Brennan v Dobbie [2013] QCAT 253

CITATION: Brennan v Dobbie [2013] QCAT 253 PARTIES: Robyn Brennan (Applicant) V Ian Dobbie (Respondent) APPLICATION NUMBER: NDR090-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 13 February 2013 HEARD AT: Brisbane DECISION OF: Julie Ford, Member DELIVERED ON: 10 May 2013 DELIVERED AT: Brisbane ORDERS MADE: The application relating to the removal of dwarf coconut palms, the golden cane palms and the bamboo in Mr Dobbie’s property is dismissed. CATCHWORDS: TREE DISPUTE – where trees obstruct view that previously existed – where trees provide shade and privacy – whether trees are causing substantial, ongoing and unreasonable interference – whether obstruction of view severe Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42, 46, 65, 66, 73, 75. APPEARANCES and REPRESENTATION (if any): APPLICANT: Present and represented by her husband Mr Brennan RESPONDENT: self represented, supported by Mrs Dobbie REASONS FOR DECISION -- 1 of 5 -- 2 [1] Mrs Brennan and Mr Dobbie are neighbours at Amity Point, a lovely part of North Stradbroke Island. Both have a view of the ocean over a grassed area (local authority land) to the beach. Both parties agree this is a popular tourist and residents’ spot, particularly during school holidays. The end of their street is a dead end. Houses obstruct both their views on the right side of the beach access. [2] Mrs Brennan and her family have used their property as a holiday home since they purchased it in 1993. They have been members of the local club and are acquainted with most of the neighbours in the street. The family have enjoyed a view of the ocean, with an observation deck built on their roof, as well as from the entertainment area on the first floor. Originally the home was single story. [3] Mr Dobbie and his wife live and work on the island. Their home, which they purchased in 2002, is now their principal place of residence. Mr Dobbie’s parents have lived on the island for over forty years. Mr Dobbie has commenced extensions to the home on the left side facing the ocean. [4] Mr Dobbie has planted palm trees on this same side to provide both shade and provide some form of aesthetic barrier between his home and the street. His property is on the corner and a lot of traffic drives down the street and turns at the end of his block. [5] The trees referred to in the application by Mrs Brennan are four Dwarf Coconut palms and she also made mention of four Golden Cane Palms and a bamboo fence line. [6] Mrs Brennan says the Dwarf Coconut Palm trees in particular cause substantial ongoing and unreasonable interference with her use and enjoyment of her land. The current height of these trees already obstructs their view from the main entertaining area of their home. As they can grow to their potential full height of 12 metres, the view of the ocean will be completely lost in her view. Legislation to consider [7] The tribunal is satisfied that the status of the applicant and the respondent meet the legislative requirements. The trees are subject to the legislation; the alleged interference is about obstruction of a view from a dwelling; the trees rise at least 2.5 metres above the ground; the view is obstructed from the applicants dining area and balcony (the only part of the house from which the ocean is visible, other than from the viewing deck.) [8] Of significance in this matter however is whether Mrs Brennan’s land is affected by the trees, to the extent that the trees are causing, or likely to cause within the next twelve months, substantial, ongoing and unreasonable interference with Mrs Brennan’s use and enjoyment of the land,(s 46 (a) (ii)(c) of the Act). -- 2 of 5 -- 3 [9] Another prong to the tribunal’s determination is that the Tribunal can make orders appropriate to remedy the interference. However it can only do so if the obstruction to the view is a severe obstruction and the view existed when Mrs Brennan took possession of her land (s66 (3) (b) (ii) of the Act). [10] When weighing the competing proposals and evidence in this matter, and in particular when considering what Orders are appropriate, the Tribunal is guided also by the provision of section 72 of the Act which says that 'a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved' . Is the tree causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with Mrs Brennan’s use and enjoyment of her land? [11] Upon inspection by Mr David Gunter, qualified Tree Assessor, he found these “trees partially obscured the applicant’s view of the ocean, and that this inconvenience will increase over time. The trees are located in close proximity to overhead LV powerlines, and are thus potential hazards going forward.” [12] However, on 15 August 2012 when Mr Gunter inspected the properties, he formed the view that “it was unlikely that the trees will increase in size sufficiently within the next twelve months to obscure the view further than is already the case, particularly as the trees are regularly lopped away form the adjacent Low Voltage powerlines”. Other trees, located upon local authority land also obscure the view of the ocean from Mrs Brennan’s balcony and dining area. [13] Mr Gunter’s report highlighted that the trees assessed are 4 dwarf coconut Palms, being of average height of approximately 4 metres. He acknowledged that the applicant had also mentioned 4 golden Cane Palms and a small bamboo hedge, with “none of these plants exceed(ing) 2 metres in height, and none of them will interfere with the applicant’s view within the next twelve months, although all certainly have the potential to do this in the future”. [14] Mr Gunter found the tree closest to the ocean had been in situ for some time (approximately 5 metres in height). The three younger palms closest to Mrs Brennan’s property could reasonably be expected to at least reach the height of the older tree. All these trees