Murray v Brimacombe[2024] QCAT 419

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   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.
2. [2]
   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.
3. [3]
   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.
4. [4]
   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.
5. [5]
   The Murrays seek relief in this Tribunal by way of orders being made for Mr Brimacombe to undertake removal or pruning of branches to the trees, and other tree work, and that he does so at his cost. They also seek an order that Mr Brimacombe pay their legal costs of their application to this Tribunal.
6. [6]
   For the reasons given herein, the Murrays 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

7. [7]
   In 1993 Mr Brimacombe purchased his land at 1 Moowooga Street, Earlville. It had Raintrees and Albizia trees planted on it.
8. [8]
   In 2012 the Murrays purchased the house and land at 60 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 ‘panoramic’ views across Mr Brimacombe’s property, out to the ocean, and of the city of Cairns. They have lived in the house on the adjoining land at 62 Granadilla Drive since 1985.
9. [9]
   The Murrays complain that the Raintrees and the Albizia trees have now grown to a height that is impacting on this view, to the extent of it being ‘severe’ and will continue to do so such that it is unreasonably interfering with their use and enjoyment of their property.^[1]
10. [10]
    In September 2020, the Murrays commenced this proceeding seeking orders that Mr Brimacombe be required to carry out requisite works to the trees so as the views are reinstated. Within their application to this Tribunal they asserted only that there was an interruption to the views.^[2] They did not assert that the trees have caused, or are likely to cause, serious injury to a person or damage to their land or property on their land. To the contrary they expressly stated in their application that these issues are ‘Not Applicable’.
11. [11]
    In January 2021, Mr Brimacombe responded to the Murrays’ application.^[3] He opposed the application in its entirety arguing that the Murrays have not shown that the obstruction of their view is ‘severe’ as that term is used in the relevant provisions of the ND Act.
12. [12]
    He also raised issues concerning the application as made. As it was presented by the Murrays, they were arguing their case also from the perspective of their house and land at 62 Granadilla Drive. However it did not adjoin his land and moreover any view that existed when they purchased that land was not from a dwelling given that the dwelling on that land did not exist when they took possession of the land. There was also some issues raised therein concerning his land at 44 Granadilla Drive which adjoins his land at 1 Moowooga St, but does not adjoin either 60 or 62 Granadilla Drive, and accordingly the application was not compliant with the provisions of the ND Act in that regard.
13. [13]
    It was appropriate and correct for Mr Brimacombe to have raised these issues. They were the subject of Directions given in this proceeding by the Tribunal on 1 June 2023 effectively dismissing the application to the extent it related to 62 Granadilla Drive, and declaring that to the extent it raised any issues concerning 44 Granadilla Drive the Tribunal did not have jurisdiction, thus also effectively dismissing that part of the application. Those Directions formally recorded that the remainder of the issues raised in the application would be determined at a hearing.
14. [14]
    It is against this background that this proceeding came before me in that hearing for determination.

The Issue

15. [15]
    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.^[4] 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.
16. [16]
    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 Murrays’ 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. As such once again no issues arise for determination in regard thereto. 
17. [17]
    Finally, save only for that which I discussed in paragraphs [12] and [13], there is no dispute that the Murrays have correctly brought their complaint to this Tribunal, nor that this Tribunal has jurisdiction to deal with the Murrays’ complaint.
18. [18]
    The sole issues in this proceeding are whether the Murrays’ 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.

