QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Doolan & Anor v Brimacombe [2024] QCAT 421
PARTIES:
DARYL ANTHONY DOOLAN (First applicant)
KERRY ANN DOOLAN (Second applicant)
v
JOSEPH ROBERT BRIMACOMBE (Respondent)
APPLICATION NO/S:
NDR 147-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
25 September 2024
HEARING DATE:
12 July 2024
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. The Application for a Tree Dispute filed by the applicants on 17 September 2020 is dismissed.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where adjoining land is situated on a hillslope – where the uphill residents complain of trees on the downhill land blocking the view from their dwelling – where the offending trees existed on that land prior to the complaining neighbours acquiring their land - where the uphill residents complain about the prospect of damage from certain trees on the downhill land which could occur in abnormal weather conditions – whether the complaining neighbours are entitled to an order that the offending trees be trimmed or removed
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 44, s 46, s 50, s 51, s 52, s 65, s 66, s 70, s 71, s 72, s 73, s 74, s75
Calvisi v Brisbane City Council (2008) 1 PDQR 374
Jarrett v Bliss [2024] QCAT 234
Kent v Johnson (1973) 21 FLR 177
Laing v Kokkinos (No 2) [2013] QCATA 247
Mahoney v Corin [2013] QCAT 318
Van Bovene v Gay [2024] QCAT 319
William Aldred’s Case (1610) 77 ER 816
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented – appearance by Daryl Doolan
Respondent:
Self-represented – appearance by Lisa Rush assisting Mr Brimacombe
REASONS FOR DECISION
Overview
The parties are immediate neighbours in a residential area in the hillslopes to the south of Cairns. The Doolans reside on their property. They first purchased it as a house and land in 2009. Mr Brimacombe does not presently reside on his, but as I understand it in years past he did. He has owned it since 1993. He now has tenants occupying the house on it.
Mr Brimacombe’s land is downhill from the Doolans’ land. It contains substantially large Raintrees and large Albizia trees. Those trees, albeit small at the time, existed in their current position when Mr Brimacombe purchased the property. The Doolans’ complaint is that these trees have grown to a height such that they now, or soon will, block the view to the ocean, Cairns city, and mountains in the distance, all which existed when they moved into the house in 2009. They say that, because of this, the trees unreasonably interfere with their use and enjoyment of their property. They also say that despite their efforts to have engaged with Mr Brimacombe he has failed or refused to remove or trim the trees so that their view is reinstated.
The Doolans seek relief in this Tribunal by way of orders being made for Mr Brimacombe to undertake regular / annual maintenance…
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- AGLC
- Doolan v Brimacombe [2024] QCAT 421
- Case
- [2024] QCAT 421
- Decision Date
CaseChat Overview and Summary
The tribunal was required to determine whether the Doolans' complaints about the trees on Brimacombe's property constituted a substantial, ongoing, and unreasonable interference with their use and enjoyment of their land. The tribunal needed to balance the impact on the Doolans' view against other factors, such as the existence of the trees before the Doolans acquired their property, and assess whether the trees posed a significant risk of damage.
After considering the evidence and submissions, the tribunal concluded that the Doolans' complaints did not justify the need for any remedial action to be taken against the trees. The tribunal found that the Doolans' view had indeed been affected by the growth of the trees, but this was outweighed by other factors. While the arborist recommended removing the Albizia trees due to risk concerns, this was not the relief the Doolans had sought. Therefore, the tribunal dismissed the Doolans' application in its entirety.
The tribunal ordered that the application for a tree dispute filed by the Doolans on 17 September 2020 be dismissed.
Orders
Orders of the court
1. The Application for a Tree Dispute filed by the applicants on 17 September 2020 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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