Bradley v Killara Court Body Corporate [2023] QCAT 489

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bradley v Killara Court Body Corporate [2023] QCAT 489 PARTIES: CAROLYN RACHEL BRADLEY (applicant) v KILLARA COURT BODY CORPORATE (respondent) APPLICATION NO/S: NDR107-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 11 December 2023 HEARING DATE: 20 October 2023 HEARD AT: Brisbane DECISION OF: John Bertelsen, Member ORDERS: The registered owner of lot 2, 18 Sobraon Street Sunrise Beach shall arrange for all those trees on the exclusive use land attaching to lot 3, 20 Sobraon Street Sunrise Beach that require pruning to restore fully the ocean view from lot 2, 18 Sobraon Street Sunrise Beach be pruned utilising the photo plate 4 in Mr Scott’s arborist report emailed 27 May 2021 as a general yardstick (‘the works’). The registered owner of lot 2, 18 Sobraon Street Sunrise Beach shall take all reasonable steps to ensure compliance with section 94 of the NDR Legislation by: (a) Directing the arborist to provide notice of their intention to enter the exclusive use land and carry out the relevant works, at least seven days prior to entering the land, to: (i) The Killara Court Body Corporate; (ii) Any person or entity exercising exclusive rights over the land; and (b) Directing the arborist to enter the land for the purpose of completing the works only at a reasonable time and only to a reasonable extent needed to carry out the works. -- 1 of 8 -- 2 Such pruning to be carried out annually with first annual pruning to be undertaken on or before 16 February 2024. The pruning must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (“AFP”) level 3 in arboriculture. The registered owner of lot 2, 18 Sobraon Street Sunrise Beach and the Killara Court Body Corporate shall each pay the annual costs of the works equally. 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 NDR Legislation but shall remain in force until revoked by the Tribunal. In compliance with Part 6 of the NDR Legislation 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 – view – 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 to restore view Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 67, 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] Killara Court Body Corporate is a tree keeper as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Legislation’). Carolyn Rachel Bradley (Ms Bradley) is the neighbour at 2/18 Sobraon Street Sunrise Beach (‘lot 2’). Killara Court Body Corporate is the registered owner of that land situated at 20 Sobraon Street Sunrise Beach which forms the exclusive use land (area 177.9 m 2 ) attached to lot 3, 20 Sobraon Street Sunrise Beach owned by Kerstin Hildegard Auer and Searle Bradley Choudree (‘the exclusive use land’). [2] In an application for tree dispute filed 21 June 2021 Ms Bradley stated trees situated on the exclusive use land impacted or obstructed her ocean views which existed at the -- 2 of 8 -- 3 time of purchase of her townhouse in 2002. It was one of the reasons she liked the townhouse. [3] In the sketch plan attached to her application some nine numbered trees of various species including Melaleucas, Grevillea, Banksia, Oleanders and Pandanus Palm are identified as obstructions. Prior, she stated neighbours kept the trees trimmed but the current owners of lot 3, Ms Auer and Mr Choudree, who arrived some four years ago, had some trees trimmed but it was not sufficient to reduce substantial view interference and was for their own amenity. [4] On 27 November 2019 Ms Bradley arranged for a quote to trim the trees and forwarded it to Ms Auer and Mr Choudree. She also arranged for an arborist report on trimming the trees on 24 March 2021, updated on 29 May 2021. That arborist report was initially emailed on 27 May 2021 by the entity ‘The Consulting Arborists’. Mr Tim Scott, arborist, recorded site inspections on 25 February 2021 and 12 May 2021. His report identified some nine trees mostly in average condition between 4 and 6.5 metres high, mostly mature or nearing maturity with mostly medium useful life expectancies. Mr Scott was informed the previous owners of 3/20 Sobraon Street agreed to maintain the height of the trees so that Ms Bradley’s view was not affected. Since the current owners Ms Auer and Mr Choudree purchased some four years ago, height reduction had taken place on two occasions in October 2017 and September 2018. He stated that within the following twelve months of tree growth ocean and surf zone view would be further restricted, even perhaps virtually eliminated as the result of fast growth from the epicormic shoots that form all the trees’ canopies; that the loss of ocean and surf view though not completely obscured as yet would be significant when compared with the view at the time of