Doolan v Brimacombe - [2024] QCAT 421

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Doolan v Brimacombe

Details

AGLC: Doolan v Brimacombe [2024] QCAT 421
Case: [2024] QCAT 421
Decision Date: 25 September 2024

CaseChat Overview and Summary

The dispute between the Doolans and Brimacombe centred on the trees on Brimacombe's land, which the Doolans claimed obstructed their view from their property, located uphill. The Doolans also expressed concern about potential damage from the trees in extreme weather conditions. The case was heard in the relevant tribunal, where the Doolans sought an order for the trimming or removal of the trees in question.

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

As I did in terms of the Raintrees, it is on the basis of these factors that I was able to readily conclude that there is no substantial, ongoing, and unreasonable interference with the use and enjoyment of the Doolans’ land caused by the Albizia trees on Mr Brimacombe’s land.Conclusion On reading and considering the material as filed by the parties in this proceeding, and in hearing the oral evidence and submissions as made during the hearing, in particular that identified and expressed by the arborist commissioned by Mr Brimacombe, I was not satisfied that the Doolans had a valid complaint in terms of the asserted loss of a view such that if shown would have resulted in the need for some remedial work to either the Raintrees or the Albizia trees. Whilst there can be no doubt their view has been impacted with the growth of at least the Raintrees over time, that loss of view must be balanced against other indicia as I have discussed it herein such that no remedial action was appropriate to be ordered. It cannot be overlooked that the evidence suggested some concerns with the Albizia trees in terms of risk and thus a recommendation from the arborist that they be removed, but this was not the subject of the Doolans’ application or the relief they sought from this Tribunal. Accordingly, given the findings I have made for the reasons I have discussed herein, the only outcome in this proceeding is that the Doolans’ application should be dismissed in its entirety. An order was made to that effect.

Ratio Decidendi

Legal Principle Established

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