Doolan & Anor 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: 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 -- 1 of 16 -- 2 APPEARANCES & REPRESENTATION: Applicants: Self-represented – appearance by Daryl Doolan Respondent: Self-represented – appearance by Lisa Rush assisting Mr Brimacombe REASONS FOR DECISION Overview [1] 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. [2] 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. [3] The Doolans seek relief in this Tribunal by way of orders being made for Mr Brimacombe to undertake regular / annual maintenance work, including removing and/or cutting back the trees at his cost. [4] Despite it not being an issue raised in their application as originally made, during the course of the hearing an issue was raised by Mr Doolan during cross-examination of him as to concerns he held for potential damage to his property as a result of the failure of the trees during an adverse weather event, more particularly a cyclone. However, despite that assertion, the Doolans did not seek an order for removal of the trees as part of their application, nor did Mr Doolan seek to amend the application during the hearing as a result of that stated concern. [5] For the reasons given herein, the Doolans have failed in their efforts to have this Tribunal make give the orders they seek. Their evidence did not support a conclusion that the trees in question constitute a severe obstruction in the manner contemplated by s 66(3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). Accordingly, their application was dismissed. Relevant Facts and Circumstances [6] In 1993 Mr Brimacombe purchased his land at 1 Moowooga Street, Earlville. It had Raintrees and Albizia trees planted on it. His recollection is that at that time they were relatively small trees. -- 2 of 16 -- 3 [7] In 2009 the Doolans purchased the house and land on which they now live at 56 Granadilla Drive, Earlville. It is uphill from Mr Brimacombe’s land. It is said that, at that time, from the rear of the house they had uninterrupted views across Mr Brimacombe’s property, out to the ocean, and of the city of Cairns and surrounding mountains. [8] The Doolans complain that the Raintrees and the Albizia trees have now grown to a height that is impacting on this view and will continue to do so such that it is unreasonably interfering with their use and enjoyment of their property. [9] In September 2020, the Doolans commenced this proceeding seeking orders that Mr Brimacombe be required to carry out requisite works to the trees so as their views are reinstated. Within their application to this Tribunal they asserted only that there was an interruption to the views.1 They expressly stated that the issue of injury to persons or damage to property was ‘not applicable’ in terms of the trees. [10] In January 2021, Mr Brimacombe responded to the Doolans’ application.2 Therein he acknowledged that the Doolans’ house existed at the time of their purchase of 56 Granadilla Drive. However he says that, since then the Doolans have constructed an extension to the rear of their house and as such the asserted lost views are the views that would have existed had that extension been there when they purchased the house but otherwise were not views that existed at the time they acquired the house in the absence of the extension. He thus says that it is not view ‘from a dwelling … that existed when [the Doolans] took possession of the land’, such being a requirement of s 66(3)(b)(ii) of the ND Act. [11] It is against this background that this proceeding came before me for determination. The Issue [12] It is not in issue that the Raintrees and the Albizia trees are both a ‘tree’ for the purposes of the Act, and that there is more than one of each species. It is common ground that the parties are neighbours, that their properties adjoin each other, that the trees are on Mr Brimacombe’s land, and that he is the tree-keeper and so is responsible for the proper care and maintenance of the trees, all being terms used in the ND Act. As such no issues arise for determination in regard thereto. [13] There is not an issue with overhanging branches from the trees. Nor is there an issue raised on the application in terms of damage to the Doolans’ land or any property on the land, or injury to any person, nor even an allegation that the trees are likely to cause any such damage or injury. However, notwithstanding the absence of same, during the hearing when asked under cross-examination as to whether there was any risk of damage being caused by the trees, Mr Doolan said yes explaining that answer in terms of his concern that the trees might snap trees during a cyclone and in turn debris from the trees could be blown on to his property and his house. Yet, even though the Doolans did not raise this in their application, Mr Doolan did not seek leave during the hearing to amend his application to include this issue. 