have a potential to mature to 12 metres in height. [15] Mr Gunter made no recommendations regarding jurisdiction of the tribunal or further investigations required before an order could be made. He did however weigh up four options, being particularly mindful of the deteriorating relations between the neighbours. He recommended relocating the trees approximately 2 metres towards the house in order to restore the view, reduce the risk of conflict with the powerlines and continue to provide shade for the tree-keeper. -- 3 of 5 -- 4 The competing evidence [16] When the hearing was conducted in February 2013 Mrs Brennan furnished the Tribunal with two photographs from angles taken from the dining table through onto the balcony, to demonstrate the encroaching obstruction of the Dwarf Coconut Palms. Photographs from the year her property was purchased were not furnished. The earlier photographs supplied were from the year 2000. Mrs Brennan disputed the arborist’s claim that only 10% of the view was obstructed. Her family had not utilised the property as much in the past year due to illness. However it was their long term holiday venue and family members could be there for several months over the year. [17] Neighbourhood relations have been strained since 2004 regarding a previous issue to do with the proposed erection of a structure for the car and boat by the Dobbies. Hence, neighbourly contact has been minimal. From that time, the Brennans had felt that improvements made by the Dobbies were undertaken with no consideration to the Brennans’ enjoyment of the ocean view. [18] Mr Dobbie spoke of an earlier intent to sell the property after it was originally purchased with a friend. The Dobbies subsequently brought the house outright and since relocating in 2005 see their home as their principal place of residence. They have approval to extend the house on the left side facing the ocean and have commenced the foundation work in that regard. They assert that they could not move the palms closer to the house as the sulage drains are running beside the property. [19] The Dobbies had removed trees originally planted on the boundary where the existing trees in dispute lie. Mr Dobbie provided photographic evidence in that regard. They consider they have enhanced the view of the Brennans by cutting the old trees down. Mrs Brennan’s property was originally one story in 1993. He argued that her view was achieved by Mr Dobbie’s removal of the original trees for landscaping and the construction of the extra stories by the Brennans. [20] The Dobbies had planted the trees to create shade and to reduce visual access to their property from the many cars driving up and down the road. As with the Brennans, they do not wish to have disharmony with neighbours. However, if they lose the Coconut Palms, they lose the shade and privacy for the new structure being built on that side of the home. [21] Mr Dobbie stated they were prepared to keep the four Golden Cane Palm trees cut down to a level that caused no obstruction. The arborist had also pointed out that the larger palm closer to the ocean was cut back by Energex line-clearing contractors. It was reasonable to assume that this would be the case with the remaining trees as they grew. [22] The offending bamboo along the fence line of the neighbours exists to provide some privacy to the tree-keeper. Photographs were furnished -- 4 of 5 -- 5 demonstrating a number of people chatting to the Brennans from the driveway of Mr Dobbie. [23] The tribunal attempted to find a way forward for these neighbours even in the formal hearing. Some concessions were made by both parties regarding previous issues of conflict, for example a better understanding by the Brennans of the 2004 structure issues the Dobbies had with the local council. The tribunal’s decision [24] The tribunal can only make orders if it is satisfied that the view existed when Mrs Brennan took possession of her land and there exists severe obstruction of the view now or in the next twelve months. The evidence presented by Mrs Brennan is not substantive in that regard. Indeed, the photographic evidence provided by Mr Dobbie challenged the premise relating to a clear view of the ocean from the original structure of Mrs Brennan’s home, a one story dwelling. [25] Mr Gunter, the qualified arborist, had found the offending trees do not severely obstruct Mrs Brennan’s views at present and were unlikely to do so in the next twelve months due to their growth. In an attempt to assist with the deteriorating relationship between these neighbours, he had provided some options to be considered by the parties. [26] However, the parties were not able to come to an agreement or resolve the impasse. Mr Dobbie is firm in his belief that moving the trees closer to his house, thus opening up a view for Mrs Brennan, is not viable due to the drainage system along the property. Mrs Brennan wished that the trees were not so big and have such a scope to grow to the height possible. [27] The tribunal is not satisfied that the obstruction of the view is severe nor will be in the next twelve months. Even if the tribunal were satisfied there was adequate evidence of the actual view enjoyed by the Brennans’ when they purchased the property, I cannot make an order to rectify their complaints about the trees in question, at this point in time. [28] The tribunal appreciates that this decision will not give comfort to Mrs Brennan and her family. The tribunal encourages the tree-keeper to honour the agreements made regarding controlling the growth of the golden cane palms (and the bamboo) and to address the concerns raised by the arborist about the powerlines issues and the growth of the dwarf coconut palms. Orders [29] The application relating to the removal of dwarf coconut palms, the golden cane palms and the bamboo in Mr Dobbie’s property is dismissed. -- 5 of 5 --