (see Example 1 to s 59 of the NDA). I am also satisfied that the Applicants have made a reasonable effort to reach agreement with the Respondents,3 having regard to the texts between the parties (see Attachment 1 to the Application). [10] Having regard to the Report, I find that each of the G1 trees, the G2 trees, and the Bismarck Palm is a ‘tree’ as defined in s 45 of the NDA (specifically, ‘any plant resembling a tree in form and size’, noting that one of the examples is a ‘palm’: s 45(1)(b)). [11] I find that the Applicants are a ‘neighbour’ within the meaning of that term in s 49 of the NDA, the Applicants being the registered owner (under the Land Title Act 1994 (Qld)), of the lot alleged to be affected by the trees which trees are located on a property of which the Respondents are the registered owner.4 [12] As to when land is ‘affected by a tree’, s 46 of the NDA provides: Land is affected by a tree at a particular time if— (a) any of the following applies— (i) branches from the tree overhang the land; (ii) the tree has caused, is causing, or is likely within the next 12 months to cause— (A) serious injury to a person on the land; or (B) serious damage to the land or any property on the land; or 1 As is evident from the terms of that provision, the affectation by a tree is determined as at the date of the Application. 2 NDA, s 59(b) and s 65(c). 3 NDA, s 65(a). 4 I refer to the Current Title Searches filed by the Applicants on 31 August 2022. -- 5 of 10 -- 6 (C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and (b) the land— (i) adjoins the land on which the tree is situated; or (ii) would adjoin the land on which the tree is situated if it were not separated by a road. [13] As at the date of the Application, there is no dispute that, and I find that: (a) the trees were situated on the Respondents’ property (see s 47(1) of the NDA); (b) the Applicants’ property adjoined the Respondents’ property (see s 46(b)(i) of the NDA); (c) the Respondents were given copies of the Application (see s 65(d) of the NDA). [14] The next issue is whether s 46(a)(ii)(C) of the NDA is satisfied and, if so, whether the Tribunal ought to make orders in favour of the Applicants (I am not satisfied that there is any arguable basis for concluding that s 46(a)(ii)(A) or s 46(a)(ii)(B) is satisfied). [15] Subsection 46(a)(ii)(C) requires that any of the trees have caused, are causing, or are likely within the next 12 months to cause ‘substantial, ongoing and unreasonable interference with’ the Applicants’ use and enjoyment of the Applicants’ property. [16] As to the meaning of ‘substantial’, in Belcher v Sullivan,5 K.S. Dodds, Judicial Member, said:6 ‘Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance. [17] Pursuant to s 66 of the NDA, if land is found to be affected by a tree, the Tribunal ‘may’ make orders it considers appropriate including, relevantly, to ‘remedy, restrain or prevent’ ‘substantial, ongoing and unreasonable interference with’ the Applicants’ use and enjoyment of the Applicants’ property (see s 66(2)(b)(ii)). [18] However, by s 66(3), s 66(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, relevantly, ‘severe obstruction’ of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. [19] In Laing v Kokkinos (No 2), Justice Alan Wilson, President, said:7 Section 66 of the Act provides that an applicant may seek an order of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land. That section does not create a right to a view, the remedy 5 [2013] QCATA 304. 6 At [23]. 7 [2013] QCAT 247, [32]. -- 6 of 10 -- 7 referred to is a statutory one which is discretionary, and will not be exercised if it is not appropriate in the circumstances. [20] In the circumstances, I consider that it is convenient to address s 46 and s 66 in relation to each group of trees and the Bismarck Palm separately, in the order of the G2 trees, the Bismarck Palm, and the G1 trees. G2 trees [21] The Application raises, in part, shading caused by the palms on the Respondents’ property. The Applicants provided two photographs said to be shading from the palms along the fence, the first being shading of a vegetable garden taken at 10:30am (it does not state the date on which it was taken) and a further photograph said to be showing shading of the pool taken at 8:30am (again without reference to the date). According to the diagram provided as part of the Application, the Respondents’ property sits to the north-east of the Applicants’ property. Given that orientation, I consider it more likely than not that the shading retreats when the sun moves overhead and then to the west. On the material presented by the Applicants, I am not satisfied that the shading constitutes a substantial, ongoing and unreasonable interference with the use and enjoyment of their land. [22] With respect to the impact of the G2 trees on the views said to be enjoyed from the Applicants’ property, Mr Gunter states that the G2 trees ‘somewhat obscure secondary views to the North which mainly encompass glimpses of hills and houses’. He also noted that the trees provide some privacy to the upstairs bedroom windows in the Respondents’ home and