Birnbaum v Akero [2014] QCATA 18

CITATION: Birnbaum v Akero [2014] QCATA 18 PARTIES: Erich Birnbaum (Applicant/Appellant) v Oddvar Inge Akero (Respondent) APPLICATION NUMBER: APL227-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member O'Callaghan Member Ryan DELIVERED ON: 4 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal dismissed. 2. Application for leave to appeal refused. Appeal and leave to appeal – whether error of law in finding that the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld) applied to trees planted before the commencement of the Act – distinguishing questions of mixed fact and law – whether Tribunal made required findings under s 66(3)(b)(ii) – whether Tribunal erred in finding the neighbour had a less obstructed view than currently when he took possession of his land – whether evidence supported inferences – where error of law identified on appeal in decision on which member relied in assessing ‘severe obstruction’ Procedure – whether fresh evidence to be adduced Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 61, 66(2)(b)(ii), 66(3)(b)(ii), 72, 73, 75 Queensland Civil and Administrative Tribunal -- 1 of 15 -- 2 Act 2009 ss 28(3)(b) and (c), 42(3), 43, 100, 142(3)(b) Seymour v Racing Queensland Ltd [2013] QCATA 179 Ash Industries Pty Ltd v Plumb [2010] QCATA 53 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 S.C.R. 748 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mahoney v Corrin [2013] QCAT 318 La Macchia v Minister for Primary Industries (1986) 72 ALR 23 Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 Thomsen v White [2013] QCATA 37 William & Anor v McConochie & Anor [2013] QCATA 314 Reisner v Bratt [2004] NSWCA 22 Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435 Ray White Ipswich Property Management v Burns [2011] QCATA 123 (23 May 2011) Kokkinos & Anor v Laing & Anor [2012] QCAT 580 Tenacity Consulting v Warringah [2004] NSWLEC 140 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Senior Member O’Callaghan [1] In this matter, I have had the benefit of reading Member Ryan’s reasons in draft. I agree with her reasons, and conclusions, and the order she proposes. -- 2 of 15 -- 3 Member Ryan Basis of the Application [2] This is an appeal and an application for leave to appeal a decision of the Queensland Civil and Administrative Tribunal (the Tribunal) made under the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld) (the Act). Legislation [3] The Act gives the Tribunal jurisdiction to decide and make orders about any tree which ‘affects’ a neighbour’s land.1 In order to ‘affect’ land, the tree must cause, or be likely to cause within the ensuing twelve months, interference with use and enjoyment of their land. The interference must be shown to be substantial, ongoing and unreasonable2. [4] The obstruction of a view by a tree can be interference.3 The tree must be at least 2.5 metres above the ground, the view must be from a dwelling and have ‘existed when the neighbour took possession of the land’, and the obstruction must be ‘severe’. The Tribunal must act on the principle that the destruction of living trees is to be avoided, unless there is no other satisfactory resolution4, and must consider the matters set out in s 73 of the Act. Background [5] Oddvar Akero and Erich Birnbaum live in adjoining properties in Murarrie, Brisbane. The respondent’s property has a higher elevation, the rear joining the side boundary of the applicant’s property, and looking across it in the direction of Brisbane city. Each bought land when the estate was first developed, and built a home there. There are trees in the applicant’s back garden, identified in the Tree Assessment Report5 as a Buckinghamia Celsissima, an Araucaria Heterophylla and a pinus species. The respondent is a ‘neighbour’ under the Act, and the applicant a ‘tree keeper’. The Dispute [6] The respondent commenced proceedings in the Tribunal on 17 August 2012 seeking unspecified orders relating to trees on the applicant’s property which he claimed were blocking his pre-existing views of Brisbane city from his dining room and living room, and the main parts of his balcony. 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 61. 2 Ibid, s 66(2)(b)(ii). 3 Ibid, s 66(3)(b)(ii). 4 Ibid, s 72. 5 Tree Assessment Report dated 14 November 2012. -- 3 of 15 -- 4 [7] The applicant contended that his trees had been planted before the Act came into affect and the Act did not apply to his trees. He also said that he needed the privacy the trees provided and that there were possums on his property which needed the trees as their home. [8] On 10 September 2012, the Tribunal directed that an appropriately qualified arborist be appointed to conduct an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.6 The inspection took place on 15 October 2012. The report found each of three trees well exceeded 2.5 metres. It recommended that one of three trees was not obstructing the view, and that the other two could be pruned to a suitable height, with one also being thinned. The report indicated that the parties agreed on the day of inspection that one of the trees be pruned to gutter height, and that one could be left untouched. The third tree remained in dispute. Hearing [9] The matter was heard on 29 April 2013. The applicant abandoned the agreement and the Member made orders that within 60 days and at his own cost the applicant, the tree keeper, prune and maintain the Buckinghamia Celsissima to roof gutter height, and prune and thin and maintain the pinus species to roof gutter height to provide privacy for the applicant and city glimpses for the respondent. Application for Leave to Appeal or Appeal [10] The applicant seeks leave to appeal and to appeal that decision. An appeal lies as of right on a question of law, but leave is required for an appeal on questions of fact or mixed fact and law7. [11] The grounds of appeal and for leave to appeal are set out in the applicant's summary of submissions, prepared by his legal representative, summarised as follows: 1. The Member erred in finding the Act applied to trees planted before the commencement of the Act in or about November 2011. 