Miles v Gough [2017] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION: Miles & Anor v Gough & Ors [2017] QCA 190

PARTIES: JUSTIN MILES LISA MILES (applicants) v WAYNE LEE GOUGH ROYALIE ANNE WALTERS (first respondents) CRAIG WILLIAMS AMBER WILLIAMS (second respondents) BODY CORPORATE FOR SOLARUS RESIDENTIAL CTS 41491 (third respondent)

FILE NO/S: Appeal No 10490 of 2016 / QCATA No 109 of 2015

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2016] QCATA 130 (Senior Member Brown)

DELIVERED ON: 1 September 2017

DELIVERED AT: Brisbane

HEARING DATE: 7 June 2017

JUDGES: Holmes CJ and Gotterson JA and Boddice J

ORDERS: Application for leave to appeal refused with costs.

CATCHWORDS: PROCEDURE – INFERIOR COURTS – QUEENSLAND –QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants owned a penthouse apartment in a building, one level above apartments owned by the first and second respondents – where the applicants contended that awnings erected by the first and second respondents obstructed their view and constituted an unreasonable interference with the use or enjoyment of their property, contrary to s 167(b) of the Body Corporate and Community Management Act 1997 – where an adjudicator’s decision that the awnings did not constitute an unreasonable interference was upheld by a Senior Member of the Queensland Civil and Administrative Tribunal – where the applicants sought leave to appeal the Senior Member’s decision, contending that he erred in law by rejecting their contentions of error by the adjudicator – where the applicants contended that the adjudicator had erroneously conflated the tests for nuisance and unreasonable interference – where the applicants contended that the adjudicator had wrongly undertaken a purely quantitative assessment of the impact on the applicants’ views – where the applicants contended that the adjudicator had wrongly taken into account the awnings’ conformance with local government approval – where the applicants contended that the adjudicator had wrongly taken into account the reasonableness, from the respondents’ perspective, of erecting the awnings – where the applicants contended that the adjudicator had wrongly failed to consider whether reasonable alternatives were available – where the applicants contended that the adjudicator had wrongly failed to make a finding on competing valuation evidence – whether the applicants have any reasonable prospect of demonstrating that the Senior Member erred in law by rejecting their contentions of error by the adjudicator – whether leave to appeal should be granted / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150 / Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247, considered / Norbury v Hogan [2010] QCATA 27, cited / Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25, considered / Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140, considered

COUNSEL: P Roney QC for the applicants / A Fraser for the first and second respondents / B Strangman for the third respondent

SOLICITORS: Cohen Legal for the applicants / Connolly Suthers for the first and second respondents / Stratum Legal for the third respondent

HOLMES CJ: The applicants seek leave, pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009, to appeal an order of the Queensland Civil and Administrative Tribunal (QCAT) dismissing their appeal from an adjudicator’s decision. The applicants own a penthouse apartment in a building, one level above apartments owned by the first and second respondents. The adjudicator had decided that awnings erected by those respondents, with the third respondent’s approval by resolution, did not constitute an unreasonable interference with the applicants’ use or enjoyment of their property so as to contravene s 167(b) of the Body Corporate and Community Management Act 1997.

Background

In order to protect their balconies from the elements, the first and second respondents had erected awnings, which were more or less level with the applicants’ balcony and obscured the foreground of their view, particularly in respect of a nearby creek and parkland. Before the adjudicator, the applicants complained that the structures contravened s 167(a) and s 167(b) of the Body Corporate and Community Management Act. The relevant parts of s 167, which is headed “Nuisances”, are as follows:

“The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

causes a nuisance or hazard; or

interferes unreasonably with the use or enjoyment of another lot included in the scheme …”.

The applicants claimed that the awnings both constituted a nuisance and amounted to unreasonable interference with their use and enjoyment of their apartment because they gave rise to glare and heat, were apt to gather dirt, dust and animal faeces and detracted from the visual amenity. The adjudicator rejected those claims. The application to this Court, however, concerned only a further allegation, also rejected by the adjudicator: that the structures interfered with the applicants’ view, thus interfering unreasonably with their use and enjoyment of their property, in contravention of s 167(b).

The application for leave to appeal

Under s 289 of the Body Corporate and Community Management Act, the applicants could appeal from the adjudicator’s decision to QCAT only on a question of law. Similarly, an appeal from QCAT under s 150 of the Queensland Civil and Administrative Tribunal Act may be brought to this court only on a question of law. The applicants’ proposed notice of appeal contains 14 grounds (21, allowing for sub-grounds) most of which identify nothing capable of amounting to error of law. It appears, in fact, to be largely a replication of the applicants’ notice of appeal to QCAT, which, since the functions of the adjudicator as a finder of fact and those of QCAT in considering whether there was any error of law were entirely different, possibly accounts for some of its deficiencies. However, it is possible to distil from this lamentable document, taken with counsel’s submissions, some alleged errors of law.