from the Respondents’ home into the Applicants’ home. Mr Gunter concluded that the G2 trees were not considered to be significantly impacting the Applicants’ property. Mr Gunter’s observations in relation to privacy to the Respondents’ property are consistent with the evidence of the Respondents. In my view, having regard to the material before the Tribunal, I am not satisfied that the G2 trees are causing (or that it is more likely than not that they will cause) substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ property, by way of obstruction of view. [23] For completeness, even if the Applicants satisfied this requirement, I would have found that the G2 trees did not constitute a severe obstruction of a view, from a dwelling on the Applicants’ land, that existed when the Applicants took possession of the land. With respect to the northerly and north-easterly views, I am unable to identify any photographic evidence of such views taken in 2003 when the Applicants became registered owner of the property, much less a photograph taken at that time from the Applicant’s house. [24] Having regard to all the circumstances, I find that the Applicants have failed to establish that it is entitled to relief pursuant to s 66 of the NDA, in respect of the G2 trees. Bismarck Palm [25] The Bismarck Palm is approximately eight metres in height. Mr Gunter expressed the view that the Bismarck Palm did not impede the view at the time of the Report as it was obscured by the G1 trees, but that reduction of those trees would expose the top of the Bismarck Palm which would in turn ‘obscure the view somewhat’. [26] I have had regard to the photographs which formed part of the material attached to the Application. The photographs include the photograph numbered 5 which shows the -- 7 of 10 -- 8 Bismarck Palm in 2018. It is evident that the Palm has grown in size since then, as depicted, in particular, in the photograph numbered 11. The Palm is also shown from different angles in the photographs numbered 2, 6 and 10 (two photographs). [27] Having regard to those photographs, and also the photograph identified as Figure 4 in the Report, I am satisfied that when the height of the G1 trees is reduced, the Bismarck Palm will partially obscure the (pre-existing) view to the east from the Applicants’ property which extends to the ocean some 12km away (the coastline view). The pre- existing coastline view from the Applicants’ house (in 2003) is shown in the first photograph at Attachment 2 to the Application. [28] I am satisfied that, having regard to the orders in respect of the G1 trees, the Bismarck Palm is likely, within the next 12 months, to cause substantial, ongoing and unreasonable interference with the Applicants’ enjoyment of their land insofar as the partial obstruction of the view from their dwelling is concerned. [29] However, on the basis of the material presented, I find that the Applicants have not established that the partial obstruction amounts to a ‘severe’ obstruction.8 As best I can assess from the material, a significant view to the coastline would still be seen to the left and the right of the Bismarck Palm (which is located approximately 12 metres from the common boundary of the properties). I find that the Applicants have not satisfied s 66(2)(b)(ii) of the NDA. [30] For completeness, even if I had concluded that this provision had been satisfied, I would have exercised my discretion under s 66 to refuse to make any order in relation to the Bismarck Palm. Mr Gunter’s evidence is that canopy reduction of the tree is not possible, given the species. In my view, the consequence of this is that the only order that would improve the view would be the removal of the Bismarck Palm.9 The NDA provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved (see s 72). I accept that the tree is a ‘highly valued specimen tree which provides shade and landscape amenity’ to the Respondents (as concluded by Mr Gunter)10. The tree has good structure and vitality. As noted above, it is approximately 12 metres from the common boundary.11 In the above circumstances,12 I would have concluded that it was not appropriate to order the removal of the tree. G1 trees [31] The G1 trees are identified in Figure 1 and Figure 3 (there referred to as ‘Group 1’) of the Report. They can also be seen in photographs attached to the Respondents’ Response referred to as ‘Figure 1’. [32] I accept the evidence of the Applicants that the G1 trees are in excess of 2.5 metres in height (see page 2 of Attachment to the Application). [33] I accept Mr Gunter’s evidence that the G1 trees obscure the (pre-existing) coastline view. The G1 trees have been lopped to fence height in the past, and the height reduction or lopping has resulted in more dense foliage than other Palms that have not 8 As to the applicable test, see Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247, [36]. 9 NDA, s 73(1)(j). 10 NDA, s 73(1)(e), (g) and (k). 11 NDA, s 73(1)(a). 