2. The Member did not make a finding about views from the respondent’s land when he took possession of his land. The Member did not have evidence as to the view at that time. An essential element of section 66(3)(b)(ii) of the Act was not established. Fresh photographic evidence shows the respondent's view was blocked by other trees on the applicant’s land which were removed before his home was built. 3. The Member erred in finding the view was ‘severely restricted’. The respondent’s current view was not more restricted than it had been when he took possession of his land because other trees had blocked 6 Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013, Arrangements for applications for orders to resolve other issues about trees, 1 July 2013. 7 QCAT Act s 142(3)(b). -- 4 of 15 -- 5 his view at that time. The respondent had no view when he took possession. [12] The respondent asserts there was no error of fact or law, and both parties had had ample opportunity at the hearing to give their evidence. Photographs should have been provided at the time. If new evidence was to be admitted, he sought to rely on further photographs and detailed explanations, to refute the applicant's contention and show that he had had a city view when he took possession of his property. [13] An appeal as of right is limited to the issue of law and can result in a decision to remit the matter to the Tribunal with directions. An appeal by leave8 is a rehearing, allowing for the adducing of further evidence. They do arise together, and are dealt with together, and it is important that a substantive right to appeal is not treated as a matter requiring leave.9 [14] In a 2010 appeal decision, Justice Wilson, the Tribunal’s President (as he then was) considered10 the distinction between questions of law and questions of mixed fact and law and relied on a Canadian decision11: .....questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [15] His Honour went on to refer to a High Court decision12: Mason CJ observed that the question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can be drawn from facts found, or agreed; and, that the making of findings or the drawing of inferences in the absence of evidence is an error of law. [16] There is a right of appeal on the first ground which raises a question of law. The second and third grounds raise questions of mixed law and fact, The Appeal Tribunal will consider the appeal, the application for leave to appeal, and any appeal by leave, on the papers as directed by the Tribunal on 5 June 2013. Ground 1: The Act does not apply to trees planted prior to November 2011 [17] The appellant submits that there is a general presumption that an Act of Parliament is not retrospective. There being no express provision that the Act applied to trees planted before 2011, to construe it in that way would be retrospective. 8 Ibid. 9 Seymour v Racing Queensland Ltd [2013] QCATA 179. 10 Ash Industries Pty Ltd v Plumb [2010] QCATA 53 at [15]. 11 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 S.C.R. 748 at 35, cited Ibid. 12 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, cited in Ash Industries Pty Ltd v Plumb [2010] QCATA 53 at [16]. -- 5 of 15 -- 6 [18] The respondent contends that the Act applied in this case because his land was ’affected’ by the applicant's trees at the date of his application. [19] The Member dealt with this succinctly in outlining the requirements of s 46(a)(ii)(C) of the Act13: ‘...The relevant date is when the land is affected’. [20] Retrospectivity and s 66 of the Act has been comprehensively considered by Wilson J in July 201314. Citing remarks in a High Court decision15 that ‘The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed’, Wilson J said of s 66 of the Act:16 Section 66 of the NDA is, in my view, of a similar kind and, on its face, Parliament intended that the Tribunal would have jurisdiction to make an order to prevent a severe obstruction of a view which existed when the applicant took possession of the land, even if that occurred before the commencement of the Act. [21] His Honour observed further17: There is another compelling reason to construe s 66 in this way, at least in the present context concerning views: the use of the phrase '...a view...that existed when the neighbour took possession of the land' is, in the absence of any words in that part of the NDA suggesting that it only applies to parties who took possession after the Act came into effect, a strong indication that Parliament intended to allow a remedy to persons whose views existed in the past, pre-NDA, but had then been lost. [22] The Appeal Tribunal relies on this decision, concluding the Member made no error of law in finding that the Act applied in the case before him. The appeal on this ground is dismissed. Ground 2: a) The Member made no finding as to the view that existed when the respondent took possession of his land, and there was no evidence of the view that existed at that time. An element of s 66(3)(b)(ii) was not established. b) The respondent did not have a view when he took possession because there were other trees on the applicant’s property which blocked the view. Photographs have now been provided to demonstrate this. [23] This ground contains questions of mixed fact and law. The considerations in deciding whether to grant leave to appeal have been often judicially considered18. Wilson J summarised them as follows (footnotes omitted):19 13 Transcript page 30, line 27-8. 