Body Corporate - Highlands Vista & Ors v Taylor [2018] QCAT 244

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, 100

Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247

Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Tenacity Consulting v Warringah [2004] NSWLEC 1145

Thomsen v White [2012] QCAT 2012 381

Werndly & Ors v Orchard [2014] QCAT 377

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351

[1] The Body Corporate - Highlands Vista CTS 38691 and its four lot-owners claim that four trees kept by David Taylor and Dianne Taylor on 37 Lapraik Street, Albion obstruct the view from Highlands Vista. The trees are two Weeping Lilly Pilly trees (Waterhousia floribunda) described as Trees B and C, and two Chinese Elms (Celtis sinensis) described as Trees D and E.[1]

[2] The Body Corporate and four lot-owners have applied for orders to remove or manage the trees. Before addressing the substantive issues, the Tribunal must first address several preliminary issues.

Why was the Application for strike out filed 25 June 2018 dismissed?

[3] On 9 July 2018 and after the parties filed submissions, the Tribunal dismissed Mr and Mrs Taylor's application to strike out filed 25 June 2018. On 9 July 2018, Mr Taylor requested reasons for the decision to dismiss his application to strike out.

[4] Mr and Mrs Taylor applied to strike out the application on the grounds that because they had lodged a development application to build a three-storey building that would permanently block all city views and require removing and replanting all foliage on the land, the application for a tree dispute had no reasonable prospect of succeeding.

[5] Despite filing some 12 pages of submissions to support the application to strike out, Mr and Mrs Taylor filed no evidence of the development application or its effect. They claimed to have an 'as of right entitlement' to build up to 9.5 metres, but filed no evidence of this. Indeed, it would appear from their supporting submissions that while they have applied for a material change of use, they are yet to be granted Development Approval.[2] It would also appear that the Brisbane City Council does not support the application in its current form[3] - certainly, no evidence was adduced to contradict this.

[6] The Tribunal does not accept that merely lodging a development application has changed the land from an 'area affected by a tree' to land 'primarily affected by a development application', causing the effect of any tree on the land to be a trivial consideration. Whether Development Approval is granted will depend on assessment.[4] The assessment is yet to be completed and approval is yet to be granted.

[7] Even if approval is granted, this in itself does not render any view obsolete. That would depend on other factors including obtaining all relevant approvals and permits and commencing construction. These steps can take considerable time, possibly years. The neighbours are entitled to have their application alleging interference with a view heard and determined in the meantime.

[8] The application is not otiose. It is not frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.[5] In these circumstances, the Tribunal has no basis to strike out the application for a tree dispute.

[9] For these reasons, the Application for strike out filed 25 June 2018 has been dismissed.

Should the Notice to Admit Facts be struck out?

[10] A Senior Member of the Tribunal directed that the Tribunal determine whether

Mr and Mrs Taylor's Notice to Admit Facts should be struck out as a preliminary issue at the hearing.

[11] A Notice to Admit Facts is issued pursuant to the Uniform Civil Procedure Rules. Those Rules do not apply to the Tribunal and the Notice therefore has no basis. This alone is sufficient to strike it out.

[12] Because the Uniform Civil Procedure Rules do not apply to Tribunal proceedings, the Notice is also misleading, with a preamble suggesting that a party who disputes a fact that is proved may be liable for costs, despite the contra-indicator against the awarding of costs in the Tribunal.[6]

[13] Moreover, the Tribunal has a mandate to ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice,[7] and to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[8]

[14] The delivery of a Notice to Admit Facts five pages in length with no fewer than 44 'facts' sought to be admitted (many of which were not directly relevant or unnecessary to resolve the issues in dispute,)[9] in a neighbour dispute where the Tribunal's mandate is most acute and where the parties are not legally represented, unnecessarily incurs upon the time and resources of both the parties and the Tribunal and is contrary to the Tribunal's mandate.

[15] The Notice to Admit Facts is struck out.

Are the trees likely to cause serious injury or damage?

[16] The original application included as a basis for orders, that the trees could cause severe land slippage should they be uprooted in a severe weather event.

[17] However, no evidence was offered to provide a basis for an order that the trees were 'likely to cause serious injury or damage'.[10] The Tribunal therefore does not have any basis to make a finding for an order relating to the trees on this ground.

