Bowyer & Anor v Ortlipp & Anor [2019] QCATA 111

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bowyer & Anor v Ortlipp & Anor [2019] QCATA 111 PARTIES: MATTHEW BOWYER and SARAH WHITTLE (applicants) V MICHAEL ORTLIPP and BETH ELISE BURGESS (respondents) APPLICATION NO/S: APL251-17 ORIGINATING APPLICATION NO/S: NDR044-16 MATTER TYPE: Appeals DELIVERED ON: 29 July 2019 HEARING DATE: 29 June 2018 HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Olding ORDERS: 1. Leave to appeal refused. 2. Appeal dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – whether evidence available at time of hearing - whether evidence would have an important impact on the result of the case – whether evidence credible APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – where error asserted in the exercise of discretion to make orders about bamboo – where error asserted in weight given to evidence – where error asserted in application of relevant legal test in finding severe obstruction of a view caused by bamboo ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – loss of view – whether severe obstruction of views caused by bamboo – whether error in assessing and valuing views at the time respondents took possession of land and at the time of the -- 1 of 31 -- 2 hearing – whether error in finding severe obstruction of a view caused by bamboo – whether severe obstruction of a view caused a substantial, ongoing and unreasonable interference with the use and enjoyment of land – whether error in making orders in relation to bamboo Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a), s 45, s 46, 48(1)(a), s 49(1)(a)(i), s 61, s 62(1), s 66, s 73 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 147 Albrecht v Ainsworth & Ors [2015] QCA 220 Birnbaum v Akero [2014] QCATA 18 Challands & Anor v Jackson [2014] QCATA 330 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Dearman v Dearman (1908) 7 CLR 549 Ericson v Queensland Building Services Authority [2013] QCA 391 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499 Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Marsh v Baxter (2015) 49 WAR 1 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203 Norbis v Norbis (1986) 161 CLR 513 Norbury v Hogan [2010] QCATA 27 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Rose Bay Marina Pty Limited v Woollahra Municipal Council and Anor [2013] NSWLEC 1046 Tenacity Consulting v Warringah [2004] NSWLEC 140 The Queen v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 Wilson & Anor v Next Property Pty Ltd [2017] QCATA -- 2 of 31 -- 3 145 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION What is this appeal about? [1] The respondents live in a property adjoining land owned by the applicants. The respondents applied to the tribunal for orders in relation to bamboo situated on the applicants’ land. The tribunal ordered that the applicants reduce the height of the bamboo to three metres and maintain the bamboo at this height on a biennial basis (‘the decision’).1 The applicants have appealed the decision. Appeals – the statutory framework [2] Appeals to the appeal tribunal are governed by Chapter 2, Part 8, Division 1 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). An appeal on a question of law is as of right.2 An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.3 [3] If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, and leave to appeal is granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.4 In deciding the appeal, the appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.5 [4] 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?;6 is there a reasonable prospect that the applicant will obtain substantive relief?;7 is leave necessary to correct a substantial injustice to the applicant caused by some error?;8 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?9 1 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 142(1). 3 Ibid, s 142(3)(b). 4 Ibid, ss 147(1), (2). 5 Ibid, s 147(3). 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Cachia v Grech [2009] NSWCA 232, [13]. 8 Ibid. 9 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. -- 3 of 31 -- 4 [5] 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.10 Tree disputes – the statutory framework [6] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) applies to trees situated on land recorded in the freehold land register.11 A ‘tree’ is defined.12 A ‘tree keeper’ includes the registered owner of freehold land on which a tree is situated.13 A ‘neighbour’ includes the registered owner of freehold land which is affected by a tree.14 [7] Land is ‘affected by a tree’ if both of the following conditions are met: a. any of the following apply: branches from the tree overhang the land;15 the tree has caused, or is likely within the next 12 months to cause: serious injury to a person on the land or serious damage to the land or property on the land;16 or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.17 b. the land affected by a tree adjoins the land on which the tree is situated18 or would adjoin the land on which the tree is situated if it were not separated by a road.19 [8] A neighbour may apply to the tribunal for an order in relation to a tree.20 On application to the tribunal, the tribunal may make orders it considers appropriate in relation to a tree21 after giving due consideration to a range of specified matters.22 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 to the tribunal, land is affected by the tree.23 [9] The tribunal may make an order in relation to a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.24 The obstruction of a view is not interference unless it is a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.25 10 Ericson v Queensland Building Services Authority [2013] QCA 391. 11 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a). 12 Ibid, s 45. 13 Ibid, s 48(1)(a). 14 Ibid, s 49(1)(a)(i). 15 Ibid, s 46(a)(i). 16 Ibid, s 46(a)(ii)(A)-(B). 17 Ibid, s 46(a)(ii)(C). 18 Ibid, s 46(b)(i). 19 Ibid, s 46(b)(ii). 20 Ibid, s 62(1). 21 Ibid, s 66. 22 Ibid, s 73. 23 Ibid, s 61. 24 Ibid, s 66(2)(b)(ii). 25 Ibid, s 66(3)(b)(ii). -- 4 of 31 -- 5 [10] Generally speaking the tribunal, in determining whether a tree is causing a severe obstruction of a view, will be required to: (a) make factual findings about the view – both at the time the neighbour took possession of the land and at the time of the hearing; (b) assess and value the view and the impact of the obstruction of the view; (c) determine whether any view obstruction is severe; (d) if a view obstruction is severe, determine whether the obstruction is a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; (e) make the appropriate orders. The decision [11] The respondents’ home is a three story dwelling constructed of a number of shipping containers.26 It is situated three metres from the boundary between the respondents’ property and the applicants’ property.27 The respondents took possession of their property in September 2014.28 At the end of June 2013, the applicants planted seven mature palms, and six clumps of bamboo, of three different species, adjacent to the common boundary.29 The bamboo plants were approximately two metres tall when planted in June 2013 and at the time of the hearing were six to ten metres tall.30 [12] The learned member made a number of findings relating to whether the bamboo caused a severe obstruction of a view from the respondents’ property and whether that obstruction resulted in a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. The learned member went on to make orders in relation to the bamboo. [13] The learned member found: (a) At the date the respondents took possession of their property: (i) the faster growing species of bamboo would have reached a height of between five metres and six metres and would have been visible at the second level of the container house; and (ii) the visible immature bamboo tips were relatively sparse and did not cause a significant impedance to the views available from the second level of the respondents’ house;31 (b) The number of bamboo culms and the foliage density seen through the windows on the second floor of the house had substantially increased since the respondents took possession;32 26 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [15] - [19]. 27 Ibid. 28 Ibid, [6]. 29 Ibid, [26]. 30 Ibid, [28]. 31 Ibid, [57]. -- 5 of 31 -- 6 (c) The mature bamboo obstructed the northerly views available from the second level of the respondents’ house;33 (d) The value of the view from the respondents’ dwelling was not limited to the views or glimpses of the Brisbane River. Other elements, including the park and the trees, were important elements of the view;34 (e) The northerly view from the second level of the dwelling, containing the kitchen, dining and living rooms, was the most attractive view;35 (f) The bamboo did not completely block the views from the second level of the dwelling, but the parts of the view that were available were so fragmented and devoid of context that the view as a whole was lost;36 (g) The northerly view from the second level living area was severely obstructed by the bamboo and the view had been nearly blocked out;37 (h) The lower height and density of the species planted at each end of the bamboo screen did not severely obstruct views from the western balcony and laundry on the second level;38 (i) The respondents were not hypersensitive, or abnormally sensitive, to the harm or interference caused by the bamboo;39 (j) The applicants had not taken steps to minimise the harm caused by the bamboo;40 (k) The bamboo screen was planted to prevent the respondents’ house from overlooking the applicants’ house from the second and third levels;41 (l) It was not possible from the second level of the respondents’ house looking north to determine where the house sat in its surroundings;42 (m) The interference caused by the bamboo was ongoing and would worsen until the next annual pruning of the bamboo;43 (n) The severe obstruction of the view caused by the bamboo was a substantial ongoing and unreasonable interference of the respondents’ land;44 (o) The significance of the adverse impact of the respondents’ house on the applicants’ privacy was lessened by the fact that the applicants did not reside, 32 Ibid. 33 Ibid. 34 Ibid, [62]. 