14 Mahoney v Corrin [2013] QCAT 318. 15 La Macchia v Minister for primary Industries (1986) 72 ALR 23 at 26. 16 Mahoney v Corrin [2013] QCAT at [27]. 17 Ibid, at [30]. -- 6 of 15 -- 7 The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage? [24] His Honour went on to consider the three step approach the Tribunal must take in making orders under of s 66(3)(b)(ii)20: 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. Within this framework, a 'severe obstruction' may be categorised as a jurisdictional fact: 'a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question'.21 As a consequence, the absence of such a finding will invalidate an order made under s 66 of the Act. [25] The Appeal Tribunal considers that a finding as to the view that existed ‘..when the neighbour took possession of the land’ may also be considered a ‘jurisdictional fact’ upon which the Tribunal’s powers to make orders under s 66(3)(b)(ii) are dependant. The Member's findings [26] The Member delivered an oral decision. The Appeal Tribunal and the parties have had access to the transcript of the hearing and the decision. [27] Wilson J made these remarks22 in considering the level of scrutiny appropriate to oral decisions: In QCAT’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload. That proposition is not exclusive to the minor civil disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]: ‘It is not appropriate to parse and analyse judgments given on an ex temporare basis by judges of the District Court, who have a considerable caseload.’ 18 Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282. 19 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [29]. 20 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [34]. 21 Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139. 22 Ash Industries Pty Ltd v Plumb [2010] QCATA 53 per Wilson J at [13]. -- 7 of 15 -- 8 [28] Approaching the reasons with this in mind, they show the Member identified the elements of s 66(3)(b)(ii) of the Act23:‘...if the interference relates to a view, the Tribunal may only make an order if the obstruction to the view is severe and the view existed when Mr Akero took possession of the land…’. [29] They also show that the Member made both express and implicit findings as to the existence of a city view at the time the respondent ‘took possession’ including: Mr Akero gave sworn oral evidence that when he took possession of his property in late 1999, he could see the whole of Brisbane city from his house.24 The applicant did not dispute that the trees blocked Mr Akero's view. He admitted that he planted the trees no earlier than late 2000, after Mr Akero took possession of the property. 25 Because I have found that the trees severely obstruct the view that Mr Akero enjoyed when he took possession of his property, I may make an order to remedy, restrain or prevent the interference under s.66(2)(b)(ii) of the Act. 26 [30] The Tribunal is not bound by the rules of evidence, and may inform itself in any way it sees fit27. The relevant evidence before the Member included:  The respondent’s reasons in his Application: ‘The land and house was purchased because of the view, in 2000 and when my neighbour built his house in Moonie Av, there was no lose (sic) of the view, the view was lost about two years after the trees were planted...’  A copy of a letter submitted with the original application dated 20 December 2011, unsigned but with the respondent’s name as the author at the bottom, and addressed to the applicant begins: ‘When you first moved in next door I invited you and your son over for drinks and general conversation, we stood on my rear balcony overlooking your house and the view of the city of Brisbane that you admired,...’.  Although the Member did not refer to them, the respondent provided two unsworn ‘testimonials’ purporting to attest to the existence of ‘spectacular’ city views from the living areas and balcony of the respondent’s home28.  The expert evidence before the Member, the Tree Report by Mr Stovell29, states that the respondent moved to his block 13 years earlier, that his property was elevated ‘with city views’, and that ‘Clearly the design of the Applicant’s home is centred around the city views’. 23 Transcript page 30 lines 34-46. 24 Ibid lines 39-40. 25 Ibid line 42. 26 Ibid page 32 at line 10. 27 QCAT Act s 28(3)(b) and (c). 28 Applicant’s submissions. 29 Tree Report page 2. -- 8 of 15 -- 9  In the respondent’s original summary of submissions30 he states that the property was purchased for the city views, that enquiries had been made which satisfied him that a building would not be able to block the views, and that his house was designed as an ‘upside down house’ with the living areas on the upper rather than the lower floor, to take in the city views. Photographs showing the view in 2004 before the applicant's trees grew were provided.  