1 Marked for Identification ‘A’ in the hearing. 2 Marked for Identification ‘B’ in the hearing. -- 3 of 16 -- 4 [14] Finally, there is no dispute that the Doolans have correctly brought their complaint to this Tribunal, nor that this Tribunal has jurisdiction to deal with the Doolans’ complaint. [15] The sole issues in this proceeding are whether the Doolans’ land is affected by the Raintrees and/or the Albizia trees to the extent provided for by s 46(a)(ii) of the ND Act, and if so then what is the work that must be done to remedy it. However given that which Mr Doolan raised in the hearing as to his concern in terms of potential damage, it is also an issue that I have addressed in these reasons. Relevant Law [16] These issue fall to be decided under the provisions found in the ND Act, more particularly ‘Chapter 3 – Trees’ therein. For ease of reference, extracted here are the relevant provisions of that Act: Part 1 Introduction 44 Action may be taken in relation to more than 1 tree (1) To remove any doubt, it is declared that, if this chapter provides for doing a thing in relation to a tree, the thing may be done in relation to 2 or more trees. (2) … Part 2 Interpretation 46 When is land affected by a tree Land is affected by a tree at a particular time if— (a) any of the following applies— (i) …; (ii) the tree has caused, is causing, or is likely within the next 12 months to cause— (A) serious injury to a person on the land; or (B) serious damage to the land or any property on the land; or (C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and 50 Meaning of work Work, on a tree, includes— (a) cutting and removing any part of the tree (including its branches or roots); and (b) …; and (c) destroying the tree. 51 Meaning of destroy Destroy, for a tree, means destroy in any way, including uproot, ringbark or cut down the tree, and includes remove the tree and its stump. -- 4 of 16 -- 5 Part 3 Responsibilities, liabilities and rights 52 Responsibilities of a tree-keeper (1) …. (2) A tree-keeper is responsible for ensuring that the tree does not cause— (a) serious injury to a person; or (b) serious damage to a person’s land or any property on a person’s land; or (c) substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land. (3) …. Part 5 QCAT orders to resolve other issues about trees 65 Requirements before order may be made QCAT may make an order under section 66 if it is satisfied of the following matters— (a) the neighbour has made a reasonable effort to reach agreement with the tree-keeper; (b) …; (c) …; (d) … 66 Orders QCAT may make (1) …. (2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land— (a) to prevent serious injury to any person; or (b) to remedy, restrain or prevent— (i) serious damage to the neighbour’s land or any property on the neighbour’s land; or (ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. (3) However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight of a view only if – (a) the tree rises at least 2.5 m above the ground; and (b) the obstruction is – (i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land. -- 5 of 16 -- 6 … Division 4 Matters for QCAT consideration 70 Application of div 4 (1) This division states matters for QCAT to consider in deciding an application for an order under section 66. (2) This division does not limit the matters QCAT may consider. 71 Safety The primary consideration is the safety of any person. 72 Removal or destruction of living tree to be avoided A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. 73 General matters to consider (1) QCAT must consider the following matters— (a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree; (b) whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained; (c) whether the tree has any historical, cultural, social or scientific value; (d) any contribution the tree makes to the local ecosystem and to biodiversity; (e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality; (f) any contribution the tree makes to public amenity; (g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke; (h) any impact the tree has on soil stability, the water table or other natural features of the land or locality; (i) any risks associated with the tree in the event of a cyclone or other extreme weather event; (j) the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape; (k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law. … -- 6 of 16 -- 7 74 Other matters to consider if serious injury or damage alleged (1) If the neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, QCAT may consider – (a) … (b) any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage. (2) In making an order under section 66 to carry out the work that involves destroying a tree, QCAT may consider – (a) … (b) any steps that have been taken by the tree-keeper or the neighbour to prevent further injury or damage; and (c) … (d) any other matter QCAT considers relevant. 