35 Ibid. 36 Ibid, [68]. 37 Ibid, [69]. 38 Ibid, [74]. 39 Ibid, [73]. 40 Ibid, [74]. 41 Ibid, [75]. 42 Ibid, [76]. 43 Ibid, [77]. 44 Ibid, [78]. -- 6 of 31 -- 7 had never resided, and had no future intention of residing in the house on the property;45 (p) Any discomfort caused to the applicants by the overbearing nature of the respondents’ house was experienced by them on their infrequent visits to the backyard of the property, primarily to maintain the bamboo which they had planted;46 (q) There was no evidence from any resident of the applicants’ property, past or present, of any discomfort caused to them by the respondents’ house;47 (r) Any pruning of the bamboo to a height above three metres would result in a hedge screen which did not exist at the date the respondents took possession of their property;48 (s) If the bamboo was pruned every two years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the respondents’ house;49 (t) The effect of the planting of the bamboo was to create a hedge;50 (u) Selective pruning of the bamboo was not appropriate given the speed at which the bamboo would continue to shoot and grow.51 Application to adduce fresh evidence [14] In this appeal, the applicants seek to rely upon fresh evidence. The fresh evidence sought to be adduced by the applicants is: (a) A newspaper article published after the decision below with accompanying comments by readers; (b) An affidavit by a property manager; (c) An affidavit by a former tenant of the applicants’ property; (d) An affidavit by the applicants. [15] The grounds of appeal relied upon by the applicants raise questions of law, questions of fact and questions of mixed law and fact. As we have observed, an appeal on a question of law is an appeal as of right. However, an appeal on a question of law is governed by s 146 of the QCAT Act. An appeal under s 146 is an appeal in the strict sense and involves no element of rehearing.52 Generally fresh evidence may be permitted in appeal proceedings, where an appeal is an appeal by way of rehearing, 45 Ibid, [87]. 46 Ibid, [88]. 47 Ibid, [89]. 48 Ibid, [108]. 49 Ibid, [109]. 50 Ibid, [113]. 51 Ibid, [114]. 52 Ericson v Queensland Building Services Authority [2013] QCA 391, [25]; Albrecht v Ainsworth & Ors [2015] QCA 220, [94]. -- 7 of 31 -- 8 in the discretion of the appeal body.53 If an appeal on a question of law is successful and the Appeal Tribunal remits the matter for reconsideration, any application to adduce further evidence can be made and considered as part of those proceedings. [16] An appeal on a question of fact or mixed law and fact is conducted by way of a rehearing. As we have observed, fresh evidence may be considered in a rehearing. An appeal on a question of fact or mixed law and fact first requires leave. An application for leave to rely upon fresh evidence may be considered in deciding whether to grant leave to appeal as the fresh evidence may be relevant to the prospects of success in the appeal. [17] A party seeking to rely upon fresh evidence must satisfy the following: (a) The evidence could not have been obtained with reasonable diligence for use at the hearing below; (b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and (c) That the evidence is credible though it need not be incontrovertible.54 The newspaper article [18] The newspaper article was published in the Courier Mail approximately 3 weeks after the decision.55 Members of the public commented on the article by posting comments to the newspaper’s website. The evidence is not, in our view, credible. What unidentified readers of a newspaper might think of the decision is irrelevant to the issues in dispute between the parties. The Tribunal does not make decisions based upon, or informed by, anonymous public opinion. In any event the evidence, such as it is, would not be likely to have had an impact on the result below. The evidence of the property manager [19] The evidence from the property manager is essentially opinion evidence about the decision of the Tribunal below and the relevance of the decision to the rental of the applicants’ property.56 The applicants alleged in the proceedings below that the respondents’ dwelling impacted adversely on the rental of their property and that the presence of the bamboo ameliorated that impact. We note that the new evidence is from a property manager who did not give evidence in the proceedings below. The property manager opines that the reduction in height of the bamboo could result in the applicants’ property being rented for a lesser sum than if the bamboo was not reduced in height. What the applicants are seeking to do is adduce evidence to address issues that could and should have been addressed in the proceedings below. In any event, the evidence is less than persuasive and is unlikely to have had any impact on the decision below. The evidence of the former tenant 53 Wilson & Anor v Next Property Pty Ltd [2017] QCATA 145. 54 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 55 Affidavit of Matthew Bowyer, sworn 12 March 2018, exhibit A. 56 Affidavit of Alicia Wilson, sworn 3 April 2018. -- 8 of 31 -- 9 [20] We are unpersuaded that the evidence from the former tenant of the property57 could not have been obtained at the time of the hearing below. A period of almost one year elapsed between the time the application for a tree dispute was filed and the hearing. The applicants concede that they did not ask the witness to provide a statement before the hearing. They did not do so then. They cannot do so now. The applicants’ evidence [21] The applicants seek to rely upon their own evidence that, since the decision below, they have commenced residing at the property.58 The importance of the evidence is said by the applicants to be that the amenity provided by the bamboo now affects them directly and on an ongoing basis. In our view, and for the reasons we set out in more detail in dealing with the substantive appeal, the evidence is unlikely to have had an important impact on the decision below. The applicants are, in our view, attempting to re-argue their case relying upon further self-serving evidence. [22] The application to adduce fresh evidence is refused. Consideration [23] The Application for leave to appeal or appeal raises questions of law, questions of fact and questions of mixed law and fact. The applicants identify three principal errors by the learned member: (a) Finding that the respondents’ views were affected by the bamboo plants to the extent found; (b) Failing to balance the respondents’ right to a view with the applicants’ right to privacy; (c) Failing to accept the weight of evidence in favour of the applicants. [24] At the hearing of the appeal the applicants abandoned additional grounds of appeal asserting bias and a failure to be afforded procedural fairness. [25] We propose to deal with the grounds of appeal by reference to the findings and decision, and the extensive submissions by the parties, in relation to: (a) The views that existed when the respondents took possession of the land; (b) The views that existed at the time of the hearing; (c) The value of the views and the reasonableness of protecting the views; (d) The extent of the obstruction of the views and whether the obstruction of views was severe; (e) Whether the obstruction constituted a significant and ongoing interference with the respondents’ use and enjoyment of the land; 57 Affidavit of Vanesa Jones, sworn 29 April 2018. 58 Affidavit of Matthew Bowyer and Sarah Whittle, sworn 28 August 2018. -- 9 of 31 -- 10 (f) The matters for consideration under Chapter 3, Part 5, Division 4 of the ND Act; (g) The orders made in relation to the trees. The findings about the views from the dwelling at the time the respondents took possession of the land [26] It is appropriate to make some preliminary observations. The learned member identified the construction, layout and position of the respondents’ dwelling.59 As the learned member observed, the first and second levels of the northern elevation of the dwelling are approximately 15 metres in length. The kitchen, dining and living areas (‘the living areas’) on the second level comprise approximately two thirds of the northern elevation. The living areas, which flow together in an ‘open plan’ design, are located along an east/west axis, facing north. Approximately one sixth of the total length of the northern elevation is a western balcony (at the western end, which we will refer to as the western balcony) and one sixth is a laundry (at the eastern end).60 The view looking directly north from within the living areas on the second level is (aside from the bamboo) principally of the applicants’ dwelling. Beyond the applicants’ dwelling is the Brisbane River. Again, looking directly north, above the roof line of the applicants’ dwelling can be seen various trees.61 It is apparent from the evidence before the learned member that the views enjoyed from the living areas varied according to the viewing position. There were, from the living areas, views to the west of the applicants’ dwelling, that is to say the views were in a northerly and north westerly direction from the living areas depending on the viewing location. Those views were of the Brisbane River, parkland and trees. Again, depending on the viewing locations, the views from the living areas might be described as oblique to a greater or lesser degree. [27] The learned member made factual findings about the views that existed from the respondents’ dwelling at the time they took possession of the land. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions reached.62 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.63 As the Appeal Tribunal observed in Challands & Anor v Jackson:64 It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view. (footnotes omitted) [28] Turning to the decision, the learned member found: … at the date of possession the faster growing species of bamboo would have reached a height of between 5m and 6m and would have been visible at the 59 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [15] - [19]. 60 Exhibit 2. 61 Exhibits 4 and 5. 62 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 63 Chambers v Jobling (1986) 7 NSWLR 1, 10. 64 [2014] QCATA 330. -- 10 of 31 -- 11 second level of the container house, but having regard to the photographs relied on by Mr Bowyer and Ms Whittle, the visible immature bamboo tips were relatively sparse and did not cause a significant impedance to the views available from the second level of the container house.65 [29] The evidence of the respondents was that, at the time they took possession of the land, the bamboo could not be seen from their home and that it was not visible over the fence on the common boundary for some four months after possession.66 The applicants gave evidence about the height of the bamboo at or about the time the respondents took possession of the land.67 The applicants relied upon photographic evidence contained in the joint report of the visual amenity experts (the ‘joint report’).68 The visual amenity experts were Mr Chenoweth (for the applicants) and Mr Curtis (for the respondents). Attached to the joint report were a number of photographs, one of which dated from August 2014.69 The respondents took possession of the land in September 2014. The photograph appears to show that the bamboo, to some extent, was at or about the height of the second level of the dwelling. The photograph depicts the foliage as being somewhat sparse where the bamboo is tallest. The applicants relied upon two photographs attached to the joint report which they said showed that, at the date the respondents took possession, the bamboo was significantly obstructing the views toward the river from the main living area of the dwelling.70 [30] In his report, Mr Chenoweth opined that the bamboo would have been at least 6 metres tall when the respondents took possession of the land and that the bamboo culms and foliage would have been at or about the ceiling level of the 2nd level living area. In the joint report, Mr Chenoweth expressed the view that the bamboo would have been at least 5 metres to 6 metres tall at the time the respondents took possession. [31] The learned member was required to weigh the evidence and make a finding of fact as to the height and density of the bamboo at the time the respondents took possession of the land. The applicants are critical of what they say was the weight the learned member placed on certain photographic evidence as opposed to other photographic evidence. As we have observed, it is not an error to prefer certain evidence over other evidence and to make findings of fact accordingly. It was open to the learned member, on the evidence, to make the findings he did as to the height and density of the bamboo at the time the respondents took possession of the land. [32] The applicants say that the learned member erred in failing to consider the bamboo as part of the view at the time the respondents took possession of their property. In developing this argument, the applicants say that the learned member erred in failing to apply the relevant principles found in Laing & Anor v Kokkinos & Anor (No. 2) 65 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [57]. 66 Ibid, [51]. 67 Ibid, [53]. 68 Joint Visual Amenity Report of Alan Chenoweth and Leslie Curtis, 21 November 2016 (‘Joint Report’). 69 Ibid, Figure B7. 70 Ibid, Figures B8 and B9. -- 11 of 31 -- 12 (‘Laing’).71 The applicants say that the learned member failed to assess the totality of the views available from the dwelling at the time the respondents took possession. [33] The learned member found: The view that Mr Ortlipp and Ms Burgess seek to protect is a view filtered through sparse immature arching bamboo culms over and around the line of houses in front of their property and includes views of the houses to the north, the Brisbane River, Graceville riverside park, riverbank trees, Indooroopilly Island and the sky. The prominence of various aspects of that view will vary depending on the viewing location in the second level living area. … The value of the view is not limited to the views or glimpses of the river itself. The other elements, the park and the trees for instance are also important elements of the view. The northerly view from the second level is easily the most attractive view. The area from which the view may be seen contains the kitchen, dining and living rooms... 72 [34] It is clear from the reasons that the learned member identified the bamboo as part of the view from the dwelling at the date the respondents took possession. There was no error by the learned member. The extent to which the bamboo formed part of the view at the date the respondents took possession of the land was specifically considered by the learned member when he came to consider the appropriate orders in relation to the bamboo. We will address this aspect of the decision later in these reasons. [35] The applicants say that the learned member failed to take into consideration views from the dwelling in directions other than views to the north which were the views to the Brisbane River. [36] In Laing it was held: First, the Tribunal must consider what view existed when the applicant took possession of the property. Secondly, the Tribunal must determine whether the trees on the adjoining property are causing a severe obstruction of that view. Then, if they are, the third step requires the Tribunal to balance the interests of the parties considering the matters listed in Chapter 3, Part 5, Division 4 of the Act, namely, ss 72, 73 and 75.73 [37] The learned member found that the respondents had not attempted, in the application for a tree dispute or in their statements of evidence, to define the view from the dwelling. The learned member noted that Mr Ortlipp referred to the view as ‘urban vistas’ and the view ‘over and around (the applicants’) house.’74 In his report, and in the joint report, Mr Chenoweth opined that there were still river views available from the dwelling, unimpeded and unfiltered by the bamboo, from the 2nd level of the dwelling to the north east and to the north west. 71 [2013] QCATA 247. 72 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [58], [62]. 73 Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 [34]. 74 Op cit 72, [48]. -- 12 of 31 -- 13 [38] While the learned member does not specifically refer in his reasons to the views from the dwelling to the north east and to the north west (the former from the laundry and the latter from the western balcony), the learned member refers to the view as being ‘over and around the line of houses in front of their property and includes views of the houses to the north, the Brisbane River, Graceville riverside park, riverbank trees, Indooroopilly Island and the sky.’75 The reference to ‘houses’ is, in our view, a reference to houses including the applicants’ dwelling. It is, in our view, apparent that the learned member was referring to the totality of the views to the north, to the north-east and to the north-west. We accept that, in assessing the views from the respondents’ dwelling at the time they took possession, the learned member did not specifically refer to views from the dwelling to the west and the south. We will address this issue later in these reasons. [39] The applicants say that the learned member excluded other views of the river, riverside park, and riverside trees from other parts of the respondents’ dwelling including from areas immediately adjacent to the living areas. The applicants rely upon the following passage from the reasons: Both Mr Bowyer and Ms Whittle, and their expert Mr Chenoweth, point out that Mr Ortlipp and Ms Burgess still have views of the river from the western balcony and laundry on level two, comparable to those at the date of possession. Mr Ortlipp and Mr Burgess have not taken issue with that and that is not the view they seek to protect. In submissions Mr Bowyer and Ms Whittle say that Mr Ortlipp and Ms Burgess have ‘filtered partial views of the river available from the main living area like the ones they had at possession...’76 [40] In the passage relied upon, the learned member does not exclude from his consideration any aspect of the view. The learned member in fact refers to the views available from the western balcony and the laundry which the respondents said were comparable to those at the date they took possession. There was no error by the learned member in identifying and assessing the views from the dwelling at the time the respondents took possession. The findings about the views from the dwelling at the time of the hearing [41] The applicants say that the learned member failed to assess the view at the time of the hearing in accordance with the relevant principles identified in Laing. [42] The applicants say that the view from the respondents’ dwelling was never a panoramic one and was, at best, a partial view. The applicants say that at the time the respondents took possession, their views were already obstructed by the plants on the applicants’ land, the applicants’ house, other neighbouring houses and electricity poles. [43] The learned member made the following findings in relation to the views from the dwelling at the time of the hearing: [63] The northern wall of the second level is floor to ceiling glass. 