The applicants are contending that the Senior Member of QCAT who heard the appeal erred by rejecting their contentions of error by the adjudicator. Those contentions are, in sum, that the adjudicator erred by:conflating the tests for nuisance and unreasonable interference, resulting in the imposition of a requirement that, in order to meet s 167(b), an interference must be substantial;mis-applying an approach to assessment of interference with the applicants’ views taken from an earlier QCAT decision, Laing & Anor v Kokkinos & Anor (No 2),¹ and the decision of the Land and Environment Court of NSW in Tenacity Consulting v Warringah,² causing him to make the following errors:taking an approach which involved a purely quantitative assessment of the impact of the interference on the property’s views as a whole;taking into account the structures’ conformance with local government requirements;taking into account the reasonableness, from their perspective, of the first and second respondents’ erection of the awnings in seeking to protect the balconies from the weather;failing to consider whether the structures which previously existed on the respondents’ balconies were an adequate alternative means of providing privacy;failing to make a finding on competing valuation evidence in relation to a possible diminution in value of the applicants’ property.

Alleged error of law: conflation of tests

The applicants argued, here and in QCAT, that the adjudicator’s references, when considering the terms “nuisance” and “interferes unreasonably”, to earlier QCAT decisions, Norbury v Hogan³ and Quinn v The Body Corporate of Sanctuary Bay CTS 6523,⁴ demonstrated that he had treated the test for nuisance under s 167(a) as applicable to unreasonable interference under s 167(b).

The adjudicator adverted to passages from Norbury,⁵ in which Alan Wilson J, then President of QCAT, had occasion to consider both limbs of s 167. His Honour observed that in the absence of a definition of the term “interferes unreasonably”, it was useful to consider how the common law had construed the phrase. He noted the common law definition of nuisance as

“an unlawful and unreasonable interference with an occupier's use and enjoyment of land or of some right over, or in connection with it”

and went on to observe that what was considered unreasonable depended on the “prevailing circumstances”.

Nuisance, his Honour summarised,

“must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of … premises”.

The test under s 167 was

“objective and … to be measured against the needs and circumstances of a neighbour of ordinary sensitivity”.

In Quinn, the tribunal member, considering what amounted to nuisance under s 167(a), had noted the common law definition and gone on to say that when interference became “substantial and unreasonable” was “quintessentially a question of fact and degree”.⁶

Having considered the parties’ submissions in the light of those statements, the adjudicator concluded:

“I agree with the applicants that the ordinary meaning of "unreasonable interference" applies. Also, I agree with the [respondents] that what is considered unreasonable depends on the prevailing circumstances in each case and is an objective test. In my view, this meaning is consistent with Norbury and Quinn.”⁷

The applicants contended that this adoption of what was said in Norbury and Quinn showed that the adjudicator had applied a test of whether interference was “substantial”. This was further evidenced by his finding that the totality of the loss of view was “minor” and by the conclusion which followed:

“In conclusion, I do not consider the interference with the view from [the applicants’ lot] caused by the structures breaches section 167(b) of the Act. As stated by the committee, the applicants have failed to establish the level of interference is substantial enough to offend ordinary notions of reasonable standards for the use and enjoyment of [the applicants’ lot].”⁸

Asked what error had been made by QCAT in this respect, counsel said that it was its determination that the adjudicator had not conflated the test for private nuisance with the test for unreasonable interference. I am not convinced that that would be a determination of law, as opposed to one of fact: a finding as to what the adjudicator had done. But assuming that there was some aspect of determination of law, a review of the QCAT decision shows that the Senior Member examined the paragraphs from the adjudicator’s findings set out above. He noted that the adjudicator had made no reference to “substantial interference” in considering the second limb of s 167, except insofar as, having already found that the obstruction of view was minor, he had found that the level of interference was not “substantial enough to offend ordinary notions of reasonable standards”.

