Nichol v Campbell

[2016] QCATA 204

CITATION:

Nichol v Campbell [2016] QCATA 204

PARTIES:

Shirley Nichol
Joseph Nichol
(Appellants)

v

Glen Raymond Campbell

(Respondent)

APPLICATION NUMBER:

APL079-16

MATTER TYPE:

Appeals

HEARING DATE:

6 December 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott
Member Gordon

DELIVERED ON:

23 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    Appeal dismissed.

2.    Leave to appeal is refused.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where Tribunal below found there is no right to a protected view under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) because there was no dwelling on the land when the applicant took possession of the land – whether correct legal construction of section 66(3)(b)(ii) of the Act

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where Tribunal below found in the alternative that there was no substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land arising from a severe obstruction of the view – whether reasonably open to make the finding on the evidence – whether leave to appeal should be granted

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the hearing was said to be unfair on various grounds – whether the applicant was afforded procedural fairness

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)

Vecchio v Papavasiliou [2015] QCAT 70 approved
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 referred to

APPEARANCES AND REPRESENTATION

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This is an appeal from a decision of a member of the Tribunal in a dispute about trees which obstructed Mr and Mrs Nichols’ view from their home in Tallai.

2. Mr and Mrs Nichol purchased the property as a vacant lot in 1992.  Shortly afterwards they built a house there and moved in.  Over the ensuing years however, the view from the house became obstructed by palm trees and bamboos growing on the land of their neighbour Mr Campbell.

3. Mr and Mrs Nichol applied to the Tribunal for an order to deal with the offending trees, but this application was dismissed by the Tribunal on 9 February 2016 after a hearing and subsequent written submissions.  They now appeal from that decision.

4. The member dismissed the application on two bases. The first basis disposed of the application entirely, but the member went on to consider the second basis in case she was wrong about the first. In order to understand these bases it is necessary to set out the relevant parts of the statutory provisions in section 66 of the Neighbourhood Disputes (Dividing…