75 Ibid, [58]. 76 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [65] (citations omitted). -- 13 of 31 -- 14 [64] Within 5m of that glass wall is a bamboo screen approximately 12m long and 6m to 10m high. Mature bamboo culms are visible from floor to ceiling from the western balcony … at the western end and the laundry at the eastern end. … [68] I agree with Mr Chenoweth that the bamboo does not completely block the views, but the parts of the view that are now available are so fragmented and devoid of context that the view as a whole is lost. It is possible to see certain elements of the view from certain viewing positions. It is, however, like looking at the pieces of an unassembled jigsaw puzzle. [69] Accordingly, I am satisfied that the northerly view from the second level living area is severely obstructed by the bamboo. I am satisfied that the view is nearly blocked out. 77 [44] The experts did not agree on the impact of the bamboo on the views from the respondents’ dwelling. The evidence before the learned member in the joint report was: (a) The bamboo had created a dense continuous hedge (per Mr Curtis); (b) The bamboo had grown taller and denser in the preceding two years and screened the applicants’ house and back garden from views through the large windows at the 2 nd and 3rd levels of the respondents’ house. While this had the effect of partly screening views to the river, glimpses of the river were still available, heavily filtered by two of the bamboo clumps (per Mr Chenoweth).78 [45] There were, appended to the joint report, a number of photographs of the bamboo taken approximately three months before the hearing.79 [46] The experts gave evidence at the hearing. While both experts agreed that the bamboo formed a hedge, their opinions differed as to the extent of the bamboo and its impact upon the respondents’ dwelling. For example, Mr Chenoweth considered the bamboo created a ‘light’ continuous hedge80 whereas Mr Curtis considered the hedge to be dense. Mr Chenoweth considered that the idea of the hedge being continuous was a relative term and that there were gaps between the plantings.81 [47] In addition to the evidence from the experts, the respondents also gave evidence about the views from their dwelling.82 [48] The learned member considered and weighed the evidence. It was open to the learned member to make the findings he did regarding the views from the respondents’ dwelling at the time of the hearing. 77 Ibid. 78 Joint Report, 3.3, 4.4.4. 79 Ibid, figures B1, B2, B3, B4, B5, B10, B11. 80 Transcript of proceedings in NDR044-16, 23 February 2017 (‘Transcript 23 February 2017’), 1-47, line 27. 81 Ibid, 1-48, line 8. 82 Transcript of proceedings in NDR044-16, 24 February 2017 (‘Transcript 24 February 2017’), 2-18. -- 14 of 31 -- 15 The assessment of the value of the views and the reasonableness of protecting the views [49] The applicants say a number of things about the view from the respondents’ dwelling and the findings by the learned member: (a) The view was across the side boundary of the property; (b) The view was not an iconic one; (c) The view was not a panoramic one; (d) The view was an oblique one. [50] The essential thrust of the applicants’ submissions is that the learned member erred in valuing the views from the respondents’ dwelling and in determining that it was reasonable to protect those views. [51] In Laing, the Appeal Tribunal referred to the decision in Tenacity Consulting v Warringah (‘Tenacity’)83 where Roseth SC adopted a four-step process for assessing the nature of the view with which there was interference caused by development. In Laing the Appeal Tribunal held that the process identified in Tenacity (relevant to tree disputes in the tribunal) is to: (a) Identify and value the type of views affected; (b) Identify the part of the dwelling from which the views exist and the reasonableness of protecting views from such areas; (c) Assess the impact of the interference to the views of the whole property, not just for the view that is affected. [52] The learned member considered Laing and Tenacity.84 The learned member identified and valued the view from the respondents’ dwelling.85 In doing so the learned member made no findings that the views were either iconic or panoramic. [53] For the reasons we have outlined, the learned member did not err in identifying the views from the respondents’ dwelling. Similarly, for the reasons we have outlined, the learned member did not err in identifying the parts of the respondents’ dwelling from which the views existed. [54] As to the reasonableness of protecting views from the respondents’ dwelling, and the applicants’ submissions that it was not reasonable for the respondents to seek to protect views from across the side boundary and oblique views, it is necessary to consider further the decision in Tenacity. [55] Tenacity was a decision of the Land and Environment Court of New South Wales involving an appeal against the refusal by Warringah Council of a development 83 [2004] NSWLEC 140. 84 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [59] - [61]. 85 Ibid, [62]. -- 15 of 31 -- 16 application to demolish an existing building and erect a mixed use, three-story building. The court was required to consider submissions by adjoining land owners that the proposed development would impact views from their properties. It is appropriate to set out in full the following passages from the decision: Principles of view sharing: the impact on neighbours 23 The Court heard the evidence of the owners of three properties to the north (42 Griffin Road, 7 Bellevue Place and 8 Bellevue Place), two apartments in Nos 70-72, and two objectors who are not directly affected. I shall concentrate on the impact on 7 Bellevue Place on the grounds that the impact is greatest on this property. The impact is primarily on views. 24 Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable. 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential -- 16 of 31 -- 17 and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 30 Applying the above principles to 7 Bellevue Place, I would classify the view to the ocean and Manly as highly valuable, what most people would describe as magnificent. It is now available from four levels from the rear. The proposal would obliterate views from the lower three levels from sitting and standing positions. From the fourth level it would obliterate it from sitting positions and reduce it from standing positions. In my opinion, the impact would be severe. 31 I turn to the reasonableness of the proposal. It breaches one of only two development standards, namely the requirement not to exceed two storeys. I note that it complies with the height limit of 8.5m. However, that height limit is a maximum. It does not entitle the applicant to a building envelope 8.5m high over the whole site. 32 The objectors were concerned also about privacy. The applicant has provided screens on the balconies facing north, so that there would be little overlooking from the proposal. A large setback and a generous area of deep landscaping would, however, achieve the same result without privacy screens that have a negative impact on the amenity of the balconies. 33 In my opinion, the proposal significantly and unreasonably reduces the amenity enjoyed by the occupants of adjoining residential land. It is not consistent with cl 39 of the LEP.86 [56] We respectfully agree with the decision in Laing that a consideration of the first three of the steps identified by Roseth SC is of assistance in undertaking the process of determining whether a tree severely obstructs a view. But the steps identified in Tenacity and referred to in Laing should not, in our view, be seen as a fixed multi- step test in determining whether a tree obstructs a view nor did the Appeal Tribunal in Laing express such a view. [57] The question of the reasonableness of protecting side views is relevant in a planning and development context, less so when one is considering the impact of a tree on a view. Roseth SC propounded the four-step assessment in determining whether ‘view sharing’ was reasonable. As was noted in Tenacity: The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment.87 [58] Assessing the impact of a tree upon a view from a neighbouring dwelling involves no notion of view sharing. Accordingly, we do not accept the submission by the applicants that there was any error by the learned member in not addressing, as separate and discrete considerations, that the views from the respondents’ dwelling were across the side boundary or were oblique views and that it was therefore unreasonable for the respondents to seek to restore such views. 86 Tenacity Consulting v Warringah [2004] NSWLEC 140, [23] – [33]. 