There were many references in the materials and at the hearing to the obstruction of the respondent's view caused by trees which had been planted on the applicant's property after the respondent took possession of his property which were not disputed by the applicant.  The respondent’s oral evidence about the pre-existing view: ‘The view sitting from the balcony, right, we saw the whole city from dining with friends, in my kitchen and my dining area…’. 31  The Member put to the applicant directly that the respondent had a view when he moved to his property (in 1999), and that the applicant later planted the trees which then obstructed the respondent’s view. The applicant said in response that the three trees covered in the tree report were planted in 2000, 2002 and 2004 respectively. The applicant did not dispute the relevance of the evidence.  The Member asked the applicant to address a key proposition on several occasions32 and rephrased it in several ways including as follows:33 ‘…if Mr Akero can establish that he had a view when he moved in and since then that the view has been severely obstructed by the trees, then he is entitled to orders that restores his view. That is what I would like you to address Mr Birnbaum, if there is anything you would like to say in response to that.’ The applicant’s response was not on point, the Member put the issue again; his answer made no reference to pre-existing trees or a pre-existing obstruction to the view.  The Member asked if the respondent here had any photographs of the view before and after the trees were planted.34 The respondent referred to the photograph dated 3 January 2004 (Exhibit 1) as having been taken before the trees were planted. The applicant did not query or challenge the date or relevance of the January 2004 photo. [31] The applicant gave sworn oral evidence at the hearing, written submissions in a two page letter, but did not provide photographs. Nor did he challenge the implicit assumption that as the trees in question, on his own evidence, were planted between 2000 and 2004, and the respondent took possession in about November 1999, evidence from 2004 sufficed as evidence of the view at the time he took possession. 30 Applicant’s submissions at first instance page 2. 31 Ibid page 13 at line 20. 32 Ibid page 11 at line 45; page 13 at line 32; page 23 at line 40; page 24 at line 34. 33 Ibid page 24 at line 34-46. 34 Ibid page 13 at line 31 onwards. -- 9 of 15 -- 10 [32] The applicant now contends that ‘there was no evidence that Akero (sic) had a view of the city when possession was taken of the Akero land’. The Appeal Tribunal finds there was evidence before the Member and the Member made findings required under by the Act. Was the Member entitled to draw the inferences made from the evidence? [33] As succinctly summarised in an appeal decision35: ‘The role of the Appeals Tribunal is to determine whether there has been some demonstrated error on the part of the original decision maker’. And further: The question is whether the findings by the Member reveal a relevant error which gives rise to the need to correct a substantial injustice in this case......The findings of fact.....were based on evidence clearly before the Member and on inferences that could properly be drawn from that evidence. [34] In a recent decision of the Appeal Tribunal36, Senior Member Stilgoe said: ‘An Appeal Tribunal will not usually disturb the findings of fact on appeal if evidence is capable of supporting the conclusions’. [35] The applicant cites the following passage of his own oral evidence as evidence of the view in 199937, despite also making the submission that there was no evidence of the view in 1999: I bought, I made pictures in 1999 when I bought the land and the back yard and the area from my back yard growing two big trees. They cut it. I don’t know why, it’s possible for the land filling or for the waste line in the underground and after the building from the house we had no restrictions regarding trees. My gardener reinforced on the ground three trees and two and three years later I plant two pine trees. This is all what I can say. He lost only the city view. I lost the city view too through the palms from the other neighbour..... [36] The applicant says of this passage 38‘Although my spoken English is not good, in the above passage I refer to the two large trees in 1999 - these trees completely blocked Mr Akero's view when he took possession 9see (sic) the attached photo taken in 1999). [37] This was an oblique reference rather than clear evidence of pre-existing trees, and its meaning and implication was opaque without the considerable additional explanation and interpretation now provided by the applicant's legal representative. In its context, it is difficult to see that the meaning now attached to it was intended by the applicant at the time of the statement. [38] Much of the transcript shows attempts to resolve confusion as to the identification of each tree. The applicant did not dispute the relevance of that discussion. He did not at any time say or imply: The respondent did 35 Thomsen v White [2013] QCATA 37. 36 William & Anor v McConochie & Anor [2013] QCATA 314 at [7]. 37 Transcript page 10 line 35. 