Nichol v Campbell - [2016] QCAT 57

CITATION:

Nichol v Campbell [2016] QCAT 57

PARTIES:	Shirley Nichol Joseph Nichol (Applicants)
v
Glen Raymond Campbell (Respondent)

APPLICATION NUMBER:

NDR097-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

15 September 2015

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

9 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE RESOLUTION – TREES – loss of view – where applicant purchased vacant block – where applicant built new home – where unobstructed view - where palm trees obstructed view – where bamboo obstructed view – whether severe obstruction of the view

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48, s 49, s 65, s 66, s 72, s 73, s 75

Haindl v Daisch [2011] NSWLEC 1145
Kokkinos v Laing [2012] QCAT 580
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Vecchio v Papavasiliou [2015] QCAT 70

APPEARANCES:

APPLICANTS:

Shirley Nichol and Joseph Nichol

RESPONDENT:

Glen Campbell

REPRESENTATIVES:

APPLICANT:

Self-represented

RESPONDENT:

Self-represented

REASONS FOR DECISION

Background

Mr and Mrs Nichol are the registered owners of 136 The Panorama, Tallai. Mr Campbell is the registered owner of 144 The Panorama, Tallai. Mr and Mrs Nichol’s property is elevated so that the rear of their property overlooks Mr Campbell’s property. Mr and Mrs Nichol claim that the palm trees growing on Mr Campbell’s land are causing a severe obstruction to the previously unobstructed view they enjoyed before the growth of the trees and will continue to do so if they are not removed. They also say that the rapidly growing bamboo on Mr Campbell’s land causes some obstruction to the view and will likely cause further obstruction in the future.
There is no dispute that Mr and Mrs Nichol purchased vacant land at 136 The Panorama on or about 12 August 1992.[1] They completed the construction of their large two-storey home in 1993. Later, in 1995, a deck to the rear of the property was constructed. An addition to the original deck was completed in 2011. Approximately eight metres was added to the original deck at an elevation of about 30 to 60 cm above that of the original deck at one end. Mr and Mrs Nichol say they completed the addition in an effort to maintain their view over the roof of Mr Campbell’s property and towards the coast line with its city buildings and night lights.
[1]Certificate of Title.
Mr Campbell became the registered owner of 144 The Panorama on 18 October 2007.[2] He has resided at the property since 2004 moving out to complete renovations. He resides there with his partner and young family. While it is accepted by the parties that Mr Campbell did not plant the palm trees, there is dispute about whether they were planted before or after Mr and Mrs Nichol took possession of their land.
[2]Certificate of Title.
Mr Campbell admits that he planted the fast growing bamboo to provide privacy screening for his property after Mr and Mrs Nichol…

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 Nichol v Campbell

Details

AGLC: Nichol v Campbell [2016] QCAT 57
Case: [2016] QCAT 57
Decision Date: 9 February 2016

CaseChat Overview and Summary

The matter of Nichol v Campbell arose in the Supreme Court of Victoria. The applicant, Nichol, purchased a vacant block of land and subsequently built a new home. Nichol claimed that the view from his property was obstructed by the trees on the neighbouring property, which belonged to the respondent, Campbell. The dispute centred around whether the trees constituted a severe obstruction of Nichol's view.

The primary legal issues before the court were whether the trees planted by Campbell constituted an unreasonable interference with Nichol's use and enjoyment of his property, and if so, whether the remedy of an injunction was appropriate. The court was required to assess the severity of the obstruction and determine whether it amounted to a substantial and unreasonable interference with Nichol’s rights.

The court found that while the trees did obstruct Nichol’s view to some extent, they did not constitute a severe interference. The court held that there was no evidence presented that the obstruction was unreasonable or amounted to a significant loss of amenity. The court further reasoned that the presence of trees was a common feature in residential areas and did not inherently constitute a nuisance. Given these findings, the application for an injunction was dismissed.

The final order of the court was that the application be dismissed. The court found no grounds to compel Campbell to remove or alter the trees, thus preserving the status quo.

Orders

Orders of the court

1. The application is dismissed.

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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