[18] The real focus of the application was the alleged obstruction of the view.

How does the Tribunal determine an application relating to a view?

[19] The Tribunal may make orders if the trees severely obstructed the view that existed from each lot when each lot owner took possession of their land.[11] The Tribunal must undertake a three step process:[12]

• (a) The Tribunal must consider the view that existed when each of the applicants took possession of their property;
• (b) The Tribunal must determine whether the trees on the adjoining property are severely obstructing that view; and
• (c) The Tribunal must balance the interests of the parties by considering prescribed matters.[13]

What was the view when each applicant took possession of their lot?

[20] A neighbour who is a registered owner of land takes possession when clear title passes to them,[14] while a tenant has possessory and proprietary rights when they take possession of land under a lease or some other agreement entitling them to exclusive possession.[15]

[21] Mr Taylor sought to rely on a number of Google Earth photographs taken over a number of years to show the level of growth of the trees. Because they only provide a distant aerial perspective, they have little, if any, value as evidence of the views from the units at any point in time. I therefore do not accept these Google Earth photographs outweigh the closer first-person perspective photographs provided by the applicants.

[22] Carol Fayers is the owner of unit 1 on the lower level. Ms Fayers rented the unit as a tenant from October 2013, before completing her purchase of the unit on 11 August 2014.[16] No photographic evidence has been provided of the view from her unit as at October 2013 or August 2014. Without this evidence, I am not satisfied that any obstruction of that view can be established. Ms Fayers' application must be dismissed.

[23] Daniel Nel is the owner of unit 2 on the lower level. He completed his purchase of the unit on 13 January 2009. Photographs from 2009 show that at around the time of purchasing his property, Mr Nel enjoyed a sweeping view of the city skyline from his patio.[17] However, the view of the immediate land below was mainly obscured by the foliage canopy of Trees C, D and E.

[24] Patricia Ryan and Michael Ryan are the owners of unit 3 on the upper level. They completed their purchase of the unit on 2 February 2009.[18] Photographs from 2009 show that at around the time of purchasing their property, Mrs and Mr Ryan enjoyed a panoramic view of the city skyline including most of the land below, from their patio.[19] The view was obscured to a minor degree by Tree E, but was otherwise essentially unimpeded.

[25] John Cork is the owner of unit 4 on the upper level. He completed his purchase of the unit on 17 September 2009.[20] A photograph from around that time shows that Mr Cork enjoyed a view of the immediate land below and in front and some partial views of the horizon and skyline from his patio.[21] Although Mr Cork did not take the photograph himself, he gave sworn evidence that it is an accurate depiction of his view at the time of purchase. His view was essentially unbroken by any of the trees.

Do Mr and Mrs Taylor's trees severely obstruct each view?

[26] The Tribunal must undertake a three step process to determine whether the trees severely obstruct the view:

• (a) The Tribunal must identify and value the type of views affected: water views and iconic views are valued more than other views, while whole views are valued more than partial views;[22]
• (b) The Tribunal must identify the part of the dwelling from where the views exist and the reasonableness of protecting views from these areas: views across side boundaries are more difficult to protect than front and rear boundaries; sitting views are more difficult to protect than standing views;[23] and
• (c) The Tribunal must assess the impact of the interference to the views of the whole property, not just for the view that is affected: views from living areas are more significant than from bedrooms or service areas.[24]

[27] The view from the upper unit 3 is the most superior, approximating 180 degrees. The lower unit 2 has a similar aspect, although about one-sixth of the skyline is obscured by Tree E and a substantial portion of the land below obscured by Trees C and D. Because of its different aspect, unit 4's view would approximate 90 degrees, and mainly comprises the land below.

[28] Although the views vary in quality, because all take in the Brisbane skyline to varying degrees, I am satisfied the view from the three patios would be an attractive feature of the property and a clear selling point. City skyline views are highly valued.[25]

[29] The relevant view is from the rear patio of each unit.

What extent of the view is obstructed by the trees?

[30] Considering the totality of the view from the patio of upper unit 3, I am satisfied that Trees C, D and E do severely obstruct the view. A photograph from November 2016 shows Trees C and E obscuring around one-third to one-half of the previous view of the city skyline.[26] Tree D almost completely obscures the previous view of the foreground and is beginning to impede the view of the bottom of the skyline.