12 I am of the view that, on the material presented, the factors in s 73(1)(b), (c), (d), (g), (h) and (i) of the NDA are not material to the present case. -- 8 of 10 -- 9 been lopped. Having regard to the photographic evidence provided by the Applicants, I find that the G1 trees effectively block the coastline view from the Applicants’ house, subject to the partial obstruction that would exist because of the Bismarck Palm. [34] I find that the G1 trees are causing substantial, ongoing and unreasonable interference with the Applicants’ enjoyment of their land. [35] I also find that the obstruction amounts to a ‘severe obstruction’ of the coastline view which existed when the Applicants took possession of their property. The G1 trees block the entire view to the coastline to the left and right of the Bismarck Palm. [36] Whilst the Respondents have raised concerns of a loss of privacy (which I accept is a matter of importance to them) whilst enjoying their pool area (which is adjacent to a rock retaining wall atop which sits the G1 trees), I am satisfied that adequate privacy would still be enjoyed by the Respondents if the G1 trees are maintained at a height of 2.5 metres above ground level. [37] I also take into account the following matters: the type of tree has no special significance, it is a non-native but widely planted tree in Queensland as an ornamental landscape plant; the G1 trees are planted along the common boundary with the Applicants’ property; there is no evidence that there will be any adverse impact on the G1 trees if pruned; and I cannot identify any evidence to support an argument that the trees should not be pruned having regard to any of the factors in subsections 73(1)(b), (c), (d), (e), (f), (h) and (i) of the NDA. [38] For the above reasons, I consider that it is appropriate, pursuant to s 66 of the NDA, to make orders for the reduction in height of the G1 trees. [39] With respect to the proposed order, I note that there may be a potential issue with respect to the appropriate ground level from which to measure the height of the G1 trees. The Respondents state that there is a variation in the height of the retaining wall; that at the southern boundary fence, the ‘Reference Level’ of the Applicants’ property is between 1-1.3 metres higher than the ground level where the fence is situated; and that over 15 metres the fence line elevation drops approximately 1 metre. [40] To accommodate this issue and to avoid uncertainty as to the height to which the G1 trees are to be pruned, I consider the most appropriate course is to make an order that the height is to be calculated in relation to each of the four Golden Cane Palms and that the height be measured from the ground level at the base of each Golden Cane Palm. To accommodate this, I consider that the work should be carried out by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture (who holds insurance for such work). [41] I also consider it appropriate that the initial work be carried out within six weeks of the date of these orders, with further height reduction work to be carried out annually, and that the work be done at the Respondents’ cost. I also propose to make orders requiring the Applicants to provide access to the arborist. The detailed orders are set out at paragraph [42] below, which orders I consider appropriate to make pursuant to s 66. Orders [42] For the above reasons, pursuant to s 66 of the NDA, I make the following orders: -- 9 of 10 -- 10 1. The Respondents must carry out work to reduce the height of each of the four (4) Dypsis lutescens (Golden Cane Palms) identified as ‘G1’ in the report of Mr David Gunter, Tree Assessor, dated 28 February 2023, to a height of 2.5 metres above ground level measured from the base of each Golden Cane Palm (‘the Work’). 2. The Work must be carried out: (a) initially, within six (6) weeks of the date of these Orders; (b) then annually, no later than 12 months after the date on which the Work was previously carried out; (c) by a qualified arborist with a minimum qualification of Australian Qualifications Framework Level 3 in Arboriculture, holding insurance cover for the Work; and (d) at the Respondents’ cost. 3. The Applicants must provide access to the Applicants’ property to an arborist to carry out the Work, if access is requested by notice given by the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out. 4. Any culms, stems, or other vegetative matter must be removed from the Applicants’ property as part of the work carried out pursuant to Orders 1 and 2. 5. Should the Work not be completed within any of the respective times set out in Directions 2(a) and (b): (a) the Applicants shall be entitled to have the Work carried out by an arborist meeting the requirements of Direction 2(c); (b) for the purpose of performing the Work, the arborist engaged by the Applicants shall be entitled to enter the Respondents’ land to carry out the Work, subject to the Applicants giving notice to the Respondents, by email or personal service, not less than seven (7) days prior to the date on which the work is to be carried out; (c) the cost incurred by the Applicants engaging an arborist to carry out the Work shall be recoverable from the Respondents as a debt, without further notice being required to be given to the Respondents. -- 10 of 10 --