75 Other matters to consider if unreasonable interference alleged If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider— … (d) whether the tree existed before the neighbour acquired the land; and … Discussion on the Evidence and Submissions before the Tribunal, and the Contest between the Parties [17] Firstly, as a threshold issue, I am satisfied that the requirement of s 65(a) of the ND Act has been met. In his statement tendered in the hearing Mr Doolan describes the efforts the Doolans had taken to reach an agreement with Mr Brimacombe.3 Mr Brimacombe provides similarly testimony.4 [18] Much of this involved another neighbour and adjoining land owner who makes a similar complaint to that made by the Doolans, namely a Mr and Mrs Murray who own other properties on Granadilla Drive, living in one of them. It is apparent on my reading of the statements in this proceeding that Mr Murray was involved in much of the discussion involving Mr Doolan and Mr Brimacombe. The Murrays have also commenced a proceeding in this Tribunal seeking similar orders to those sought by the Doolans concerning the trees on Mr Brimacombe’s land. That is case number NDR 139-20. That proceeding and this proceeding ran together. I heard both proceedings the same day, the Doolans’ case first, the Murrays’ case second. My decision and reasons in that matter, wherein I made similar observations to much of that which I 3 Ex 1 para’s 13 to 15, 17 and 18. 4 Ex 4 para’s 5 and 6. -- 7 of 16 -- 8 have said herein, were issued contemporaneously with my decision and reasons in this matter. [19] Mr Doolan uses the language of Mr Brimacombe purportedly ‘rejecting’ or ‘refusing’ certain things, and Mr Brimacombe uses the language ‘unreasonable position’ in reference to the Murrays and the Doolans. But I read and understood those as being words adopted with a degree of emotion behind them. I need not have made any finding, and so do not express any opinion, as to whether the position adopted by Mr Brimacombe was reasonable or unreasonable. My only concern was the efforts made by the Doolans. In that regard the descriptions to which I have just referred are not indicative of a failure by the Doolans to have engaged in a ‘reasonable effort’ as is required under s 65(a) of the Act. [20] That being so, I turn to the Doolans’ complaints. [21] As I noted it earlier, the Doolans’ complaint initially was only that of the asserted obstructed view resulting in the loss of enjoyment of their land, such being the subject of their application to this Tribunal. But in the hearing the asserted potential risk of damage to their house caused by one or more of the trees failing in adverse weather conditions was raised. [22] I deal with each of these in turn. Obstruction of a view [23] In addressing this issue there are two aspects to it that are necessary to take note of. [24] Firstly, there is a legal premise established by the common law that must not be overlooked, but which to, some degree, has been ameliorated by the ND Act. It is that there is no general right at law to a view. Such has been the common law position since 1610 in England,5 such which has been adopted in Australia,6 and in turn the position taken by this Tribunal over many years when considering tree disputes. [25] As Justice Alan Wilson, the then President of this Tribunal, observed in 2013 in Laing v Kokkinos (No 2): 7 Section 66 of the Act provides that an applicant may seek an order of the Tribunal to remedy, restrain or prevent the severe obstruction of a view from a dwelling on the land if the obstacle occurs as a consequence of trees on adjoining land. That section does not create a right to a view, the remedy referred to is a statutory one which is discretionary, and will not be exercised if it is not appropriate in the circumstances. [26] Very recently, in determining a tree dispute, this Tribunal had cause to address the issue of the loss of a view caused by trees and the application of that law. That was in Jarrett v Bliss. I respectfully adopt the following short passage from the learned Member’s reasons therein. It succinctly expresses the state of the law, and the caselaw from which it is sourced, as it relates to the issues for determination by me:8 5 William Aldred’s Case (1610) 77 ER 816, 821. 6 See Kent v Johnson (1973) 21 FLR 177, 212. See also Calvisi v Brisbane City Council (2008) 1 PDQR 374, 381-382. 7 Laing v Kokkinos (No 2) [2013] QCATA 247, [32]. 