87 Ibid, [25] (emphasis added). -- 17 of 31 -- 18 [59] In relation to oblique views, the applicants rely upon the decision of the Appeal Tribunal in Birnbaum v Akero (‘Birnbaum’).88 The applicants’ reliance is misplaced. The Appeal Tribunal in Birnbaum made no findings about oblique views. [60] The applicants say that the learned member found that relatively unobstructed standing, sitting and prone views were available from the viewing location at possession. We do not accept this submission. The learned member made no such finding. [61] The applicants say that protecting the views from the respondents’ dwelling exposed the applicants’ property to an unwarranted lack of privacy. These submissions are relevant to the making of the order in relation to the bamboo, not to the determination of whether the bamboo severely obstructed a view from the respondents’ dwelling. We will address this aspect of the applicants’ submissions later in these reasons. [62] In relation to the views from the respondents’ dwelling the applicants say that the learned member erred in failing to find that it was unreasonable to protect all of the views potentially available from all possible viewing positions within the whole of the living areas. The applicants also say that the learned member failed to consider the views available from the entirety of the dwelling, including the third level of the dwelling and the bedrooms on the second level of the dwelling, in assessing the impact of the view obstruction on the whole of the property. [63] The learned member noted that the respondents’ concerns regarding the obstruction of the views related to those views available from the living areas on the second level.89 The learned member found that if the obstruction of views from the second level was not considered severe it would not be considered severe on the third level.90 The evidence of the respondents was that the second level contained the main living areas of the dwelling91 and third level of the dwelling contained the main bedroom, an ensuite, and a western balcony.92 The western balcony was generally not used and the respondents did not spend a lot of time in the bedroom during daylight hours.93 The learned member refers in the reasons to the layout of the various levels of the dwelling.94 The evidence before the learned member was that the views from the living areas on the second level were to the north-east, the north and the north-west. We accept that the reasons do not reveal consideration by the learned member of the views to the west, east and south. We note that the visual amenity experts did not consider these views. The evidence before the learned member was that there were not a lot of window elevations on the eastern and western sides of the dwelling.95 The views to the south were from bedrooms on the second level and from the ensuite and walk in wardrobes on the third level.96 88 [2014] QCATA 18. 89 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225 [45]. 90 Ibid. 91 Transcript 24 February 2017, 2-16, lines 31 - 38. 92 Transcript 24 February 2017, 2-16, line 45, 2-17, line 1 - 9. 93 Ibid, 2-18, line 23. 94 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [17] - [20] 95 Transcript 24 February 2017, 2-23, lines 26-27. 96 Ibid, 2-23, lines 28-34. -- 18 of 31 -- 19 [64] The evidence before the learned member was that the views to the east, west and south of the respondents’ dwelling were principally from bedrooms, bathrooms and wardrobes on the second and third levels. The living areas comprised a significant part of the second level of the dwelling from which the views identified by the learned member97 were enjoyed. It was, in our view, understandable and entirely reasonable that the respondents, and the learned member, focussed upon these views when considering the impact of the bamboo. These were, after all, the main living areas of the house and the areas in which persons within the house were likely to congregate and spend time (at least during waking hours). The evidence before the learned member was that the most attractive views from the dwelling were available from the living areas. [65] The learned member undertook the assessment of the value of the views in accordance with the third step in Tenacity, having considered the impact on the views from living areas (which according to Tenacity is more significant than from bedrooms or service areas) and the kitchen (in relation to which Tenacity notes that views from kitchens are highly valued because people spend so much time in them). [66] There was no error by the learned member in valuing the views from the respondents’ dwelling. The findings about the severity of the obstruction of the views [67] The learned member made the following findings in relation to the obstruction of the views caused by the bamboo: [68] I agree with Mr Chenoweth that the bamboo does not completely block the views, but the parts of the view that are now available are so fragmented and devoid of context that the view as a whole is lost. It is possible to see certain elements of the view from certain viewing positions. It is, however, like looking at the pieces of an unassembled jigsaw puzzle. [69] Accordingly, I am satisfied that the northerly view from the second level living area is severely obstructed by the bamboo. I am satisfied that the view is nearly blocked out. … [75] The bamboo screen is planted to prevent the container house from overlooking 89 Nadine St from the second and third level. If it succeeds in that purpose it is almost inevitable that severe obstruction will be caused to the views from at least level two. That is in fact what has occurred. [76] The facts in this case can be contrasted with those in both Laing and Neverfail. This is not a case where neighbours are trying to protect segmented views from particular and precise viewing locations. Mr Ortlipp and Ms Burgess’ complaint here is the whole of the northern view from the second level has been severely obstructed. Mr Ortlipp’s oral evidence is that he feels ‘enclosed’ by the bamboo screen. My observations from the view support that. It is not possible from the second level looking north to determine where the house sits in its surroundings. There is no outlook, let alone a view. 97 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [58], [62]. -- 19 of 31 -- 20 [68] The applicants say that the learned member erred in a number of respects in finding that the obstruction of the view from the respondents’ dwelling was severe. [69] The applicants say that the learned member erred by ‘slicing up the view’ and by focussing on ‘the more desirable distant elements of the view.’ We do not accept this submission. [70] In Laing the Appeal Tribunal held in relation to the meaning of a ‘view’: I am persuaded the natural and ordinary meaning of the term, and the context in which it is found in the Act, is consistent with the approach adopted by the LEC: ‘a single view with various elements contained within, including the trees themselves, not multiple views requiring separate analysis.’98 [71] The learned member found that the views the respondents were seeking to protect were ‘over and around the line of houses in front of their property and include views of the houses to the north, the Brisbane River, Graceville riverside park, riverbank trees, Indooroopilly Island and the sky’ and that ‘(t)he prominence of various aspects of that view will vary depending on the viewing location in the second level living area.’99 [72] Similarly, the learned member observed that the view was ‘not limited to the views or glimpses of the river itself’ and that the ‘other elements, the park and the trees for instance are also important elements of the view’.100 The observation by the learned member that the northerly view from the second level was ‘easily the most attractive view’101 reveals that he considered other views from the dwelling. [73] It is also clear from the reasons that the learned member considered the views from the western balcony and laundry on the second level, finding that the bamboo did not severely obstruct such views. [74] We turn now to the grounds of appeal relating to the learned member’s findings regarding the severity of the obstruction of the view. [75] The consideration of whether an obstruction of a view is severe involves both a quantitative and a qualitative evaluation. In Rose Bay Marina Pty Limited v Woollahra Municipal Council and Anor (‘Rose Bay Marina’)102 the New South Wales Land and Environment Court considered the matters relevant to the evaluation of the obstruction of a view: The quantitative evaluation requires an assessment of the extent of the present view, the compositional elements within it and the extent to which the view will be obstructed by or have new elements inserted into it by the new development. In the absence of any planning document objective/aim, the fundamental quantitative question is whether the view that will remain after the development (if permitted) is still sufficient to understand and appreciate the nature of and attractive or significant elements within the presently 98 Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247, [45] (citations omitted). 99 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [58]. 100 Ibid, [62]. 101 Ibid. 102 [2013] NSWLEC 1046. -- 20 of 31 -- 21 unobstructed or partially obstructed view. If the view remaining (if the development were to be approved) will be sufficient to understand and appreciate the nature of the existing view, the fundamental quantitative question is likely to be satisfied. The greater the existing obstruction to a view, the more valuable that which remains may be (the desirability of preserving a partially obstructed view, however, will emerge from the qualitative evaluation process discussed below - it may be that preservation of a significantly obstructed view would be mere tokenism). On the other hand, the qualitative aspect of a public domain view assessment is much more nuanced. Such a qualitative evaluation requires an assessment of the aesthetic and other elements of the view. The outcome of a qualitative assessment will necessarily be subjective. However, although beauty is inevitably in the eye of the beholder, the framework for how an assessment is undertaken must be clearly articulated. Any qualitative assessment must set out the factors taken into account and the weight attached to them. Whilst minds may differ on outcomes of such an assessment, there should not be issues arising concerning the rigour of the process. As with Tenacity, a high value is to be placed on what may be regarded as iconic views (major landmarks such as the Opera House or the Three Sisters, for example, or physical features such as land/water interfaces). However, a view that is entirely unobstructed is also valuable.103 [76] The considerations set out in Rose Bay Marina assist in the process of evaluating the severity of the obstruction of a view in tree disputes in the tribunal. However, it is important to sound two caveats. Firstly, Rose Bay Marina involved the assessment of a public domain view. Secondly, we do not propound the use of a particular framework when undertaking a qualitative evaluation of a view. [77] As we have observed, the third step of the process in Tenacity Consulting involves an assessment of the extent of the impact of the obstruction of a view for the whole of the property, not just for the view that is affected. Roseth SC referred to: The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.104 [78] The third step of the Tenacity process overlaps to some extent with the requirement at s 66(2)(b)(ii) of the ND Act that a severe obstruction of a view must constitute a substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. Even if the tribunal finds, as a jurisdictional fact, that the obstruction of a view is severe, the tribunal must be satisfied that the interference with the use and enjoyment of the neighbour’s property is substantial, ongoing and unreasonable as a result of the interference. The importance of assessing the extent of the impact for the whole of the property and not just the affected view is obvious. A view from a laundry or bathroom may be ‘iconic’ however the impact of the 103 Ibid, [54] - [57]. 