property purchase. Mr Scott said reduction pruning by approximately 1.5 metres would have little effect on the trees’ condition. He recommended reduction pruning by approximately 1.5 metres or that which regained the former view. [5] Ms Auer and Mr Choudree in their response confirmed their purchase of lot 3, 20 Sobraon Street (‘lot 3’) in July 2015 including the benefit of attached exclusive use area. They stated at the time of purchase there were a number of established trees in the exclusive use area at least seven metres high and extending above the six-metre- high roofline. However, one of those trees was on neighbouring land at 45 Tingira Crescent and therefore not relevant. They believed trees in the exclusive use area had always substantially affected Ms Bradley’s views. They stated that in 2017 Ms Bradley asked for trees to be trimmed but were not aware of which trees were trimmed or to what height because at that point they resided in Sydney and the premises was rented. They were asked again in 2018 and they agreed. They said an arborist attended and trimmed two trees with the remaining trees in the exclusive use area not being trimmed. Neither Ms Auer nor Mr Choudree could comment on the views that existed at the time Ms Bradley purchased her townhouse. Ms Auer then stated she had spoken to one Stephen Maxwell Rostron, a prior owner of lot 3, 20 Sobraon Street in relation to the view that existed at the time of Ms Bradley’s purchase of her townhouse. She stated she had also spoken to one Douglas Saunders, a prior owner of lot 2, 20 Sobraon Street in relation to the view that existed at the time of Ms Bradley’s purchase of her townhouse. [6] Mr Saunders provided Ms Auer with a film photo taken in 2002 of himself standing in front of tree number 6 (melaleuca). Ms Auer stated she took a photo of Mr Saunders standing in front of tree number 6 on 12 August 2021, the purpose of producing the -- 3 of 8 -- 4 two photos presumably being to indicate the relatively mature state of the subject tree in 2002. [7] Ms Auer stated additionally she was a professional photographer, asserting that every digital photograph taken contains metadata; that is, a digital time print that shows when an image was first taken as well as camera details, camera settings and location. Such metadata can be accessed by clicking the image or opening the photograph in an editing programme such as photoshop. She stated as one example the photograph identified as plate 4 depicting substantially generally uninterrupted ocean views from lot 2, 18 Sobraon Street in Mr Scott’s report and forwarded to her by Ms Bradley by email on 10 January 2021. Using metadata, she identified that the image was created on 17 May 2013. That accorded with Ms Bradley’s statement in that email: “The sunny one taken in 2013, years and after our purchase and occupancy next door. They were even more juvenile eleven years earlier when we moved in”. That same email sought trimming to 5.2 metres which Ms Bradley asserted would “in no way adversely affect your amenity or the health of your view impeding trees”. [8] Ms Auer identified Mr Scott’s plate 5 photo also emailed on 10 January 2021, by reference to the metadata, as having been taken on 23 February 2009 and not mid- February 2021. As well some trees depicted were not in the exclusive use area. She produced a Treesafe Australia Pty Ltd tax invoice for pruning dated 20 February 2020, recording “removal of a small tuckeroo and a golden palm, the lightly weight reduction of a banksia, light reduction weight and height of a silky oak, considerable height and weight reduction of a paperbark tree and light height reduction and trimming of oleander branches hanging over neighbouring properties”. [9] Ms Auer stated that subsequently she arranged for “Tree Solutions to attend the property to conduct an assessment of the trees and the height to which they should be trimmed to retain the former view, as per the evidence of Mr Rostron and Mr Saunders”. She was told that Tree Solutions could attend on Tuesday 17 August 2021. It appears that Brendan Martin of Tree Solutions arborists attended the exclusive use land on 17 August 2021 and provided a report. Statutory declaration of Stephen Maxwell Rostron [10] Mr Rostron purchased lot 3, 20 Sobraon Street in September 1993. He stated trees in the yards at Killara Court had never been trimmed and were above the roofline in 1993. He believed the height of these trees would definitely have obstructed the views from the units at 18 Sobraon Street especially in 2002. Mr Rostron produced a copy of a letter dated 29 November 2002 received from Carolyn and Bernie Bradley requesting trimming of the trees on the northside boundary of 20 Sobraon Street. Agreement was granted for limited tree trimming with concerned owners