8 Jarrett v Bliss [2024] QCAT 234,[8] and [9]. Footnotes omitted. -- 8 of 16 -- 9 There is no general right to a view from a person’s land and the Act does not create one. However, subsection 66(2)(b)(ii) of the Act enables the Tribunal to make orders on the basis of an obstruction of a view only if the tree rises at least 2.5 metres above the ground and the Applicants can establish the trees on the Respondents’ land have caused a severe obstruction of a view, from a dwelling on the Applicants’ land, that existed when the Applicants took possession of the land. This applies even if the Applicants took possession of the land before the commencement of the Act. The Appeal Tribunal has identified a three-step process when determining whether or not there is a severe obstruction of a view. First, the Tribunal must determine what the Applicants’ view was from their dwelling at the time they took possession of their land. Second, the Tribunal must determine whether the trees are causing, or within the next 12 months will cause, a severe obstruction of that view and, if so, the Tribunal must balance the interests of the parties considering the matters listed in sections 73 and 75 of the Act. [27] Thus, turning to that three step process, the following observations could readily be made from the documentary material the parties put before this Tribunal. [28] As to the first step, whilst there was an absence of clarity in the Doolans’ evidence as to the extent of the view at the time took possession of the dwelling as it was then on their land, the argument to the contrary raised by Mr Brimacombe in terms of the extension subsequently constructed by the Doolans and from which it is asserted is where the view in question arises, was in my opinion vague and uncertain such that it was insufficient to dispel the position being pressed by the Doolans. However, for the reasons I give shortly here in terms of the second and third steps, given the decision I reached on those steps I did not need to, and so did not, make a definitive finding about that point. I proceeded on the assumption that the relevant view did exist at the time the Doolans took possession of their dwelling. [29] As to the second step, the Doolans’ evidence before me does not support their assertion as to a loss of a view. Under cross-examination, Mr Doolan himself put the asserted loss of view at around 50%. I also particularly note the photos forming part of his statement, it being Exhibit 2 in the proceeding. Whilst there is no question they show a large tree visible from the back of the house in the horizontal line of sight, they also show what appears to be to be large substantive areas of view to the ocean and mountains beyond. This seems to be to be consistent with the 50% to which Mr Doolan referred. Whilst I could readily accept that to some degree their view is interrupted by trees, their evidence does not show me that it could in any way be said to be a ‘severe’ obstruction. [30] As I discuss the issue later in these reasons as to the question of the trees being in existence prior to the Doolans purchasing their house and land, I refer to and extract at paragraph [42] herein part of the parliamentary debate following the second reading of the Bill that ultimately became the ND Act. As can be noted in reading the comments by the Minister therein, the severity threshold requires that the view must be nearly blocked out.9 Such was noted in this Tribunal as far back as 2013 by the then President Justice Alan Wilson in Mahoney v Corin.10 9 Qld, Parliamentary Debates, Legislative Assembly, 2 Aug 2011, pg 2309 per the Honourable PT Lucas,https://documents.parliament.qld.gov.au/events/han/2011/2011_08_02_WEEKLY.PDF (accessed 25 Sep 2024). 10 Mahoney v Corin [2013] QCAT 318,[10]. -- 9 of 16 -- 10 [31] However even if I was wrong about that, the third aspect swings the pendulum against the Doolans. That is the balancing exercise in terms of the interests of the parties considering the matters listed in sections 73 and 75 of the ND Act. For the reasons I discuss in the paragraphs that follow here, in my opinion the issue turns on the provisions of s 73(1)(d), (e), (g), and (j), and in particular s 75(d). [32] In terms of the provisions of s 73, I note the following observations Mr Brimacombe makes in his statement tendered as his evidence in chief, it not being challenged in any way by the Doolans under cross-examination, or by them having presented any evidence establishing a contrary position:11 … The trees in question provide shade cover and therefore a natural temperature control to the land are home to an ecosystem that has developed over in excess of 30 years which includes wildlife including native birds which I have observed regularly roosting in the trees whose habitat would be disturbed a (sic) the least and more likely lost of the trees were trimmed … My loss of amenity were the Orders to be made as sought by the Applicants would also include a loss of privacy that the tree canopy provides to my property … [33] I also note the following observations reported by Mr Madderom, an arborist commissioned by Mr Brimacombe, in