A Preliminary Issue

19. [19]
    Before embarking on the discussion of those issues there is a preliminary issue that I should address briefly in these reasons. It concerns the late provision of Mr Brimacombe’s closing submissions.
20. [20]
    Following the conclusion of the hearing, as discussed at the end of the hearing day, I gave directions for the parties to file written closing submissions. The Murrays met the direction for their initial closing submissions.^[5] However Mr Brimacombe did not meet the timeline for his written submissions. As a result the Murrays did not file any reply submissions as per the Directions.^[6]
21. [21]
    Ultimately, Mr Brimacombe was ten (10) days late in filing his submissions.^[7]  Simultaneously with that late delivery, he applied for an extension of time to file and serve his submissions.^[8] To ensure that the Murrays were afforded procedural fairness in regard to that application, on 6 September 2024 I gave directions for the Murrays to file any submissions they wished to make should they oppose the application for extension of time. The Murrays did oppose it, filing submissions in accordance with those Directions.^[9]
22. [22]
    The Murrays’ opposition to the application for extension of time was simply that it should be denied because Mr Brimacombe had already dragged out the proceeding nearly four (4) years, and that earlier hearings had been deferred as a consequence.
23. [23]
    I did not accept that as being a valid reason to deny Mr Brimacombe the requested extension of time. It did not demonstrate any prejudice being occasioned on the Murrays by the late delivery of his written closing submissions. Put simply, it made no difference to the timeline by which this proceeding would have been resolved with me having indicated to the parties at the end of the hearing when I reserved my decision that I anticipated having my decision and reasons published by the end of October 2024. As other matters have unfolded, time became available for me to be able to deal with this proceeding earlier that I had anticipated. Notwithstanding that, the late delivery did not impact on my timing to be able to deal with the matter thus I allowed the application, issuing a Direction (thus effectively a decision on his application), separate from but contemporaneously with the decision on the substantive application, thus allowing the extended time Mr Brimacombe requested. 
24. [24]
    Accordingly I received his written submissions for consideration in this proceeding. In doing so there remained the issue of the Murrays’ reply (if any) that they might make to those submissions. As I noted it in paragraph [20] herein they had not filed any such reply. I considered making further directions for them to do so if they wished to, given that I had allowed Mr Brimacombe the additional time and accordingly received his written submissions as part of his material in this proceeding. However ultimately I decided not to do that. This was because I had the time available to deal with this proceeding now, with the result of me otherwise issuing directions and affording the Murrays the opportunity to provide reply submissions only serving to delay the process even further. Something it seemed to me the Murrays were anxious to avoid.
25. [25]
    But moreover, whilst at first blush that might be viewed as a denial of procedural fairness to them, in my opinion it does not lead to that. This is because there is nothing of substance contained in Mr Brimacombe’s closing submissions on which my decision turned that is not already addressed in the Murrays’ evidence, tendered and marked as exhibits in the proceeding and referred to in their written closing submissions. Or to put it another way, there was nothing more they could say in reply submissions that would inform me of anything such that they might persuade me to reach a different conclusion. Thus, together with my direction in terms of the extended time for Mr Brimacombe, I formally dispensed with the need for the Murrays to file any reply submissions.
26. [26]
    I thus now turn to the substantive issues for determination in dealing with what remains of the Murrays’ application.

Relevant Law

27. [27]
    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—

1. any of the following applies—

1. …;

2. the tree has caused, is causing, or is likely within the next 12 months to cause—

1. serious injury to a person on the land; or

2. serious damage to the land or any property on the land; or

3. 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—

1. cutting and removing any part of the tree (including its branches or roots); and

2. …; and

3. destroying the tree.

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—

…

3. 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—

1. the neighbour has made a reasonable effort to reach agreement with the tree-keeper;

2. …;

3. …;

4. …

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—

1. …; or

2. to remedy, restrain or prevent—

1. …; or

2. 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 –

1. the tree rises at least 2.5 m above the ground; and

2. the obstruction is –

1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or

2. severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

…

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.

…

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—

1. …;

…

4. any contribution the tree makes to the local ecosystem and to biodiversity;

5. any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

6. …;

7. 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;

8. any impact the tree has on soil stability, the water table or other natural features of the land or locality;

1. …;

10. 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;

11. 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.