[31] Considering the totality of the view from the patio of lower unit 2, I am satisfied that Trees C, D and E do severely obstruct the view. A photograph from November 2016 shows Trees C, D and E almost completely obscuring the previous view.[27]

[32] Considering the totality of the view from the patio of upper unit 4, I am satisfied that Trees B and C do severely obstruct the view. Photographs from October 2017 show Tree B bringing in the view of the land below and in front and impeding the view of the skyline where it was previously unimpeded.[28] The photographs also show Tree C has obscured the view of the immediate foreground.[29] A photograph dated 7 January 2018 shows Trees B and C still blocking the view of the immediate foreground. I am not satisfied that the photographs show evidence of Trees D and E obscuring any previous views from upper unit 4.

[33] I am satisfied that:

• (a) Trees C, D and E severely obstruct the view from unit 3;
• (b) Trees C, D and E severely obstruct the view from unit 2; and
• (c) Trees B and C severely obstruct the view from unit 4.

Is it necessary to make an order to remedy, restrain or prevent a substantial, ongoing and unreasonable interference as a result of the severe obstruction of a view?

[34] The Tribunal can only make orders for trees causing an obstruction of a neighbour's view in the most severe cases.[30] The interference with the views from each of the neighbour's identified positions must be substantial, ongoing and unreasonable in the sense of being considerable and beyond the limits of acceptability:[31]

The words "substantial", "ongoing" and "unreasonable" are not defined in [the Act] and therefore carry their ordinary meaning. Substantial means "of considerable importance, size, or worth." Ongoing means "continuing; still in progress". Unreasonable means "beyond the limits of acceptability or fairness". Interference, in order to satisfy s 66(2)(b)(ii), must therefore be considerable and beyond the limits of acceptability.[32]

[35] Because of Trees C, D and E the previous iconic sweeping views of the Brisbane skyline are almost gone from the patio of unit 2 and considerably diminished from the patio unit 3.

[36] Because of Trees B and C the previous view of the below land in the foreground is almost completely gone from the patio of unit 4, while the previous partial view of the Brisbane skyline is also considerably diminished.

[37] Given the iconic nature of the views, I consider it reasonable for Mr Nel, Mrs and Mr Ryan and Mr Cork to take steps to preserve the view from each of their respective areas.[33]

[38] Apart from some limited tree maintenance in November 2017, Mr and Mrs Taylor have taken minimal steps to minimise the interference.

[39] The views were also a marketing signature for each unit:

The design of the complex also sought to maximise the views on offer with larger than normal patios and living areas that all face south towards the city and allow a full appreciation of the view on offer. The views were used as a selling feature when the properties were marketed.[34]

[40] Because of the above factors, I am satisfied that:

• (a) The interference by Trees C, D and E with the views from the patios of units 2 and 3 is sufficient to constitute a substantial, ongoing and unreasonable interference; and

• (b) The interference by Trees B and C with the view from the patio of unit 4 is sufficient to constitute a substantial, ongoing and unreasonable interference.

[41] The interference with the views is beyond the limits of acceptability and when considered objectively, a significant, ongoing and unreasonable interference with the use and enjoyment of units 2, 3 and 4. I have determined this is a jurisdictional fact, thereby enlivening the Tribunal's jurisdiction to make appropriate orders.[35]

What prescribed matters are relevant for the Tribunal to consider in making appropriate orders?

[42] Because I have found that each of these trees is causing substantial, ongoing and unreasonable interference with use and enjoyment of units 2, 3 and 4 I may make orders to remedy, restrain or prevent the interference.[36] It is not disputed that the trees rise at least 2.5 metres above the ground.[37]

[43] When considering orders that are appropriate, the Tribunal is guided by the requirement that 'a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved'.[38]

[44] I consider the issue of the trees obscuring the views from units 2, 3 and 4 can be 'otherwise satisfactorily resolved' without removing or destroying the trees, by implementing the management plan for each tree identified in the Joint Expert Arboricultural report of Benjamin Inman and Jason-jay Fletcher dated 5 July 2018.

