Murray v Brimacombe - [2024] QCAT 419

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Murray & Anor v Brimacombe [2024] QCAT 419

PARTIES:

JOHN MICHAEL MURRAY

(First applicant)

PAMELA ROSE MURRAY

(Second applicant)

v

JOSEPH ROBERT BRIMACOMBE

(Respondent)

APPLICATION NO/S:

NDR 139-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

25 September 2024

HEARING DATE:

12 July 2024

Further written submissions filed 2 August 2024 and 26 August 2024

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1. The Application for a Tree Dispute filed by the applicants on 4 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 - 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 52, s 65, s 66, s 70, 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 John Murray

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 Murray’s house and land is 60 Granadilla Drive, Earlville. Mr Brimacombe’s land is 1 Moowooga Street, Earlville. Neither party resides on the lands in issue. Both properties are tenanted.
The Murrays purchased their property in 2012. They did so as an investment. At that time, and still to at least the date of the hearing, they lived in the house immediately adjoining it at 62 Granadilla Drive. Mr Brimacombe does not presently reside on his land, but as I understand it he did in years past. He has owned it since 1993.
Mr Brimacombe’s land is downhill from the Murrays’ 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 his property.
The Murrays’ complaint is that these trees have grown to a height such that they now block the view from the house on 60 Granadilla Drive to the ocean and Cairns city, which they say existed when they took possession of it, and because of this the trees unreasonably interfere with their use and enjoyment of their land. 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 the view is reinstated.

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 Murray v Brimacombe

Details

AGLC: Murray v Brimacombe [2024] QCAT 419
Case: [2024] QCAT 419
Decision Date: 25 September 2024

CaseChat Overview and Summary

The case of Murray v Brimacombe involved the Murrays, who were neighbours to the Brimacombes, and was heard in the relevant tribunal. The Murrays had filed an application concerning the trees on the Brimacombes' property, which they claimed were blocking their view from their home. The trees in question, including Raintrees and Albizia trees, were situated on the Brimacombes' downhill property, and the Murrays argued that these trees constituted a substantial and unreasonable interference with their use and enjoyment of their land. The Murrays sought an order that the trees be trimmed or removed to restore their view.

The legal issues the court needed to address included whether the Murrays' complaint was valid and whether there had been a substantial, ongoing, and unreasonable interference with their land use and enjoyment due to the trees on the Brimacombes' property. The court also had to consider the evidence provided by the arborist and balance the loss of view against other factors such as the potential risks associated with the Albizia trees. The court had to determine if the Murrays' application warranted any remedial action such as tree trimming or removal.

In its decision, the tribunal found that the Murrays' view had indeed been impacted by the growth of the trees over time, but this was balanced against other factors. The tribunal was not satisfied that the Murrays had a valid complaint that would have warranted the need for remedial work on the trees. The tribunal also noted that while the arborist had recommended the removal of the Albizia trees due to potential risks, this was not the subject of the Murrays' application or the relief they sought. Therefore, the tribunal concluded that no remedial action was appropriate, and the Murrays' application was dismissed in its entirety. An order was made to dismiss the application filed by the Murrays.

Orders

Orders of the court

1. The Application for a Tree Dispute filed by the applicants on 4 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

All that being said, 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 Murrays’ 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 made during the hearing, and in turn reading and considering the filed written closing submissions, in particular in terms of that identified and expressed by the arborist commissioned by Mr Brimacombe, I was not satisfied that the Murrays 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 Murrays’ 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 Murrays’ application should be dismissed in its entirety. An order was made to that effect.

Ratio Decidendi

Legal Principle Established

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