38 Applicant's submissions, page 3, [14(a)]. -- 10 of 15 -- 11 not have a view when he moved in because there were other pre-existing trees on my land blocking his view. [39] The applicant has referred to his limited English. He was assisted at the hearing by an interpreter and the Member expressly asked him to interrupt if there was anything he didn’t understand, because he wanted to make sure he had a fair hearing. [40] In Lida Build Pty Ltd v Miller [2010] QCATA 17 Wilson J said, referring to s 29 of the QCAT Act: ...s 29...requires that the Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions, and any decision of the Tribunal relating to the proceeding. While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed to self representative litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case. [41] The duty to self represented litigants does not extend to impinging on a tribunals impartiality as adjudicator.39 It is not the tribunal’s duty to make the case for a party. Tribunals are inquisitorial and not bound to make decisions within the confines of matters raised by the parties, but if there is any ‘duty to enquire’ it is very limited. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009) the High Court’s view was that a duty to enquire was not ordinarily a requisite of the rules of procedural fairness. [42] The Appeal Tribunal finds the Member outlined the implications for the applicant here of a finding that the respondent had an unobstructed view when he took possession on more than one occasion. The evidence and decision proceeded on the basis that there was no dispute about the dates on which the respondent ‘took possession’. The respondent had taken possession of his land before the applicant. Neither was there any dispute that the trees were planted after the respondent took possession. The applicant had conceded that the trees in his back garden blocked the respondent’s city view. There was no submission that the view prior to the planting of the trees in question was an issue for the Member's consideration. Fresh evidence [43] The applicant seeks to adduce fresh evidence to support his argument. The respondent seeks to adduce fresh evidence to refute it. The Tribunal has frequently considered the issue of fresh evidence. Member Stilgoe (as she then was), with whom Senior Member O'Callaghan agreed, cited a 39 Reisner v Bratt [2004] NSWCA 22 at [4] -[6]. -- 11 of 15 -- 12 High Court decision40 when considering an application to appeal41 based on new photographic evidence: New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result. The tribunal's power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case.....The photos that it now wants to produce to the tribunal were taken in May 2009, so they must have been available.....at the original hearing.... Even if the photographs were allowed on appeal, I am not satisfied that they would produce the opposite result. [44] The three photographs on which the applicant now seeks to rely are undated, there is no indication as to the direction or aspect or from where they have been taken, or on whose land the trees shown are growing. The respondent opposes their introduction, and has provided detailed photographs and diagrams with explanation about angles and aspect and dates and location, to support his contention that the trees depicted did not block his view. On its face it is more persuasive. [45] The photographs were available at the time of the hearing, because they are purportedly from 1999. The applicant has not explained why they were not provided for the hearing. He was aware the respondent's case was that there were no trees blocking his view until 2000 or later and that he had a city view when he moved in. He also knew prior to hearing that the earliest photo relied on was 2004 because the photograph was clearly dated and was in the respondent's submissions. The Appeal Tribunal is not convinced the applicant’s new evidence would make any difference to the outcome. [46] The Appeal Tribunal is satisfied that the Member was entitled to infer that photos from 2004 would give satisfactory evidence of the view when the respondent took possession of his land in 1999 in the absence of any objection to that position, or photographs or other evidence to the contrary, given the trees the subject of the application were not planted until 2000, and later. The Appeal Tribunal finds the Member’s implicit finding that the respondent’s view when he took possession of his land was ‘panoramic and unhindered’ as it was in 2004, was capable of being supported by the evidence. The Member did not fail to establish a key element of the s 66(3)(b)(ii) of the Act. Leave to appeal on this ground is refused. Ground 3: The Member erred in finding the trees were a severe obstruction of a view from a dwelling on the respondent’s land because the view in 2013 was obstructed to the same extent as in 1999 when the respondent took possession of the land. 40 Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435. 41 Ray White Ipswich Property Management v Burns [2011] QCATA 123 (23 May 2011). -- 12 of 15 -- 13 [47] Having found against the applicant on Ground 2, it remains for the Appeal Tribunal to consider whether there was a 'severe' obstruction of a view as required by s 66(3)(b)(ii), taking into account the findings that the respondent had a view of Brisbane city at the time he took possession of his property. [48] The applicant conceded that the respondent's view had been obscured by the trees in his back garden. The Tree Report referred to ‘diminishing city views’ as a result of the trees. The Member describes the 2013 photographs as showing a view from the kitchen and dining room ‘almost entirely impeded by Mr Birnbaum's trees. There are glimpses of suburbia but none of Brisbane city’. 