[45] Although Mr Taylor submitted that the trees act as a noise barrier,[39] no evidence was adduced of the extent to which the joint arborist management plan would impinge upon this. There is also no independent evidence of the trees having any historical, cultural, social or scientific value.[40]

[46] I note that Trees D and E and the surrounding Bamboo contribute to soil stability.[41] The proposed works do not entail removing any roots and will therefore not increase runoff or cause land slippage. Maintaining the trees as recommended in the joint arborist report will not adversely affect the trees,[42] slope stability,[43] or landscape amenity,[44] although Mr and Mrs Taylor may experience a modest reduction in privacy.[45] This reduction is privacy will be reflected in determining who should pay.

[47] Although the trees predate the lot-owners acquiring their units,[46] I am not satisfied that this is sufficient to displace an order requiring their management. However, as I explain below, I do consider it relevant in determining who should pay.

[48] I am therefore satisfied that implementing the joint arborist management plan will achieve an appropriate balance between each view and Mr Taylor's amenity.[47]

[49] Unfortunately, no accurate evidence was presented of the height of Trees D and E. However, because Trees D and E are deciduous and would not have grown since the joint arborist report, I am satisfied to order that they be reduced by one metre as recommended and they are then to be maintained to that height.

How does the Tribunal determine who pays the costs of the works?

[50] The Tribunal may require the tree-keeper or neighbour to pay the costs associated with carrying out an order to carry out work on a tree.[48] The Tribunal therefore has a discretion in determining who should pay the costs of the initial works and subsequent works.[49]

[51] Because Mr Fayers was unable to prove the view when she took possession, the Tribunal is unable to make a finding that 'a tree is affecting (her land)'.[50] The jurisdictional basis to make an order for Ms Fayers to contribute to the costs of the works has not been established.

[52] A tree-keeper is responsible for the proper care and maintenance of the tree-keeper's trees.[51] However, all of the trees predate the neighbours acquiring their units.[52] The existence of the trees prior to the neighbours acquiring their units is relevant in determining who should pay for the work.[53] It is relevant because there is no common law right to a view and the neighbours should have appreciated the risk of the trees' potential impact on their views when buying. Mr and Mrs Taylor should not bear all the burden of their neighbours' failure to appreciate the risk.[54]

[53] The works will mainly address the neighbours' concerns about their views, with little benefit accruing to Mr and Mrs Taylor. Mr and Mrs Taylor will have their overall amenity reduced, while the lot owners will have their views restored. If the neighbours want to restore a view to which they are not entitled at common law, it is appropriate that they should contribute towards the cost of the initial works. However, because Mr and Mrs Taylor allowed their trees to grow to an extent that they are a substantial, ongoing and unreasonable interference, it is appropriate that they also contribute towards the costs of the initial works.

[54] The neighbours will derive an ongoing benefit from the works over and above Mr and Mrs Taylor's obligations as a tree-keeper to properly care and maintain the trees. It would not be just or equitable to require Mr and Mrs Taylor to pay all the costs of the ongoing maintenance that mainly benefits their neighbours. Equally, it would not be just or equitable to require their neighbours to pay all the costs to maintain trees not on their property and for which Mr and Mrs Taylor as the tree-keeper are required to maintain.

[55] It is therefore appropriate that each neighbour (apart from Ms Fayers whose application has been dismissed) jointly pay to Mr and Mrs Taylor one half the costs of the initial works and maintenance works for the trees affecting their respective lots.

[56] This means that the contribution to maintenance costs will be:

• (a) Tree B - Mr and Mrs Taylor together to pay one-half and Mr Cork to pay one-half;
• (b) Tree C - Mr and Mrs Taylor together to pay one-half, Mr Nel to pay one-sixth, Mr and Mrs Ryan together to pay one-sixth and Mr Cork to pay one-sixth; and
• (c) Trees D and E - Mr and Mrs Taylor together to pay one-half, Mr Nel to pay one quarter and Mrs and Mr Ryan together to pay one-quarter.

