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[2014] QCAT 346
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2014-07-08
Original judgment source is linked above.
Watson-Brown v Heaton & Anor [2014] QCAT 346
NEIGHBOURHOOD TREE DISPUTE - extent of works already performed by tree keepers - what is a "view" - decision that the sky is not a view in circumstances of application.
Laing & Anor v Kokkinos & Anor (No. 2) [2013] QCATA 247
King v Samios [2014] QCAT 165
Calvisi v Brisbane City Council (2008) 1 PDQR 374 at 381-382
[1] This long-standing dispute between suburban next-door neighbours relates to a number of trees located at 5 Hume Street in otherwise idyllic Golden Beach.
[2] The applicant, Mr Anthony Watson-Brown, asserts that Mr Heaton and Ms McGrane's trees create:
A severe obstruction to sunlight to the four windows in the kitchen and living area of his home, as well as the rear deck sliding doors on the north-east corner of his home; and
A severe obstruction of the view, including the sky and outlook from the rear part of his home, from the four windows located in the living area, rear veranda on the north-east corner, and rear yard of his home across the north.
[3] Mr Watson-Brown further asserts that the trees pose a risk of fence damage, as well as future obstruction of the view and outlook along the west end of the common boundary between the properties.
[4] Mr Watson-Brown brings his application pursuant to s 66(2)(b) and (3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). These sections of the Act provide that the Tribunal can make the orders it considers appropriate in relation to a tree affecting a neighbour's land, in order:
(i) serious damage to the neighbour's land or any property on the neighbour's land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land.
(3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if -
(a) the tree rises at least 2.5m above the ground; and
(i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour's land; or
(ii) severe obstruction of a view, from a dwelling on the neighbour's land, that existed when the neighbour took possession of the land.
[5] At the time when Mr Watson-Brown's application was first filed in QCAT, his neighbours (and the respondents) were then the Robinsons. The Robinsons then sold their home, together with the corresponding tree drama, to the current respondents, Mr Troy Grant Heaton and Ms Suzanne Gaye McGrane.
[6] On 17 April 2014, the application proceeded to an oral hearing in the Tribunal. Both parties gave evidence in relation to the trees in question. Additionally, the Tribunal also had the benefit of two expert reports. The first expert report, dated 18 August 2013, was prepared by QCAT tree assessor Mr Michael Sowden. This report made a number of recommendations in relation to the trees in question, suggesting the trimming and/or removal of some of the trees that were the subject of Mr Watson-Brown's complaint.
[7] Prior to on-selling the tree drama to Mr Heaton and Ms McGrane, the Robinson engaged Mr Scott Hanley, the director/principal arborist of Tree Fix, to prepare a report. The report, dated 14 December 2013, was simply attached to the back of the Respondent's materials, rather than having been attached to an affidavit from Mr Hanley. As such, it was not until the time of hearing that the Tribunal's attention was drawn to this second expert report. Because of this, the Tribunal did not, in accordance with the relevant practice direction, convene an experts conclave at which Mr Hanley and Mr Sowden could produce a joint expert report. The purpose of the practice direction, and benefit of a joint expert report is to outline the issues agreed, and issues remaining in contention, from the expert's perspective. As the experts are not involved in the proceedings, the Tribunal can often place considerable weight on the impartial evidence presented by bona fide experts.
[8] Mr Hanley was not present at the hearing scheduled on 17 April 2014, nor was he made available for cross-examination. There were genuine issues disputed between the parties as to the extent of the works undertaken between the time of Mr Sowden's earlier report, and the later report produced by Mr Hanley. The Tribunal was in the invidious position of having no reliable evidence to indicate the extent of the works already undertaken by the respondents at the time of hearing. Following discussion between the Tribunal and both parties, consent orders were made enabling the Tribunal to conduct a viewing of the trees located at 5 Hume Street, in conjunction with Mr Sowden, for the purpose of confirming which of his suggested recommendations had been acted upon.
[9] The viewing took place on 14 May 2014, resulting in Mr Sowden's compilation of a supplemental tree assessment report, in which he suggested that the following work be performed by Mr Heaton and Ms McGrane:
"Clearance pruning of the plants along the southern boundary of the pool area at 5 Hume Street, Golden Beach, Qld, 4551 to provide a minimum of 400mm clearance from the existing boundary fence structure. (G1)"
Clearance pruning has been performed along the majority of the southern boundary of the pool area at 5 Hume Street, Golden Beach, Qld, 4551 to provide 400mm clearance from the existing boundary fence structure with the exception being the single Golden Cane Palm located close to the southeast corner of the dwelling (Red arrow, Diagram 1 above). Therefore it is recommended that this Golden Cane Palm be pruned and have multiple stems removed to provide the recommended 400mm of clearance from the boundary fence structure.
"The removal of 50% of the Golden Cane Palm stems along the southern boundary of the pool area at 5 Hume Street, Golden Beach, Qld, 4551. (G1)"
"The cleaning of the remaining Palms along the plants along the southern boundary of the pool area at 5 Hume Street, Golden Beach, Qld, 4551 to remove all existing dead fronds and seed capsules. (G1)"
"The removal of two (2) clumps of Bamboo located at the eastern (large clump of Budda Bamboo) (B) and northern side (small clump of heavily pruned Bamboo) (G2) of the pool area at 5 Hume Street, Golden Beach, Qld, 4551."