104 Tenacity Consulting v Warringah [2004] NSWLEC 140, [28]. -- 21 of 31 -- 22 obstruction of such a view in respect of the property as a whole is unlikely to be as significant as it would be if the view was enjoyed from living areas. [79] As was observed in Rose Bay Marina, the qualitative assessment of the obstruction of a view is necessarily a subjective one. The learned member found that the views from the living areas were obstructed by the bamboo. The learned member expressly considered the availability of views from various parts of level 2.105 He also expressly considered the views from the level 2 balcony and from the laundry.106 The learned member considered the aesthetics and the elements of the views. He found that the views were over and around the line of houses in front of the respondents’ property and included views of the houses to the north, the Brisbane River, Graceville riverside park, riverbank trees, Indooroopilly Island and the sky. The learned member found that the view was not limited to the views or glimpses of the river itself and that the other elements were also important elements of the view. The learned member found that the northerly view from the second level was the most attractive view from the dwelling. The learned member found that the bamboo did not completely block the views, but the parts of the view that were available were so fragmented and devoid of context that the view as a whole was lost. [80] Having undertaken the quantitative and qualitative assessment of the views and the extent of the obstruction of the views, the learned member found that the obstruction of the view was severe.107 The finding of a severe obstruction of a view was a finding of a jurisdictional fact.108 A jurisdictional fact has been characterized as ‘a condition of jurisdiction’,109 ‘a preliminary question on the answer to which … jurisdiction depends’110, ‘the criterion, satisfaction of which enlivens the power of the decision-maker’111. An error in finding, or in failing to find, a jurisdictional fact is an error of law. To purport to exercise jurisdiction in the absence of a jurisdictional fact is a jurisdictional error. [81] We are satisfied that: it was open to the learned member to make the factual findings he did in relation to the obstruction of views from the respondents’ dwelling; the facts as found fell within s 66(3)(b)(ii) of the ND Act as properly construed; the learned member identified and applied the relevant legal test in determining that the obstruction of the view was severe. [82] There was no error by the learned member. The findings that the severe obstruction of a view constituted a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of the land [83] The learned member, having found that the obstruction of the view caused by the bamboo was severe, went on to consider whether the obstruction constituted a 105 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [68]. 106 Ibid, [74]. 107 Ibid, [69]. 108 Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247 [35]. 109 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 429-430. 110 The Queen v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113, 125. 111 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148. -- 22 of 31 -- 23 substantial, ongoing and unreasonable interference with the use and enjoyment of the respondents’ land. [84] In identifying the factors relevant to the determination of whether the view obstruction was severe the learned member referred to the decision in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust & Anor v Radford (‘Neverfail’)112 where the Appeal Tribunal considered the meaning of the words used in s 66(2)(b)(ii) of the ND Act, ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’. In Neverfail the Appeal Tribunal identified a number of factors relevant to a consideration of interference for the purposes of s 66(2)(b)(ii).113 The learned member addressed each of these factors in the reasons.114 [85] The Appeal Tribunal in Neverfail noted that the common law requirements for establishing a nuisance are a substantial and unreasonable interference with the use and enjoyment of land. The test for establishing nuisance is an objective one.115 The hypersensitivity (if any) of the user or use of the plaintiff’s land is a relevant matter to which regard may be had in determining whether interference is unreasonable.116 [86] The applicants say that the learned member erred in taking into consideration an irrelevant consideration: that the respondents felt ‘enclosed’ by the bamboo. The learned member found: [76] The facts in this case can be contrasted with those in both Laing and Neverfail. This is not a case where neighbours are trying to protect segmented views from particular and precise viewing locations. Mr Ortlipp and Ms Burgess’ complaint here is the whole of the northern view from the second level has been severely obstructed. Mr Ortlipp’s oral evidence is that he feels ‘enclosed’ by the bamboo screen. My observations from the view support that. It is not possible from the second level looking north to determine where the house sits in its surroundings. There is no outlook, let alone a view. [87] The learned member referred to the complaint by the respondents regarding the severe obstruction of views and the evidence of Mr Ortlipp regarding his perception of the impact of the bamboo. At reasons [76] the learned member was, in our view, simply observing that the effect of the bamboo was to obstruct views from the second level of the dwelling. We note that the evidence of the applicants’ expert, Mr Chenoweth, was that from certain viewing places on the second level of the dwelling the bamboo appeared as a solid hedge.117 There was no error by the learned member. [88] The applicants say that the learned member erred in failing to find that the respondents were hypersensitive or abnormally sensitive to the applicants’ plants. They rely upon the evidence of Mr Ortlipp in the proceedings below that he felt ‘enclosed’ by the bamboo screen. 112 [2016] QCATA 203. 113 Ibid, [85]. 114 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [72] - [77]. 115 Norbury v Hogan [2010] QCATA 27. 116 Marsh v Baxter (2015) 49 WAR 1. 117 Transcript 23 February 2017, 1-50, lines 16 - 17. -- 23 of 31 -- 24 [89] The learned member referred to the applicants’ submissions that the respondents were hypersensitive.118 The learned member found: [73] Nor do I accept that Mr Ortlipp and Ms Burgess are hypersensitive, or abnormally sensitive, to the harm or interference caused. They did not design or build the container house. It is not unreasonable for them to retain the floor to ceiling glass already constructed. The adoption of a less sustainable approach by the introduction of lights and air-conditioners and the like will not assist the obstruction of the views and that is the obstruction complained of. [90] It was open on the facts for the learned member to find that the respondents were not abnormally sensitive. There was no error by the learned member. The matters considered under Chapter 3, Part 5, Division 4 of the ND Act in making orders about the bamboo. [91] If satisfied that orders should be made to address one or more of the matters set out at s 66(2)(a) and s 66(2)(b) of the ND Act, the tribunal may make appropriate orders. The discretion is a broad one. Section 66(5) of the ND Act sets out what tribunal orders may do, however the section does not otherwise fetter the powers of the tribunal in making orders. [92] Section 73(1) of the ND Act sets out the matters the tribunal must consider in deciding the appropriate orders in relation to a tree. Where unreasonable interference is alleged, s 75 of the ND Act sets out a number of matters the tribunal may consider in deciding appropriate orders. Although not relevant to the present appeal, s 74 of the ND Act sets out a number of matters the tribunal may take into consideration if it is alleged that a tree has caused, is causing, or is likely to cause serious injury or damage. [93] The applicants say that the learned member erred in placing undue weight on the restoration of the views from the respondents’ dwelling and insufficient weight on the use and enjoyment by the applicants of their land, including their right to privacy. The applicants say that the learned member failed to consider the impacts on the amenity of the applicants’ land if the respondents were provided with views from the kitchen, dining and lounge areas on level two of the dwelling.119 [94] The learned member considered the applicants’ submissions noting that ‘foremost’ among the matters raised by them was the contribution of the bamboo to the amenity of the applicants’ land.120 The learned member observed that the applicants were not residing at the property and referred to the absence of any evidence from any past or present resident of the property as to the discomfort caused by the respondents’ dwelling.121 [95] The learned member considered the evidence led by both parties in relation to the impact of the bamboo and of the respondents’ dwelling (respectively) on the values of their properties and, in the case of the applicants, the impact of the respondents’ 118 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [71]. 