his report which was annexed to Mr Brimacombe's statement:12 The three Raintrees range from approximately 1 meter – 1.5 meters in diameter (DBH) and 16 metres – 20 metres in height. These trees are typical in form and structure for the species. Fortunately, they have developed to maturity without radical pruning, thus they have a typical well developed canopy structure, providing a strong attractive tree typical for the species. These trees are healthy, they have good leave count and good colour, indicating healthy root structures. [34] That report was not challenged in any way by the Doolans. They did not require Mr Madderom for cross-examination. Nor did they submit a contrary view from an alternative arborist. Nor did Mr Doolan, who appeared and conducted the hearing for the Doolans, make any submission as to a reduction in weight that should be attributed to Mr Madderom’s report in the absence of him being presented as a witness in the hearing. Left unchallenged its probative value remains high. [35] The recommendations Mr Madderom gave in his report cannot be overlooked, once again not challenged by the Doolans in any way. Therein he made this statement: It is our recommendation to retain the palms and raintrees as they are, except for normal maintenance procedures (I.E. Deadwooding (sic) & Fertilizing, Etc.) These trees present healthy, low risk and are a huge asset to the aesthetics of this property. Reduction of height by pruning should be avoided as it would; (sic) 1. Reduce canopy strength, by way of epicormic regrowth. 11 Ex 5 para’s 33 and 34. 12 Ex 5 Annexure 4 – at pg 13 of the report. -- 10 of 16 -- 11 2. Increase on-going maintenance costs. 3. Effect overall tree health. 4. Destroy the aesthetic value of the tree. [36] This evidence is highly persuasive against taking the action the Doolans seek, at least in terms of the Raintrees. On the premise of that which I could observe from the photographs contained in Mr Brimacombe’s evidence before me, and in the absence of any challenge by the Doolans, I accept Mr Brimacombe’s statement, and the report of Mr Madderom, to be correct, at least to the extent of the Raintrees.13 However the photographs do not show me the extent to which that is so in terms of the Albizia trees. I return to my discussion on those trees later herein. [37] It seems to me that any action taken in respect of the Raintrees in the manner proposed by the Doolans would have a detrimental effect, not only on the trees themselves, but on the ecosystem and Mr Brimacombe’s land. Whilst it may readily be accepted that normal maintenance of the Raintrees is required, such which I infer may include some degree of pruning at various times, it is not something that this Tribunal would order unless such involved remedial action required as a result of a complaint made out in a proceeding such as this. That is the nature of the Doolans complaint, but it is not one that has been effectively made out. [38] But moreover, there is also the issue in terms of the provisions of s 75, namely whether the trees existed before the Doolans acquired their property. The evidence before me, which I accept as being correct, is that the trees were there, being both the Raintrees and the Albizia trees. [39] As I recently observed in Van Bovene v Gay in determination of a dispute over trees that existed prior to possession of a dwelling being taken,14 an observation which in my opinion is apposite to the circumstances the Doolans now find themselves in and so is worthy of being repeated here, it seems to me that it was a matter for the Doolans to have considered the impact that these trees might have had on the view when they were considering the purchase of their house and land. The simple fact is trees will continue to increase in height as they grow until such time as they reach their maximum height or their end of life. If one of the aspects that drew the Doolans to acquire their house and land was the view, it should be expected that they would have taken the time to consider as to what may be the state of that view in years to come with the trees in question, and in the process of doing so at the very least enquire whether the adjoining property owner had in mind the need to keep the trees at a certain height to maintain any view that the new residents of the uphill house and land may have had at the time of purchase. But the Doolans did not present any evidence to that effect. In the absence of same I infer that they did not consider it. [40] In that regard I repeat again the concluding observations I made in Van Bovene v Gay.15 In my opinion when a person acquires a dwelling from which there is a view, but there are trees already in existence on adjoining land that could readily grow to block that view, there must be serious extenuating circumstances to dictate the need for a burden to be cast upon the tree-keeper to take steps to maintain that view. It can only be the case that with the passage of time the view will be lost, that being a factor 13 I note the photos as they appear in the Mr Madderom’s report. 