at 18 Sobraon Street to pay the cost. He stated that in July 2003 Ms Bradley had the trees retrimmed without permission; that approval and payment of the cost was a prerequisite. He said Ms Bradley apologised. He said there was never any guarantee that future tree trimming would be an automatic ongoing process. It was a privilege not a right to have the trees trimmed. Statutory declaration of Douglas Saunders [11] Mr Saunders purchased unit 2, 20 Sobraon Street in February 2001. He confirmed his view that the trees in question located in the exclusive use area of lot 3, 20 Sobraon Street were mature when he purchased his property. The trees were already mature, were higher than the roofline of unit 3, 20 Sobraon Street and would have already -- 4 of 8 -- 5 impacted the view of lot 2, 18 Sobraon Street in 2002. He said “the owners of 18 Sobraon Street had started to trim the trees of 20 Sobraon Street after they have purchased their unit to improve their view “. [12] On 15 February 2022 Ms Bradley filed an application for decision/order by consent. The essence of the draft consent orders was for eight of the lot 3, 20 Sobraon Street trees to be trimmed so that they would be no more than 5.7 metres in height from the ground level of the exclusive use land (‘the maintenance work’), save for the oleanders to be trimmed to not more than 5 metres in height; and that maintenance work be conducted biannually with Ms Bradley and Ms Auer / Mr Choudree to share the cost equally. [13] Attached to that draft are the findings of Tree Solutions’ inspection conducted in August 2021. The findings stated original lopping instigated by Ms Bradley severely reduced the trees followed by height reduction by Ms Auer, with Ms Bradley now wanting more severe height reduction. The findings further stated that two trees, a silky oak and melaleuca being approximately 25 to 30 years old, would have been in situ well prior to 2002. Though subjected to poor pruning practice/lopping none of the trees required removal. A table forming part of those findings identifies eight trees with recommended pruning heights of 5 to 6.5 metres determined by considering the need to retain as much foliage as possible. Ms Auer and Mr Choudree did not agree with Ms Bradley’s proposed consent orders, expressing concern that a 5.7 metre height could result in loss of shade and privacy. [14] On 12 October 2022 an inspection of the trees on the exclusive use land was conducted by the Tribunal’s duly appointed tree assessor Steven Richards. In his report dated 14 October 2022 he stated that the height of the trees in relation to (Ms Bradley’s) balcony and the associated view had been in contention for twenty years; that the only area for concern for Ms Bradley was the height of the trees. He formed the view that based on the height of the trees of approximately thirty years and the film photograph dated 2002 they would have been significantly taller than eight to nine metres and obscuring the view at the time of acquiring the property. A photograph of the view from Ms Bradley’s property taken on the day of inspection depicts a partially obstructed sea view. [15] The film photograph dated 2002 is that same photograph provided to Ms Auer by Mr Saunders of himself standing in front of tree number 6 (tree number 2 in Mr Richards’ report); that is, a melaleuca. He inferred the height at the time to be some eight to nine metres. [16] Mr Richards then turned to the issue of jurisdiction about the trees having a development condition protection order from the time of development approval in 1989. He understood development conditions were met with the planting of trees at the time of completion of construction in 1993. He said the conditions of approval protected these trees and that as such a permit was required for removal. Additionally, as from 2007 the trees must be maintained in accordance with Standards Australia AS4373-2007: Pruning of amenity trees. He said attempts at height reduction for the tree species involved would be in breach of Australian pruning standards. Generally, he considered the trees had been mismanaged in the past. He recommended that work be carried out on trees 1 to 6, applying restorative techniques in accordance with AS4373-2007 and supervised by a suitably qualified arborist. -- 5 of 8 -- 6 [17] Ms Auer and Mr Choudree produced a copy of the two-page development approval from Noosa Shire Council dated 25 February 1980. Approval condition number two stated “Minimum disturbance to natural flora. No vegetation to be removed other than that which would impede building operations. Where practicable, revegetation to be carried out following cessation of building activity.” Subsequently the Group Title Plan was registered in the Titles Office on 7 November 1980; that