119 ND Act, s 73(1)(g). 120 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [82] - [85]. 121 Ibid, [87] - [89]. -- 24 of 31 -- 25 dwelling on the rental opportunities for their property.122 The learned member found the evidence of neither of the parties’ experts persuasive.123 Mr Duffield, the valuation expert relied upon by the applicants, was not prepared to quantify ‘the impacts’ of the respondents’ dwelling if the bamboo was ‘trimmed significantly or removed.’124 The learned member was entitled to make the findings he did in relation to the weight to be given to the parties valuation experts. [96] The applicants say that the learned member erred in placing little if any weight on the applicants’ evidence regarding amenity. They say that it was not relevant that they had not and were not residing at the property. In this respect, say the applicants, the learned member erred.125 The applicants refer to the evidence by the visual amenity experts, the valuer and the owner of another property adjoining the respondents’ land. The applicants say that the learned member erred in not placing sufficient weight on the objective evidence of these witnesses. [97] The learned member considered the evidence given by the parties, the visual amenity experts, and the valuers. There is no indication that the learned member failed to consider relevant evidence. It is readily apparent from the reasons that the learned member considered the evidence of, and submissions by, the applicants in relation to the privacy they said the bamboo afforded them. [98] The applicants refer to the evidence of Ms Baker, another neighbour of the respondents and say that the learned member failed to give sufficient weight to her evidence. The learned member considered and rejected the evidence of Ms Baker in relation to the construction of the dwelling on the respondents’ land. It is difficult to see how any evidence by Ms Baker in relation to the impact of the dwelling on the amenity of her land was relevant to the dispute between the parties. In any event there was no error by the learned member in not giving weight to Ms Baker’s evidence. [99] The applicants are critical of the reference by the learned member to the absence of evidence from persons residing at the applicants’ property as to any discomfort caused by the respondents’ dwelling. The simple fact is, there was no such evidence. [100] The applicants say that the learned member erred in finding that they had no intention of residing at the property. In their appeal submissions, the applicants say that they have from time to time contemplated living at the property. The evidence before the learned member was that the applicants had not prior to the hearing resided, and were not at the time of the hearing residing, at the property. The evidence of the applicants was that if and when they developed the property they would undertake construction of a dwelling on the land. The learned member referred to this in the reasons.126 There was no evidence before the learned member that the applicants intended residing in the house at the property. There was no error by the learned member. [101] The essence of the submissions by the applicants in relation to the learned member’s findings regarding the amenity provided by the bamboo is that the learned member, 122 Ibid, [91]. 123 Ibid, [92]. 124 Statement of Geoffrey Duffield, applicants’ appeal book at page 288. 125 Referring to Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [87] - [88]. 126 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [86]. -- 25 of 31 -- 26 by not giving sufficient weight to the applicants’ evidence, made findings of fact with which they disagree. As we have observed, there is no error in making findings of fact which have a rational support in the evidence. [102] The applicants say that the learned member erred in placing any weight on the evidence of Mr Curtis. They say that Mr Curtis did not inspect the properties nor is he a trained horticulturalist. The applicants essentially restate many of the same arguments they rely upon in submitting that the learned member erred in finding a severe obstruction of a view. We do not accept the applicants’ submissions. [103] No objection was taken by the applicants to the evidence of Mr Curtis nor was his expertise questioned either before or at the hearing. The applicants’ say that Mr Curtis’s evidence regarding the proposed trimming of the bamboo to 3 metres should not have been relied upon by the learned member as Mr Curtis’s opinion was directed at addressing all of the respondents’ complaints regarding the bamboo including the obstruction of views. But that was not Mr Curtis’s evidence. Mr Curtis was asked in cross examination, in the context of views, what his ‘solution’ would be if the bamboo was found to cause an unreasonable and ongoing interference with the respondents’ land. His evidence was that the bamboo be maintained at 3 metres in height.127 [104] The learned member was entitled to place such weight as he considered was appropriate on the evidence of the witnesses, including Mr Curtis. There was no error by the learned member. [105] The applicants say that the learned member placed little if any weight on the evidence of witnesses, other than the applicants, in relation to the contribution made by the bamboo plants to the amenity of the applicants’ land. As we have observed, the learned member considered and weighed the evidence of all the witnesses. It is not an error to prefer the evidence of one witness over another or to give greater weight to the evidence of one witness than another. [106] The member’s factual findings in relation to the amenity provided by the bamboo plants were open on the evidence. [107] The applicants say that the learned member failed to consider the matters at s 73(1)(e) of the ND Act. As we have observed the tribunal must consider the matters at s 73(1) of the ND Act in deciding an application for an order about a tree. Section 73(1)(e) provides that the tribunal must consider: Any contribution the tree makes to the natural landscape and the scenic value of the land or locality. [108] The evidence before the learned member relevant to s 73(1)(e) was scant at best being essentially limited to the assertion by the applicants’ that the Graceville and Chelmer areas were very green and leafy and that bamboo plants had been used extensively by others in the area.128 The applicants relied upon photographs of five properties. There was no evidence by the applicants’ expert regarding the contribution made by the bamboo to the natural landscape and the scenic value of the applicants’ land or the locality. 127 Transcript 23 February 2017, 1-25, lines 37-38. 128 Applicants’ affidavit filed 21 November 2016 at [68]. -- 26 of 31 -- 27 [109] It is an error of law to fail to take into consideration a relevant consideration. Guidance from decisions in relation to administrative decision making are of assistance in considering whether there is error in failing to consider a relevant matter in circumstances where such failure would not have materially affected the original decision. Where it is concluded that the consideration was so insignificant that the failure to take it into account could not have materially affected the decision, there is no error.129 [110] In order for the learned member to consider the matters at s 73(1)(e), the applicants were required to place before the Tribunal cogent evidence. The mere assertion by the applicants that certain suburbs in Brisbane are ‘green and leafy’ and that bamboo plants had been used extensively ‘by others in the area’ was not, in our view, cogent evidence. Neither the ‘area’ referred to, nor who ‘others’ are was elaborated upon by the applicants. Nor were the photographs of other properties of any relevance noting that they were, at best, depictions of bamboo planted at various locations. [111] Any failure by the learned member to consider the matters at s 73(1)(e) of the ND Act was inconsequential and could not realistically have affected the decision below. [112] The applicants say that the learned member failed to consider that the respondents’ dwelling contributed to the interference alleged by the respondents. They rely upon s 75(a) of the ND Act. Unlike s 73(1) of the ND Act, the tribunal may consider the matters set out in s 75 of the Act if unreasonable interference is alleged by a neighbour. As such, in exercising his discretion, the matters at s 75 were not relevant considerations the learned member was required to consider.130 There was no error by the learned member. The orders made in relation to the trees [113] The applicants say that the learned member made a number of errors in the exercise of his discretion to make orders about the trees. The learned member ordered that the applicants reduce the height of each of the bamboo plants to 3 metres from ground level. Seven trees were identified in the proceedings below – one mock orange and six stands of bamboo comprising three separate species, Gracilis, Black Timor and Barbelletta. [114] The applicants say that the learned member erred in failing to evaluate the impact of each tree on the views from the respondents’ dwelling. They say that the learned member should have analysed each bamboo plant and made relevant findings. We do not accept this submission. It is clear from the reasons that the learned member did consider selective pruning of the bamboo plants. [115] The learned member noted the applicants’ submissions that each bamboo plant should be considered separately to determine if or how it interfered with the view.131 The learned member found that the bamboo plants formed a hedge.132 That finding was available on the evidence. The applicants’ own expert, Mr Chenoweth, referred 129 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24. 