42 [49] In considering whether the obstruction was ‘severe’, the Member cited a decision43 of the Tribunal in which .....around 50% of the view was obstructed and this was held to be a severe obstruction. The Tribunal noted that the obstruction was in their dining area where most entertaining occurs. Similarly here, the obstruction is from Mr Akero's kitchen and dining area. The photos show the obstruction to far exceed 50%, more akin to 90%. [50] The Member concluded on the basis of the photographic evidence, the areas from which the views were lost, and the height of the trees, that the view was ‘severely obstructed’. [51] The decision cited by the Member was appealed, and Wilson J44 found an error of law in the Member's assessment of the severity of the obstruction. His Honour analysed the application of s 66(3)(b)(ii), and following a New South Wales decision, he identified a three step process45: 1) Identify and value the type of view e.g. water views, iconic views, whole views are more highly valued. 2) The part of the dwelling from where the views exist and whether it is reasonable to protect those views: views across side boundaries and sitting views are more difficult to protect than front or rear and standing views. 3) The impact of the obstruction to the views to the whole property: views from living rooms are more important than from bedrooms, although kitchen views are highly valued. [52] That case suggested that a quantitative (percentage) approach alone was not helpful, a qualitative element was necessary (as contained in the Act - ‘severe’). [53] The Appeal Tribunal has considered whether the Member’s approach has led to an error in a ‘jurisdictional fact’, and an error of law. If the three step process approved by Wilson J were applied then: 42 Transcript page 31, line 15. 43 Kokkinos & Anor v Laing & Anor [2012] QCAT 580. 44 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247. 45 Tenacity Consulting v Warringah [2004] NSWLEC 140. -- 13 of 15 -- 14 [54] Value of the view: The original view was described by the Member as a ‘panoramic’ view of Brisbane city, prior to the planting of the trees in question. It is the loss of the city view which has caused Mr Akero’s concern. The 2004 photographs show the city view surrounded by suburban views and low hills behind the city. The 2013 photographs from the Tree Report show some suburban outlook either side of the trees from the living areas, and some city views about 10 metres to the north of the dining and kitchen areas along the balcony. The trees are the dominant feature and obscure the city from the living areas. A city view is a highly prized amenity. The view in the first place was a whole view of the city and hills behind. The view can be classified as a highly valued view. [55] Was it reasonable to protect the views? The view was from the rear of the respondent's home, not a side or oblique view. There was no discussion of whether sitting or standing views were sought to be protected. The orders follow the Tree Report recommendations which were to give ‘city glimpses’ to the respondent and privacy to the applicant. This is a view that it is not unreasonable to seek to protect. [56] From where on the property were the views? The views being obstructed were from dining, living and kitchen areas, and from the main part of the balcony. Some city view remained at the end of the balcony. The areas from which the view was impeded were then the areas referred to in the test as the most important and highly valued. [57] The evidence before the Member, particularly the photographic evidence in the independent Tree Report was not ambiguous and the applicant did not contest that the view from the respondent's dwelling was significantly impeded by his trees. The new evidence the applicant sought to adduce did not go to the description of the current obstruction. [58] The Appeal Tribunal finds that the obstruction to the view now and within the succeeding twelve months can properly be called ‘severe’. [59] Wilson J observed in the appeal46 decision: In circumstances such as these where there has been an error in the way a jurisdictional fact has been assessed and where there is some merit in the Appeal Tribunal giving greater clarification in this relatively new jurisdiction, I am persuaded that leave to appeal should be granted. [60] In a 2010 appeal decision47 under s 142(3)(a)(i) of the QCAT Act he said: Leave to appeal will ordinarily only be granted where there some (sic) question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the Applicant, caused by some error? 46 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247, [49]. 47 Ash Industries Pty Ltd v Plum [2010] QCATA 53, [12]. -- 14 of 15 -- 15 [61] In this instance, the Appeal Tribunal is not satisfied that the error in the way the severity of the obstruction has been assessed has led to substantial injustice. There is not a reasonable prospect that the Applicant would achieve further relief, nor is there merit in further explication of the law by the Appeal Tribunal as Wilson J has provided that in the appeal decision relied on here. Leave to appeal is refused on Ground 3. [62] As a result, the Appeal Tribunal dismisses the appeal and refuses the application for leave to appeal. Costs [63] Section 100 of the QCAT Act provides that each party must bear their own costs. Neither party has applied for costs and the Appeal Tribunal will make no order as to costs. -- 15 of 15 --