is, construction was complete such as to enable title deeds to be issued. They asserted the NDR Legislation did not apply to trees planted or maintained as a condition of a development approval. Conclusions [18] For Ms Bradley, tree obstruction of her ocean view has been an issue for many years. [19] To begin with the Group Title Plan for 20 Sobraon Street Killara Court was registered on 7 November 1980. The development approval preceding registration only refers to site revegetation to be carried out following cessation of building activity. There is no evidence of what vegetation was there in 1980. There is no mention as such of any development condition protection order, only a general direction to revegetate where practicable. There is no clear evidence of what vegetation (trees) were planted on the exclusive use land in the period 1980 through 2002 other than Mr Rostron’s statement that trees in the yards at Killara Court had never been trimmed and were above the roof line in 1993. There was no evidence of what trees, how many or how mature. Mr and Ms Bradley’s request for tree trimming in November 2002 and agreement for tree trimming at that time can be construed as a matter of courtesy and good neighbourly conduct when exercising a right to have views maintained in accord with the NDR Legislation and not as a matter of privilege. In any event by section 67 of the NDR Legislation the Tribunal is empowered to make orders overriding local government vegetation protection orders or local laws requiring local government consent or authorisation. Nor is there any adequate evidence before the Tribunal to enable the Tribunal to identify that any of the trees were planted or maintained as a condition of a development approval that would exempt such trees from the application of the NDR Legislation. [20] Mr Saunders stated trees were mature in 2001 when he purchased unit 2, 20 Sobraon Street, were higher than the roofline of unit 3, 20 Sobraon Street and would have impacted the view from lot 2, 18 Sobraon Street. He said Ms Bradley’s request to trim trees was to improve her view. There is no evidence before the Tribunal that either Mr Rostron or Mr Saunders ever viewed surroundings, whether trees or ocean, from lot 2, 18 Sobraon Street in 2002 or later. Rather their outlook or belief is based on memory of trees and heights some twenty years down the track. [21] Plate 4 of Mr Scott’s report is direct uncontested evidence of generally uninterrupted ocean views in 2013. If the Tribunal accepts plate 5 in Mr Scott’s report is a photo taken February 2009 and not mid-February 2021 then it is seven years post purchase by Ms Bradley. Even if it is impliedly asserted that plate 5 was meant to mislead it is still not evidence of views, limited or otherwise, that would have existed in 2002. Besides it is the only photo which, on Ms Auer’s say so, is misidentified in time. That could have been anybody’s error. Accepting that plate 5 is a photo taken in February 2009 then clearly trees must have been trimmed between 2009 and 2013. But there is no evidence by whom or of any arrangements regarding, for instance, payment. [22] The photo of Mr Saunders standing in front of tree number 6 (melaleuca) in 2002 and again in 2021 is evidence that it is alive and well nineteen years later. There are several -- 6 of 8 -- 7 trees involved here not just one. Two photos of one tree are of no assistance when considering the totality of trees, assertedly up to eight, creating a sea view obstruction. Even Mr Richards’ photo taken from Ms Bradley’s unit on 12 October 2022 depicts only a partially obstructed sea view. This is in the face of his own view that there would have been view obstruction in 2002 due to the height of the trees of approximately thirty years being in excess of eight to nine metres and the photo dated 2002, ie. the photo of Mr Saunders in front of the melaleuca in 2002. [23] There is no history of animosity or argument before the Tribunal about tree height obstruction in the period 2009 through 2015. That is not surprising given there were uninterrupted ocean views in 2013. Difficulties seem to re-emerge post 2015. [24] The three arborists’ reports before the Tribunal do not accord with one another except to say they deal with varying numbers of trees on the exclusive use land and none suggest tree destruction. The species of trees under consideration included Melaleucas, Grevillea, Banksia, Pandanus Palms, Weeping Paperbarks, Silky Oaks, Kassod trees and Oleanders. [25] Mr Scott, a well-qualified arborist, identifies in February and May 2021 nine trees between 4 and 6.5 metres high; that within the following twelve months of tree growth ocean and surf view would be further restricted, even perhaps virtually eliminated. Mr Scott recommended reduction pruning