130 ‘Relevant’ considerations being mandatory considerations – see Lo v Chief Commissioner of State Revenue [2013] NSWCA 180. 131 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [111]. 132 Ibid [113]. -- 27 of 31 -- 28 to the bamboo as a continuous hedge.133 The learned member considered selective pruning of the bamboo.134 [116] The applicants say that the learned member erred in finding: [112] Mr Chenoweth in suggesting a pruning of the Timor Black species is the only consideration given by any witness to the selective pruning or management of the bamboo generally, but as I have found that is on the incorrect assumption that the view is confined to the river views available from the western balcony and laundry. [117] The error by the learned member, say the applicants, was in finding that the selective pruning evidence of Mr Chenoweth was limited to the river views from the western balcony and laundry on level two. The applicants say that this was not the evidence of Mr Chenoweth. We disagree. [118] Mr Chenoweth gave evidence regarding what he considered were unobstructed views of the river from the respondents’ dwelling and what he considered were filtered views.135 The unobstructed views were, on level two, from the western balcony and laundry.136 The filtered views were from the level two living areas.137 Mr Chenoweth gave evidence that a river view is prized.138 [119] Mr Chenoweth gave evidence about the pruning of the bamboo.139 He also gave evidence about the view from the western balcony.140 Mr Chenoweth was asked a series of questions by Mr Bowyer in relation to the view from the balcony. Mr Chenoweth gave evidence in relation to the pruning of one of the stands of Timor Black bamboo. His evidence related to the effect of the proposed pruning on the view from the western balcony. As the learned member correctly found however, the view from the respondents’ dwelling was not confined to the river views available from the western balcony and the laundry. [120] We are satisfied that the reasons reveal the learned member, in considering selective pruning of the bamboo, considered the individual plants in evaluating the impact of the bamboo upon the views from the respondents’ dwelling. [121] The applicants say that the learned member erred in formulating the final orders in an attempt to force the bamboo plants to a state similar to what they were in at the time of possession. In doing so, say the applicants, the learned member took into consideration an irrelevant consideration. The applicants say that the orders made by the learned member reflect an erroneous approach – that is, restoring the trees to their appearance at the time the respondents took possession. We disagree. The learned member found that the views from the respondents’ dwelling at the time 133 Transcript 23 February 2017, 1-47, line 26. 134 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [26], [28], [57], [74], [103], [111], [112], [113], [114]. 135 Transcript 23 February 2017, 1-39, lines 22 - 26; Transcript 23 February 2017, 1-41, lines 33 - 39. 136 Exhibit 7. 137 Exhibit 5. 138 Transcript 23 February 2017, 1-43, lines 27 - 28. 139 Ibid, 1-58, lines 11 - 15; 1-71, lines 39 - 47; 1-72, lines 1 - 14; 1-74, lines 38 - 40; 1-75, lines 44 – 46. 140 Ibid, 1-74, line 43; 1-76, line 4. -- 28 of 31 -- 29 they took possession included the immature bamboo culms.141 He found that it was not possible to restore that exact view.142 The learned member found that if the bamboo was pruned every 2 years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the container house.143 The learned member’s focus was upon the views. There was no error by the learned member. [122] The applicants say that the learned member erred in his understanding of the growth of bamboo and that this error affected the exercise of his discretion. The learned member found: [109] On Mr Chenoweth’s evidence, the bamboo will continue to shoot new culms which will grow, on his estimate, approximately 2.7 to 3m per year. If the bamboo was pruned every 2 years, the tips of the immature culms could be expected to be visible as they were at the time of possession from the second level of the container house.144 [123] The applicants say that it can be inferred from the reasons that the learned member, in making the final orders, was allowing for a ‘margin of safety’ for the respondents’ viewing corridor. The applicants appear to be saying that the learned member ordered the bamboo to be cut to a level of three metres to permit it to grow to the level it was at when the respondents first took possession before the applicants are required to biennially prune it. [124] Mr Chenoweth gave evidence about the growth habits of bamboo145 and the effects of pruning bamboo.146 He also gave evidence about his estimates of the annual growth of the bamboo.147 Mr Chenoweth gave evidence that the pruning of the bamboo and the resulting hedging effect would afford greater privacy to the applicants’ property.148 The learned member accepted that pruning the bamboo would create a denser hedge. Having made the findings to which we have referred in relation to the views that existed when the respondents took possession of their land, it was open to the learned member to find that pruning the bamboo to a height above three metres would result in a hedge screen which did not exist at the date of possession. Further, there is nothing in the reasons to suggest that any ‘margin of safety’ was considered, or allowed for, by the learned member. [125] The applicants say that the learned member erred in finding that Mr Bowyer had declined to offer an opinion as to the height to which the bamboo might be reduced and that the applicants offered no evidence or submissions in relation to selective pruning of the bamboo. [126] As to the first point, there was a lengthy exchange between Mr Bowyer and the learned member at the hearing in relation to what the applicants’ views were regarding a reduction in height of the bamboo.149 At numerous points during that 141 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225, [107] - [108]. 142 Ibid, [107]. 143 Ibid, [109]. 144 Ibid. 145 Transcript 23 February 2017, 1-38 lines 1 - 12 146 Ibid, 1-48, lines 41 - 46; 1-49 lines 1 - 16. 147 Ibid, 1-56, lines 2 - 5; 1-63 lines 34 - 37. 148 Ibid 1-64, lines 43 - 46; 1-64 lines 2 - 4. 149 Transcript 24 February 2017, 2-39 - 2-44, line 10. -- 29 of 31 -- 30 exchange, Mr Bowyer declined to offer an opinion as to the specific height to which the bamboo could be reduced. There was no error by the learned member. Even if there had been an error as asserted by the applicants nothing turns on it. [127] As to the second point, at reasons [113] the learned member found that the applicants had not offered any option for a solution involving selective pruning of the bamboo. We are satisfied that what the learned member was referring to was a clearly articulated submission by the applicants in relation to the management of the six stands of bamboo other than one involving the maintenance of the status quo. As we have referred to, a lengthy exchange took place between the learned member and the applicants during which the learned member sought to elicit from the applicants submissions regarding the orders they said should be made. The learned member made clear during the hearing that the applicants were not obliged to offer a solution.150 Whilst the applicants offered some suggestions as to how the bamboo might be pruned, their submissions were qualified and somewhat vague. It was, in our view, open to the learned member to find that the evidence and submissions by the applicants were not an option for a solution involving selective pruning of the bamboo. [128] The learned member was required to exercise a discretion in deciding the appropriate orders to make in relation to the bamboo. [129] The meaning of a ‘discretion’ was considered by the High Court in Norbis v Norbis151: ‘Discretion’ signifies a number of different legal concepts … Here the order is discretionary because it depends on the application of a very general standard — what is ‘just and equitable’ — which calls for an overall assessment in the light of the factors mentioned in [the statutory provision], each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends. [130] The rules governing when a court or tribunal will upset a discretionary decision were settled in House v The King152 where the High Court held: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way 150 Ibid, 2-39, line 8. 151 (1986) 161 CLR 513. 152 (1936) 55 CLR 499. -- 30 of 31 -- 31 there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.153 [131] For the reasons set out we are not persuaded that, in making the final orders, the learned member erred in law including in acting upon a wrong principle. We are not persuaded that the learned member made any mistake as to the facts, relied upon an irrelevant consideration or ignored a relevant consideration or gave inappropriate weight to any such consideration. Final orders [132] The applicants have failed to establish their grounds of appeal. Insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed. 153 Ibid, 504-505. -- 31 of 31 --