…

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—

…

4. 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

28. [28]
    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 Murray describes the efforts he and his wife had taken to reach an agreement with Mr Brimacombe.^[10] Mr Brimacombe provides similarly testimony.^[11]
29. [29]
    Much of this involved another neighbour and adjoining land owner who makes a similar complaint to that made by the Murrays, namely a Mr and Mrs Doolan who own and reside on a different property on Granadilla Drive. It is apparent on my reading of the statements that Mr Murray conducted much of the discussion with Mr Brimacombe at times involving Mr Doolan but also at times on Mr Doolan’s behalf. The Doolans have also commenced a proceeding in this Tribunal seeking similar orders to those sought by the Murrays concerning the trees on Mr Brimacombe’s land. That is case number NDR 147-20. 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 have said herein, were issued contemporaneously with my decision and reasons in this matter.
30. [30]
    Mr Murray uses the language of Mr Brimacombe purportedly ‘refusing’ certain things, and Mr Brimacombe uses the language ‘unreasonable position’ in reference to the Murrays. 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 Murrays. In that regard the descriptions to which I have just referred are not indicative of a failure by the Murrays to have engaged in a ‘reasonable effort’ as is required under s 65(a) of the Act.
31. [31]
    That being so, I turn to the Murrays’ complaint.

Obstruction of a view

32. [32]
    As I noted it earlier, the Murrays’ complaint was only that of the asserted obstructed view resulting in the interference with the use and enjoyment of their land. In addressing this issue there are two aspects to it that are necessary to take note of.
33. [33]
    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,^[12] such which has been adopted in Australia,^[13] and in turn the position taken by this Tribunal over many years when considering tree disputes.
34. [34]
    As Justice Alan Wilson, the then President of this Tribunal, observed in 2013 in Laing v Kokkinos (No 2):^[14]

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.

35. [35]
    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:^[15]

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.

36. [36]
    Thus, turning to that three step process, the following observations could readily be made from the documentary material the parties put before this Tribunal.
37. [37]
    As to the first step, there was an absence of clarity in the Murrays’ evidence as to the extent of the view at the time they took possession of the dwelling as it was then on their land. 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 Murrays took possession of their land.
38. [38]
    As to the second step, the Murrays’ evidence before me does not support their assertion as to a loss of a view. This is effectively Mr Brimacombe’s response to the Murrays’ application. I agree with him.
39. [39]
    In their written closing submissions, the Murrays seek to have me accept that the views they had are now ‘entirely blocked’.^[16] In doing so they refer me to said to be photos taken on 4 and 9 June 2022.^[17] But on my inspection and consideration of the photographs as they are in evidence, they are not unequivocal in terms of showing an entirely blocked view. To the contrary, whilst there is no question they show trees visible in the horizontal line of sight, they also show what appears to be to be large substantive area of view to the ocean and mountains beyond. Additionally, it is entirely unclear as to from what position these photos were taken. This is a point properly and appropriately raised by Mr Brimacombe in his written statement.^[18] 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.
40. [40]
    As I discuss the issue later in these reasons as to the question of the trees being in existence prior to the Murrays purchasing the land at 60 Granadilla Drive, I refer to and extract at paragraph [64] 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.^[19] Such was noted in this Tribunal as far back as 2013 by the then President Justice Alan Wilson in Mahoney v Corin.^[20] As I just noted, the photos do not show an ‘entirely blocked’ view, nor do they show a ‘nearly blocked out’ view. They all show something far less than either of those descriptors.
41. [41]
    I should also for completeness say one more thing about this issue given the Murrays’ closing submissions. Therein, such which I infer were prepared by the Murrays’ solicitor given they were filed under cover of an e-mail from the solicitors, they seek to described the meaning of ‘severe’ by reference to dictionary definitions. Whilst on occasion reference to a dictionary to determine the meaning of a word used in a statute can be helpful, the proper starting position is to look to the Explanatory Notes and the Second Reading speeches / parliamentary debates in terms of the Bill introduced into parliament when the relevant term is not defined in the Act itself. This is the basis upon which I have considered and decided the issue.
42. [42]
    However even if I was wrong about all of that, the third aspect swings the pendulum against the Murrays. 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).
43. [43]
    In terms of the provisions of s 73, I note the extent to which Mr Brimacombe relies on a report from an arborist, Mr Madderom, in his statement tendered as his evidence in chief.^[21] In turn he then makes this statement, it not being challenged in any way by the Murrays under cross-examination or by them having presented any evidence establishing a contrary position:^[22]

… 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 …

44. [44]
    I also note the following observations reported by Mr Madderom:^[23]

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.