14 Van Bovene v Gay [2024] QCAT 319,[54]. 15 Ibid,[57] to [59]. -- 11 of 16 -- 12 that the person acquiring the dwelling must factor into his/her decision to acquire the dwelling. Moreover, in such instance it would be a factor which must be considered in terms of the question as to whether there is a ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’. [41] It is this factor which is s 75(d) of the ND Act deals with. It must be given some work to do given that the legislature put in in the legislation. Moreover, the issue was clearly in the contemplation of the Parliament when the Bill that ultimately became the ND Act was debated following its second reading on 2 August 2011.16 I particularly note the following question as posed by the Honourable Mr Bleije:17 If there is a structure on a property or it is a pre-existing tree, I seek clarification that people will not be able to use these provisions to make orders in relation to getting trees chopped down when they were pre-existing. I would not think it fair that someone buys into a property where there is a pre-existing structure or tree or something that is already approved or is long-established there and then people can apply and say that it is blocking the sunlight when in fact they bought the property when the structure was already there. I just want to make sure that the bill covers that and does not allow that to happen. [42] In addressing that question, the relevant Minister, the Honourable PT Lucas, did not directly answer it in the affirmative or the negative, but rather he stated this: … there are a number of limbs that one might rely on in relation to the provisions that one can seek. If there is a pre-existing tree there and you have bought a property and it becomes a danger or something like that, then of course you can go back on to that limb, so to speak, to deal with the matter as distinct from this. The intention of this is to stop people growing trees later on deliberately to annoy people or take away their sunlight and also for people not to complain if a tree frankly is there but that otherwise did not cause that. … The main issue relates to the potential application of clause 68 of the bill, which empowers QCAT to make orders that it considers appropriate in relation to a tree causing substantial ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. A tree or trees that rise at least 2.5 metres above the ground and which severely obstructs a neighbour’s view can fall within the ambit of clause 66. The severity threshold requires that the view must be nearly blocked out. Further restrictions limit the protection of a neighbour’s view. The view must be capable of being seen from a dwelling on the neighbour’s property prior to the neighbour taking up possession of the land. If there was not a dwelling on the neighbour’s land which had the view in question and the neighbour has, in fact, built up to obtain a view, then it is highly unlikely that QCAT would make an order for the protection or maintenance of the view. If the neighbour’s view was to satisfy these requirements under clause 66 it would not necessarily result in the removal of trees. Clause 72 sets out that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved, for example, trimming and the like. It is important to remember that under the existing laws there is no property in a view. So this legislation has to some extent changed that in a way to try to 16 Qld, Parliamentary Debates, Legislative Assembly, 2 Aug 2011, pg’s 2309 to 2311, https://documents.parliament.qld.gov.au/events/han/2011/2011_08_02_WEEKLY.PDF (accessed 25 Sep 2024). 17 Ibid, 2309 at 10:29 pm. -- 12 of 16 -- 13 make it fair to people all round and to take into account what people know when they buy a property but also what can happen after they buy a property. [43] As the closing sentence of the Minister’s response to the question shows, what was in contemplation at the time during that debate, and ultimately the premise on which the relevant provisions of the Bill which became s 66(2)(b)(ii), s 66(3)(b)(ii), and s 75(d) of the ND Act, that it must be ‘fair to people all round’, such which must include the tree-keeper in terms of trees existing prior to a neighbour’s purchase, and in reference to that neighbour, ‘what [they] know when they buy a property but also what can happen after they buy a property’. As is readily apparent, what can happen is that the trees can grow and block their view. That is the eventuality that they effectively signed up to when they bought the land. [44] All that being said, in the circumstances where, at the time of purchase of a dwelling on land from which there was a view a tree existed on adjoining land, and that when that tree may grow naturally over time to a certain height or breadth and in turn result in the loss of that view, in all respects that loss of view could not be said to be at the very least an ‘unreasonable interference’ even if it might amount to a ‘severe obstruction’. [45] These factors are those which are relevant and applicable in the circumstances in this proceeding. 