[57] For these reasons, the Tribunal orders that:

1. The Notice to Admit Facts is struck out.
2. Carol Eve Fayers' application is dismissed.
3. David Anthony Taylor and Dianne Barbara Taylor, the registered owners of 37 Lapraik Street, Albion, Queensland, 4010 ('the Tree-Keeper') will arrange to have the following works carried out on the trees the subject of the dispute ('the Initial Works') within 30 days:
   • (a) Canopy reduction pruning to 5.0 metres in height of the two Weeping Lilly Pilly trees (Waterhousia floribunda) described as Trees "B" and "C";
   • (b) Canopy reduction pruning of 1.0 metres of the two Chinese Elm trees (Celtis sinensis) described as Trees 'D' and 'E' and surrounding Bamboo and removal of the vine growing over Tree 'E'.
4. The Tree-Keeper will perform maintenance pruning at intervals not exceeding eight months to maintain the canopy of the trees and Bamboo at their height and spread after the Initial Works ('the Maintenance Works').
5. The Tree-Keeper will remove all tree debris from the properties after the recommended pruning is performed.
6. The Initial Works and the Maintenance Works must be completed:
   • (a) In accordance with all applicable Australian Standards for pruning of amenity trees; and
   • (b) By an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture.
7. The costs of the Initial Works and the Maintenance Works are to be paid as and when they fall due as follows:
   • (a) Tree 'B' - Tree-Keeper to pay one-half and John Jeffrey Cork to pay one-half;
   • (b) Tree 'C' - Tree-Keeper to pay one-half, Daniel Van Heerden Nel to pay one-sixth, Patricia Sandra Ryan and Michael Wayne Ryan together to pay one-sixth and John Jeffrey Cork to pay one-sixth; and
   • (c) Trees 'D' and 'E' - Tree-Keeper to pay one-half, Daniel Van Heerden Nel to pay one-quarter and Michael Wayne Ryan and Patricia Sandra Ryan together to pay one-quarter.

[1] The descriptors of the trees used in the Joint Arboricultural Expert Report, dated 5 July 2018.

[2] Unlike Werndly & Ors v Orchard [2014] QCAT 377.

[3] Letter Brisbane City Council to David and Diane Taylor, dated 18 January 2018.

[4] Application for Determination of a Preliminary Issue filed 25 June 2018, paragraph 21.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1).

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100; Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29].

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).

[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

[9] See for example, paragraph 23 seeking an admission of a dictionary definition of 'vista' and paragraphs 29 and 30 seeking admissions about the Property Occupations Act 2014 and REIQ Standards of Business Practice.

[10] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 74.

[11] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(3)(b)(ii).

[12] Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247, [34].

[13] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 72, s 73, s 75.

[14] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 388-9.

[15] Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, [41].

[16] Witness Statement of Carol Fayers, dated 7 January 2018, paragraph 2.

[17] Statement of Daniel Nel, dated 9 October 2017, Attachment F, photograph 2.1.

[18] Witness Statement of Patricia Ryan, dated 8 January 2018, paragraph 2.

[19] Statement of Vito Giorgio, dated 6 October 2017, Attachment F; Statement of Daniel Nel, dated 9 October 2017, Attachment F, photograph 3.1.

[20] Witness Statement of John Jeffrey Cork, dated 8 January 2018, paragraph 2.

[21] Witness Statement of John Jeffrey Cork, dated 5 October 2017, Picture 1.5.a.

[22] Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247, [39].

[23] Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247, [40].

[24] Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247, [41].

[25] Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, [74].

[26] Statement of Vito Giorgio, dated 6 October 2017, Attachment F.

[27] Statement of Vito Giorgio, dated 6 October 2017, Attachment F.

[28] Statement of Vito Giorgio, dated 6 October 2017, Attachment F.

[29] Statement of Vito Giorgio, dated 6 October 2017, Attachment F.

[30] Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, [90].

[31] Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, [90].

[32] Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203, [81] (citations omitted).

[33] Tenacity Consulting v Warringah [2004] NSWLEC 1145, [26]-[28].

[34] Statement of Vito Giorgio, dated 6 October 2017.

[35] Laing & Anor v Kokkinos (No. 2) [2013] QCATA 247, [35].

[36] Section 66(2)(b)(i) of the Act.

[37] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(3)(a).

[38] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 72.

[39] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(g).

[40] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(c).

[41] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(h).

[42] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(j).

[43] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(h).

[44] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(e).

[45] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(g).

[46] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 75(d).

[47] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(1)(g).

[48] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(5)(e).

[49] Thomsen v White [2013] QCATA 37, [23]-[24].

[50] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(2).

[51] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41.

[52] Statement of Evidence for the Respondent, dated 21 February 2018, paragraph 6.

[53] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(5)(e), s 75(d).

[54] Thomsen v White [2012] QCAT 381, [25].