CITATION: | Nichol v Campbell [2016] QCATA 204 |
PARTIES: | Shirley Nichol |
| 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 |
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 Vecchio v Papavasiliou [2015] QCAT 70 approved |
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
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.
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.
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.
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…
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- AGLC
- Nichol v Campbell [2016] QCATA 204
- Case
- [2016] QCATA 204
- Decision Date
CaseChat Overview and Summary
The Court of Appeal held that the Tribunal’s interpretation of section 66(3)(b)(ii) was correct, affirming that there is no statutory right to a protected view when there was no dwelling on the land at the time the applicants took possession. The Court found that the Tribunal’s findings on the lack of substantial, ongoing, and unreasonable interference with the applicants’ land use and enjoyment were reasonably open based on the evidence presented. Additionally, the Court concluded that the applicants were afforded procedural fairness during the hearing, thus dismissing claims of unfairness.
The Court dismissed the appeal and refused leave to appeal, upholding the Tribunal’s decision. This decision clarifies the scope of rights under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and reaffirms the importance of the timing of possession in determining the right to a protected view. The Court’s ruling provides guidance on the application of the Act in similar neighbour disputes concerning tree and vegetation protection.
Orders
Orders of the court
1. Appeal dismissed.
2. Leave to appeal is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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