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 Raintrees on Mr Brimacombe’s land. As I discuss it later in these reasons under the next heading, my conclusion is the same for the Albizia trees. But what about the Albizia trees and the asserted potential risk of damage ? [46] As I noted it earlier, the evidence presented in terms of the Albizia trees was not as clear and certain as that concerning the Raintrees. At its highest, the following observation appeared in Mr Madderom’s report:18 The Albizia’s (sic) at the rear of the residence are semi-mature and ranging from 300-600 DBH and 12-20 m in height. They have a low leaf count and light colour, typical for the species. The structure of these trees is also typical, being tall with small canopies. [47] But there is one other aspect of Mr Madderom’s report in terms of the Albizia trees that arose during the hearing. As Mr Madderom states therein:19 The Albizia trees, currently are healthy however in abnormal weather conditions these trees present a high risk to the residence, it is our recommendation to remove these trees. [48] In cross-examination of Mr Doolan by Ms Rush, who with leave of this Tribunal conducted Mr Brimacombe’s case for him, the issue of potential damage was raised with Mr Doolan. Why this was done was entirely unclear to me given that the Doolans had expressly stated in their application that damage or risk of damage was ‘not applicable’. But once raised the door was opened and Mr Doolan seemingly took the opportunity to express his concern as to the potential for damage during a cyclone. 18 Ex 5 – Annexure 4 pg 13. 19 Ibid, pg 14. -- 13 of 16 -- 14 However he also accepted the proposition raised with him by Ms Rush that such is a potential risk with any trees in the general region, not just the trees on Mr Brimacombe's land [49] The content of Mr Madderom’s report to which I just referred in terms of his comment regarding the Albizia trees being of high risk to ‘the residence’ was also raised with Mr Doolan in cross-examination. It was suggested to him that was a reference only to the house on Mr Brimacombe’s property. His response was words to the effect of “It should be read as any residence”. [50] Given it was raised, I discuss it here because it raises the question of safety and the potential for damage to occur to property, an issue mandated for consideration by s 73(1)(i) read in conjunction with s 71 and s 72 of the ND Act. [51] I do not agree with Mr Doolan that Mr Madderom’s reference to ‘the residence’ can be read as being anything more than a reference to the residence on Mr Brimacombe’s land. Whilst I can readily accept that given it is a point made in terms of abnormal weather conditions and taking notice of what is, or at the very least should be, common public knowledge of the inherent danger of trees on neighbouring properties during cyclonic conditions, something more would be required in terms of independent evidence as to the affect adverse weather might have on the Albizia trees in their current condition before the comment could be extended to ‘any residence’, and in particular to the Doolans’ residence which is uphill from the Brimacombe land. [52] The issue was also raised by Mr Doolan in his cross-examination of Mr Brimacombe. When he was asked as to whether he had removed the Albizia trees he said he had not acted on it because he did not see any reason he should, and he did not think it was necessary. He also said that if he removed these trees it would put his property at risk of landslide and would reduce his privacy. [53] In closing submissions for Mr Brimacombe, Ms Rush referred to these trees and the issue of their removal. She referred me to material contained in Ex 5 which was tendered for Mr Brimacombe in terms of the Cairns Regional Council hillside development code, vegetation management code, and the potential landslips hazards code. She also indicated that it would require an operational works permit. [54] Whilst I note the comments by Mr Brimacombe and the references Ms Rush made to the Cairns Regional Council codes, those comments and references are bare of anything to support them. For example, to give such evidence and submissions weight, they should have been supported by an opinion from a person who can speak to the relative technical aspects of the codes and the affect of the removal of the trees. Otherwise they are mere lay comments. I