by approximately 1.5 metres or that which regained the former view. There was no suggestion that any trees be eliminated. Mr Scott’s photo plates 2 through 25 are not disputed bar the date of plate 5. [26] Tree Solutions’ Mr Martin found in August 2021 two trees would have been in situ well prior to 2002. Though subject to poor pruning practice none required removal. He identified eight trees with recommended pruning heights of 5 to 6.5 metres determined by the need to retain as much foliage as possible. [27] Mr Richards, the Tribunal’s well qualified arborist, whilst acknowledging that Ms Bradley’s only concern was tree height surmised, based on tree height and a singular photo dated 2002, that Ms Bradley’s view would have been obscured in 2002. At the same time, he includes in his report a photo of the view from Ms Bradley’s unit depicting only a partially obstructed sea view. He limits his recommendations to restorative techniques to correct poor prior pruning. In addition, his report is erroneous in that Killara Court construction was completed in 1980 and not 1989. Development approval conditions 1074 were issued 25 February 1980. Mr Richards’ report refers to AS 4373-2007 as not allowing any tree height reduction. However, if tree height reduction were to be disallowed pursuant to that Australian Standard, then any tree contravening section 66 of the NDR Legislation, that is, any tree growing to a height where it obstructs a prior existing view could not be pruned or lopped such as to maintain or restore that view. That would make a mockery of the NDR Legislation which clearly states severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour (Ms Bradley) took possession of the land can (and the Tribunal does so find here) constitute substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land. [28] Apart from commentary about the age of trees and suppositions as to height based on age no one here has any real idea of when the trees that presently exist were planted. [29] In summary the Tribunal finds that when Ms Bradley purchased her townhouse in 2002 there were ocean views from her townhouse. As early as November 2002 Ms Bradley requested tree trimming. As of May 2013, Ms Bradley had generally clear -- 7 of 8 -- 8 ocean views as evidenced by plate 4 in Mr Scott’s report. Subsequently there were requests for tree trimming to a height of 5.7 metres. Real difficulties only emerged after the arrival of Ms Auer and Mr Choudree. A photo included in Mr Richards’ report depicts only a partially obstructed sea view. [30] By contrast there are only the recollections of Mr Rostron and Mr Saunders some twenty years on based on a belief of what Ms Bradley’s views would have been in and around 2002. [31] A tree height reduction regime ought properly to be put in place to restore uninterrupted ocean views. On the evidence available the Tribunal is not able to place a specific height on each and every tree (the numbers vary) which are spread across the exclusive use land. Different species of trees have different growth rates. Therefore, the Tribunal’s orders will be as follows: The registered owner of lot 2, 18 Sobraon Street Sunrise Beach shall arrange for all those trees on the exclusive use land attaching to lot 3, 20 Sobraon Street Sunrise Beach that require pruning to restore fully the ocean view from lot 2, 18 Sobraon Street Sunrise Beach be pruned utilising the photo plate 4 in Mr Scott’s arborist report emailed 27 May 2021 as a general yardstick (‘the works’). The registered owner of lot 2, 18 Sobraon Street Sunrise Beach shall take all reasonable steps to ensure compliance with section 94 of the NDR Legislation by: (a) Directing the arborist to provide notice of their intention to enter the exclusive use land and carry out the relevant works, at least seven days prior to entering the land, to: (i) The Killara Court Body Corporate; (ii) Any person or entity exercising exclusive rights over the land; and (b) Directing the arborist to enter the land for the purpose of completing the works only at a reasonable time and only to a reasonable extent needed to carry out the works. Such pruning to be carried out annually with first annual pruning to be undertaken on or before 16 February 2024. The pruning must be carried out by an appropriately insured arborist who is qualified to a minimum of Australian Qualifications Framework (“AFP”) level 3 in arboriculture. The registered owner of lot 2, 18 Sobraon Street Sunrise Beach and the Killara Court Body Corporate shall each pay the annual costs of the works equally. 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 NDR Legislation but shall remain in force until revoked by the Tribunal. In compliance with Part 6 of the NDR Legislation 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 --