The adjudicator’s references to Norbury and Quinn must be taken in context. They appear in his decision under the heading “Meaning of ‘nuisance’ and ‘interferes unreasonably’”; in other words, as he considered both limbs of the section. And it is important to note that Norbury v Hogan was focused on the question of what constituted “unreasonable interference” for the purposes of both s 167(a) and s 167(b). The case there involved a complaint of cigarette smoke by an unusually sensitive person, raising questions of whether the correct test for unreasonable interference was an objective one; the factual question was whether cigarette smoke would interfere unreasonably with the life of a person of ordinary sensitivity. The President’s considerations were thus relevant to the adjudicator’s decision-making under both subsections. Quinn assisted to the extent of indicating that unreasonableness (like substantiality) was a question of fact and degree.

The adjudicator was assisted by both decisions in determining that “unreasonable interference” was to be given its ordinary meaning, depending in each case on the facts of the case, and was to be decided on an objective basis. There is nothing remarkable in that conclusion. Ordinary principles of construction would indicate that questions of nuisance (in s 167(a)) and unreasonable interference (in s 167(b)) should be approached consistently; that is, according to the facts and on an objective basis. And, plainly, there is an area of overlap between the compass of the subsections: nuisance would always constitute unreasonable interference. On the other hand, interference which did not rise to the level of being substantial might nonetheless be unreasonable if, for example, it had no purpose but to annoy. But nothing in what the adjudicator said indicates any confusion as to the content of the respective tests for nuisance and unreasonable interference.

The adjudicator considered the relevant question under s 167(b) to be whether “ordinary notions of reasonable standards for the use and enjoyment” of the applicants’ property were offended; in other words, an objective test. The question then was whether the interference was of sufficient consequence in the circumstances - or “substantial enough” - to meet that test. The expression of his consideration in that way does not demonstrate that the adjudicator was purporting to state any rule about whether minor view obstructions could contravene s 167 (b), as opposed to saying that the minor obstruction of the view in question did not amount to unreasonable interference. The applicants have no prospect of showing that QCAT erred in concluding that the adjudicator had not wrongly conflated the tests.

Alleged error in assessing the obstruction of the views

The adjudicator referred to a decision by Alan Wilson J in Laing & Anor v Kokkinos & Anor (No 2)⁹ in relation to whether the obstruction of a view amounted to a “substantial, ongoing and unreasonable interference” with use and enjoyment of land for the purposes of s 61 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. In that case, the President adverted to three steps of a four-step test from Tenacity Consulting Pty Ltd v Warringah Council,¹⁰ a decision of Roseth SC in the NSW Land and Environment Court.

The relevant passage from Laing was as follows:

“In determining the nature of the view that is obstructed, some assistance is also provided by using the planning principle in the earlier LEC decision of Tenacity Consulting v Warringah. In that decision, Roseth SC adopted a four step process for assessing the nature of the view with which there was interference caused by development. For the purpose of proceedings in the Tribunal’s Neighbourhood Disputes jurisdiction, only the first three tests are relevant.

The first step is to identify and value the type of views affected: water views and iconic views are valued more than views not of those things; and whole views are valued more highly than partial views.

The second step identifies the part of the dwelling the views exist in and the reasonableness of protecting views from such 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.

The third step assesses 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, except those from kitchens which are highly valued. As Roseth SC said:

The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say 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.” (Footnotes omitted.)¹¹

The Tenacity Consulting steps as summarised in Laing, it may be seen, emphasise the need to consider both the qualitative and quantitative aspects of the loss of view; that is, not only the extent to which view is lost but the nature and value of the view lost. The adjudicator said that he had taken into account the Laing and Tenacity Consulting approaches in considering whether there was a breach of s 167(b). He assessed the effect of the new awnings on the applicants’ views:

“It is apparent from submissions that the views from [their lot] include views of the Coral Sea, Magnetic Island, Ross Creek and adjacent parkland, Palmer Street, the Townsville City centre and urban areas of Townsville. There have, and there continue to be, whole views to the north, south and west of the lot of the Coral Sea, Magnetic Island, the Townsville City centre and urban areas of Townsville. There is no evidence that sea views have been affected.”¹²

The adjudicator noted that the awnings which previously existed on the first and second respondents’ balconies had partially obstructed the view to Ross Creek, the adjacent parkland and Palmer Street. Those views were now obstructed by the current structures. However, photographs showed that

“the views from the lounge (including when sitting) and dining areas continue to take in Ross Creek, the Townsville City centre and urban areas of Townsville; the view from the master bedroom includes Ross Creek out to the ocean; and the views from the northern balconies of the lot include Ross Creek, adjacent parkland, Palmer Street, the ocean and urban areas of Townsville”.¹³

The adjudicator went on to observe that the awnings were built to local government requirements before concluding:

“Therefore, applying the principles adopted in Tenacity Consulting I consider the totality of the loss of the single or whole view from [the applicants’ lot] is minor. As was found in Laing, it is this view that is relevant not just the view to Ross Creek, adjacent parkland or to Palmer Street. I do not consider the minor obstruction of the view establishes a breach of section 167(b) of the Act.”¹⁴

The applicants argued that the adjudicator had conducted only a quantitative assessment, consistently with a misconception that s 167(b) contemplated only a substantial interference with use or enjoyment of property. He thus erred by characterising the loss of view as quantitatively minor, while failing to analyse the quality of what was lost. The QCAT decision also erred, by describing the adjudicator’s approach as applying the third step in Tenacity Consulting and as involving no error.

However, there are a number of reasons for supposing that the adjudicator had regard to both the qualitative and quantitative aspects of the views lost. Firstly, he said expressly that he was taking into consideration the approach in Laing and Tenacity Consulting, which did precisely that. Secondly, he went on to consider the nature of the views affected and unaffected, noting that sea views fell into the latter category, and that whole views remained. That consideration suggests that he was concerned with more than questions of extent of loss. There would have been little point, for example, in distinguishing the sea views or the whole (as opposed to partial) views if he had not regarded them as of a particular value. Thirdly, his characterisation of the view loss as “minor” seems likely, given its appearance in the same sentence as his expressed intention to apply Tenacity Consulting, to reflect his gradation of the loss on Roseth SC’s scale for qualitative assessment (“negligible” to “devastating”), rather than to manifest a quantitative assessment, as the applicants suggest.

I should not like to be taken to endorse the application of fixed multi-step tests from other jurisdictions in these matters. However, there is nothing remarkable in the broader proposition that regard may properly be had to both the qualitative and quantitative impacts of a contentious activity or structure, in order to determine whether it does constitute an interference and, if so, whether it is unreasonable. The adjudicator properly considered both aspects. The Senior Member’s description of the adjudicator’s analysis as applying Tenacity Consulting and involving no error was correct.

Alleged error: taking into account conformance with local government requirements

The adjudicator noted that the fourth step which the Land and Environment Court had identified in Tenacity Consulting, but which the President had not regarded as relevant in Laing, was

“to assess the reasonableness of the proposal that is causing the impact”.¹⁵

In that regard, the Land and Environment Court had observed that a development which complied with planning controls would be more reasonable than one that breached them.

As can be seen from the discussion of the preceding proposed appeal ground, having set out in a series of paragraphs the details of the views lost and remaining, the adjudicator concluded a paragraph with reference to the awnings’ local authority certification. He did so in these terms :

“It is relevant that the structures are certified as being built to local government requirements.”¹⁶

That was followed by this sentence at the beginning of the next paragraph:

“Therefore, applying the principles adopted in Tenacity Consulting I consider the totality of the loss of the single or whole view from Lot 1001 is minor.”

The applicants argued that this passage demonstrated an error of law, in showing that the adjudicator regarded building approval for the awnings as a basis for concluding that the loss of view was minor. The Senior Member rejected that argument, saying that while it was not clear how the adjudicator regarded the approval as relevant, it was evident from his reasons that his finding of minor view obstruction was made on the basis of his findings about the loss of view available from the applicants’ property. In any event, the Senior Member considered, compliance with local authority requirements might be a relevant consideration in considering unreasonableness.

The adjudicator did not set out his considerations in the most structured and logical of sequences; but the Senior Member was right in saying that his conclusion as to loss of view was plainly based on his preceding discussion of that topic, not on the fact of local government approval. Unlike the Senior Member, I think it is clear, in context, that the adjudicator regarded local government approval as relevant to the issue of unreasonableness, in line with the fourth step in Tenacity Consulting. While, again, I should not be taken as advocating any such staged process of inquiry, I do not consider that the adjudicator’s consideration of the fact of approval of the awnings’ construction demonstrates error. He did not suggest that the existence of approval positively militated in favour of reasonableness, as opposed to being relevant. That seems to me correct: the fact that a structure which interfered with a neighbour’s amenities was erected without planning approval might well be an indicium of unreasonableness.

Alleged error: taking into account reasonableness from the respondents’ perspective

In the context of considering glare and heat issues, the adjudicator expressed the view that it would be reasonable for a property owner in North Queensland to wish to protect an outdoor living area from extreme weather and heat conditions. The applicants pointed to this statement to argue that as a result of his adoption of the fourth step in Tenacity Consulting, the adjudicator had wrongly taken into account the reasonableness of the respondents’ erection of the awnings.