thus do not give them any weight such that they would outweigh the opinion of Mr Madderom. [55] What however was important in this issue having been raised in the hearing, and the extent to which it was raised in cross-examination and in closing submissions, is that which I noted earlier herein. Despite Mr Doolan raising this concern, and seemingly it being a concern in terms of his house and the potential for damage to it, he did not seek to amend his application to raise this as an issue nor in any way to seek an order that the Albizia trees be removed. Such was seemingly the positions the Doolans always held since filing their application in this Tribunal. In that regard I note the following statement as it appears in an e-mail from their solicitor at that time to the Cairns Regional Council, filed by their solicitor in this proceeding in response to a Direction from this Tribunal given 3 December 2020 in terms of the Doolans’ -- 14 of 16 -- 15 communications with the Council to the extent the work they sought to have performed on the trees may require the Council’s consent or authorisation:20 Our clients are seeking the QCAT order that the ‘Brimacombe Trees’ be trimmed, and then trimmed regularly, so as not to disturb the views. Our clients are not seeking the removal of the trees. [56] That being said, it seems to me readily apparent that at no time during the course of this proceeding was there any real concern held by the Doolans in terms of potential damage such that the trees needed to be removed, nor even to the extent that they needed to be trimmed. The sole concern the Doolans held was the affect the trees were having on their view. I find that to be a fact and accordingly need not have and so did not consider the issue of the removal of the trees any further. [57] However, for completeness I thought it appropriate to make these two observations. [58] Firstly, the provisions of s 74(b) of the ND Act loom large given Mr Madderom’s opinion and recommendation in terms of the Albizia trees. Mr Brimacombe is squarely on notice, by virtue of the report from an arborist he commissioned, that these trees are unsafe. Secondly, noting the provisions of s 71 and s 72 of the ND Act, there was nothing contained in the material before me to suggest an alternative solution to resolving the safety issue with the Albizia trees. As I noted it earlier herein, Mr Brimacombe’s evidence was that he did not think it was necessary to remove them. However when he was questioned under re-examination as to whether he had in the past undertaken regular maintenance on the trees, his answer was yes since he purchased the land in 1993, which he described in words to the effect of “trimming or removal – whatever was required to protect people and property”. That answer under re-examination indicated to me that he was at the very least conscious of the need for such a possibility and thus should have been able to provide something more in terms of an alternative given Mr Madderom’s stated opinion. It may be appropriate that he now take steps to prevent, at the very least, the likelihood of damage. If he were to do so it may resolve, at least to some degree, the Doolans’ concerns as to the asserted loss of view and Mr Doolan’s concerns about the potential for damage to his house. However whilst I make those observations, they are not a basis for me to make any order for removal of these trees. [59] It thus left only the issue as to whether the Albizia trees were obstructing the Doolans’ view. For the same reasons I gave in terms of the Raintrees, the Doolans’ evidence did not show me that they had lost any view, to the extent it could be said to be a severe obstruction, as a result of the Albizia trees. Moreover, the evidence from Mr Brimacombe given via Mr Madderom’s report as I noted it earlier herein is that whilst the trees were tall, they had a small canopy of low leaf count. From the absence of anything showing me a contrary position, and that comment from Mr Madderom’s report, I infer that at worst they presented a filtered view and so could not be considered to be a severe obstruction. [60] 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 20 This appears in the e-mail from Mr Webb of Preston Law 7 December 2020 to Ms Finney of the Cairns Regional Council which was filed by Mr Webb 4 January 2021 as part of a bundle of material in this proceeding as well as that involving the Murrays to which I referred earlier. It has been extracted here with bold and underlining as it appears in the original. -- 15 of 16 -- 16 with the use and enjoyment of the Doolans’ land caused by the Albizia trees on Mr Brimacombe’s land. Conclusion [61] 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. [62] 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. [63] 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. -- 16 of 16 --