The removal of the heavily pruned clump of Bamboo (G2) has been completed as recommended; and as agreed by the tree-keeper. However it appears that no removal works have been performed on the large clump of Budda Bamboo located at the eastern end of the pool area at 5 Hume Street, Golden Beach, Qld, 4551 (Blue arrow, Diagram 1 above). The removal of this large clump of Budda Bamboo still recommended, however it is highly unlikely that this will provide an increased view from or increase the available light to the applicant's property.
"The transplanting of three (3) Golden Cane Palms (G4) to replace removed Bamboo on the northern side of the tree-keeper's pool area."
One (1) of these Golden Cane Palms (G4) (Red arrow, Diagram 1 above) has been removed/transplanted as proposed. However two (2) of these Golden Cane Palms are still present in their original location and a timber decking surface has been built around them. Given the clumping growth habit of this species and their close proximity to the adjacent infrastructure means there is an extremely high potential for them to impact and damage both the boundary fence and the timber deck as growth occurs. Therefore it is recommended that these two (2) Golden Cane Palms (G4) (Red arrow, Diagram 1 above) be either removed/transplanted as recommended.
"The transplanting of two (2) small palm clumps (G1) to the opposite side of the pool area."
"That maintenance of the plants along the southern boundary of the pool area at 5 Hume Street, Golden Beach, Qld, 4551 be performed as required to maintain their canopies within the properties boundary. (G1)"
[10] In large part, Mr Heaton and Ms McGrane had already acted upon Mr Sowden's recommendations at the time of the hearing. Following the viewing, Mr Sowden suggested, and the Tribunal is prepared to order, that Mr Heaton and Ms McGrane perform the following additional works:
- Prune the golden cane palm located closest to the south-east corner of the dwelling, remove multiple stems, and provide a 400 millimetre clearance from the boundary fence structure; and
- Remove the two golden cane palms located within the timber decking surface, referenced as G4 (red arrow, diagram 1 in Mr Sowden's report).
[11] Although Mr Sowden recommends in his report that a large clump of Budda Bamboo located at the eastern end of Mr Heaton and Ms McGrane's pool area be removed, the Tribunal rejects this recommendation, for the reason that it falls outside the boundaries of the Act.
[12] The Budda Bamboo is on the side of the yard furthest from Mr Watson-Brown's property. The tree does not drop leaves onto Mr Watson-Brown's property, does not obstruct sunlight, and does not have to potential of causing structural damage to any of Mr Watson-Brown's property.
[13] Mr Watson-Brown asserts that the Budda Bamboo is objectionable, for the reason that it obstructs his "view" as contemplated by the Act. The Tribunal disagrees. Despite recommending its removal, Mr Sowden also acknowledges that that removal of the Budda Bamboo is highly unlikely to provide either an increased view from, or increase the available light to, Mr Watson-Brown's property. As such, there is no practical utility in removing it.
[14] Mr Watson-Brown argued in his submissions before the Tribunal that a "view" includes a view of the sky and surrounds. There are several matters to be considered with respect to this argument. Whilst both Mr Watson-Brown and Mr Heaton and Ms McGrane's properties are well kept, highly maintained properties that are a credit to their respective owners, they are on standard suburban blocks. As lovely as they both are, there is no ocean view, no city lights, no bushforest, or anything else of note. Rather, as is the case for most suburban dwellers, the view is of other adjoining suburban blocks.
[15] Further, whilst removal of the Budda Bamboo would not improve the view or amenity from Mr Watson-Brown's block, I consider that it would detract from the pool and surrounding appeal of Mr Heaton and Ms McGrane's property. It would leave a gaping hole in an otherwise lush surrounds, for no practical gain.
[16] The Tribunal's decision is, in this respect, consistent with other QCAT authority on this precise point. In King v Samios,[1] Member Hughes declined to order removal of a tree that allegedly interfered with sky views. The sky views were, which (as is the case here) affected from one area of the applicant's property only, and the sky could readily be viewed from other areas of the property.
[17] Member Hughes referred to His Honour Justice Wilson's judgment in Laing & Anor v Kokkinos & Anor (No. 2),[2] wherein his Honour noted that the "view" in issue was not of water, or iconic. His Honour declined to find a view of the "sky" as a reasonable basis for the application in Laing, as he found that it is well established that there is no general right to a view from one's property.[3]
[18] Applying the principles set out in Laing, the Tribunal concludes that Mr Watson-Brown's view is not one protected by the Act.
[19] With respect to the trees that still require attention by Mr Heaton and Mrs McGrane, the Tribunal orders that the respondents:
Prune the golden cane palm located closest to the south-east corner of the dwelling, remove multiple stems, and provide a 400 millimetre clearance from the boundary fence structure; and
Remove the two golden cane palms located within the timber decking surface, referenced as G4 (red arrow, diagram 1 in Mr Sowden's report).
The work Ordered in paragraphs 1 and 2 above is to be performed in accordance with the following:
All tree debris to be removed from the applicant's / tree keeper's property after the recommended pruning and maintenance is performed.
All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees".
Climbing spurs / climbing gaffs / climbing irons shall not be used during pruning works.
All works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
[2] [2013] QCATA 247 at [41].
[3] See Calvisi v Brisbane City Council (2008) 1 PDQR 374 at 381 - 382.
Watson-Brown
Heaton & Anor [2014] QCAT 346