The Senior Member said that he regarded the adjudicator’s observation of the reasonableness of covering the area as no more than a comment, not something taken into consideration. In fact, the adjudicator does seem to have borne in mind that the awnings were not put up gratuitously, at least in the context of considering their effect in creating heat and glare. That does not, in my view, indicate any error. I would have little difficulty in accepting as relevant to reasonableness whether a structure met a need; the fact that it interfered with the enjoyment of a neighbour while having no utility for its owner, would point strongly to its erection as unreasonable.

Alleged error: failing to consider reasonable alternatives

The applicants contended that if it was appropriate to take into account whether the respondents’ proposals were reasonable, it was also relevant to consider whether there were reasonable alternatives to them. In Tenacity Consulting, the Land and Environment Court had observed that it should be asked whether a more skilful design could have produced the same result in terms of development potential and amenity, while reducing the impact on neighbours’ views. It was apparent from the affidavit material put before the adjudicator that there had been less extensive awnings sheltering the balconies before the complained-of structures were installed; he should have considered whether those were adequate.

The QCAT Senior Member noted that no such point was taken before the adjudicator. It would not have been possible for him to consider the availability of alternative structures without some evidence as to whether they achieved the amenities sought by the respondents. In the absence of any evidence or arguments put to the adjudicator there was nothing for him to consider or from which to make findings. He had made no error.

The only evidence available to the adjudicator on the point appears to have been a set of “before” photographs and a reference in Mr Miles’ affidavit to the louvres which had previously formed awnings over the balconies. He describes them as “quite narrow” and as permitting some vision of the view while giving the lower apartment owners privacy. The applicants here did not identify any submission made to the adjudicator about any significance of that evidence. Had any argument been raised, the respondents might well have wanted to adduce evidence or make submissions about the practical deficiencies of the previous arrangements, which would have been relevant to reasonableness.

The adjudicator made no error in not dealing with a point not raised. The Senior Member’s analysis on this point was correct.

Alleged error: failure to make a finding on valuation

The applicants and respondents had tendered valuers’ reports concerning the impact of the awnings on the value of the applicants’ property. The adjudicator noted that he was not in a position to assess the credibility of either set of advice and did not regard the parties’ submissions about the methodology adopted by the valuers as persuasive. In particular, the applicants’ valuers, he said, had concentrated on “single elements”; by which he may have meant that the valuer focussed (as his report shows he did) on the impact of the awnings in obstructing the creek views. In any event, the adjudicator declined to prefer one valuation over the other.

The Senior Member of QCAT noted that evidence of diminution of value might be relevant in determining whether there had been unreasonable interference. The adjudicator, however, was entitled to make the finding that neither party’s argument as to the value of methodology adopted was persuasive, and it was evident that he did not accept the applicants had discharged the burden of proof on the balance of probabilities.

The applicants argued that it was an error of law not to determine the question of diminution in value. There were features of the two reports which could have led the adjudicator to prefer their valuer’s opinion. QCAT erred in failing itself to make a determination on the point and in concluding that the adjudicator had found that the applicants had not discharged the burden of proof.

But the Senior Member was clearly correct. The adjudicator was unconvinced that the applicants’ valuer had adopted a reliable methodology, and he was similarly unimpressed by the respondents’ report. He was entitled to reject both and make no finding; it simply meant, as the Senior Member observed, that he was not satisfied on the balance of probabilities that the conclusion of a diminution in value should be accepted. Neither the adjudicator’s conclusion nor QCAT’s view of it reveals any error of law. The applicants cannot succeed on this ground.

Conclusion

The applicants have not identified any ground with prospects of success on the proposed appeal. I would refuse the application for leave to appeal with costs.

GOTTERSON JA: I agree with the orders proposed by Holmes CJ and with the reasons given by her Honour.

BODDICE J: I agree with the Chief Justice’s reasons and proposed orders.

Footnotes

1. [2013] QCATA 247. ↩

2. [2004] NSWLEC 140. ↩

3. [2010] QCATA 27. ↩

4. [2013] QCATA 25. ↩

5. [2010] QCATA 27 at [13] – [18], [26] and [31]. ↩

6. [2013] QCATA 25 at [5] – [6]. ↩

7. At [35]. ↩

8. At [66]. ↩

9. [2013] QCATA 247. ↩

10. [2004] NSWLEC 140. ↩

11. [2013] QCATA 247 at [38]-[41]. ↩

12. At [61]. ↩

13. At [63]. ↩

14. At [64]. ↩

15. Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 at 29. ↩