45. [45]
    That report also was not challenged in any way by the Murrays. They did not require Mr Madderom for cross-examination. Nor did Mr Murray, who appeared and conducted the hearing as representative for himself and his wife, 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.
46. [46]
    Nor did they submit a contrary view from an alternative arborist. In Mr Murray’s second statement filed in this proceeding he purported to give evidence about a discussion he had engaged in with a Mr Leo Soenario said to be from Zen Abor, and a such I infer is asserted to be an arborist.^[24] But those comments did not assist the Murrays in any way in terms of presenting an alternative view of an arborist.
47. [47]
    He also refers to what is said to be a ‘report’ from a Mr Paul Richmond of Branching Out Tree Specialists dated 4 July 2021 in which Mr Richmond comments on what I understand to be his reference to Mr Madderom’s report.^[25] However the Murrays did not present Mr Richmond as a witness so as his comments and opinions on Mr Madderom’s report could be properly tested.
48. [48]
    Mr Richmond’s report addressed only the Raintrees. Therein, in that regard he asserts that Mr Madderom’s report is inadequate to enable the overall health and safety of the trees to be determined, and then he concludes his report with these statements:^[26]

If the trees are of overall good health then pruning should be able to take place to Australian standards to achieve the desired outcome.

The red line indicates an approximately (sic) area where the trees could be reduced too (sic) as long as the work is carried out to Australian Standards.

49. [49]
    These are highly qualified opinions which in my opinion carry no weight. They leave open the question - what if the trees are not in overall good health, as well as leaving  open and unaddressed the issue as to what the Australian standard is that is must be followed and what the impact (if any) is on the extent to which the trees may be pruned.
50. [50]
    As to the extent to which he says the Raintrees could be cut back to, such being by reference to a red-line which during the course of the hearing Mr Murray sought to have me focus on, it suggests what could be thought to be a straight line horizontal cut. Yet, it is not explained how it could be achieved given what Mr Richmond described in his report as to the processes of what is called ‘reduction pruning’ and as part of that ‘drop crotch pruning’. Given the limited description is his report, on my reading and understanding of it I am unable to see how the reduction to the red line could be achieved without a dramatic and potentially adverse effect on the trees.
51. [51]
    For all these reasons I do not accept Mr Richardson’s report as having any probative value.
52. [52]
    In my opinion, the recommendations Mr Madderom gave in his report cannot be overlooked, once again not challenged by the Murrays 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.

2. Increase on-going maintenance costs.

3. Effect overall tree health.

4. Destroy the aesthetic value of the tree.

53. [53]
    This evidence is highly persuasive against taking the action the Murrays 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 Murrays, I accept Mr Brimacombe’s statement, and the report of Mr Madderom, to be correct, at least to the extent of the Raintrees.^[27] 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.
54. [54]
    It seems to me that any action taken in respect of the Raintrees in the manner proposed by the Murrays 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 Murrays complaint, but it is not one that has been effectively made out.
55. [55]
    But moreover, there is also the issue in terms of the provisions of s 75, namely whether the trees existed before the Murrays acquired their land. The evidence before me, which I accept as being correct, is that the trees were there, being both the Raintrees and the Albizia trees.
56. [56]
    Mr Murray’s evidence about this is contradictory. In his first statement filed in this proceeding he asserts:^[28]

Because of my ownership of Number 62 and Number 60, and the fact that I have lived in Number 62 for approximately 35 years, I am aware that there are at least three (3) very large ‘Rain Trees’ and Albizia trees located and growing on the Respondent’s Property at 1 Moowooga Street (Respondent’s Trees).

I do not know how long the Respondent’s Trees have been on the Respondent’s Property, but they were not visible or noticeable from Number 62 of Number 60 when we bought the lots.

57. [57]
    However, under cross-examination during the hearing, Mr Murray stated, with a degree of certainty as I observed him, that when he purchased 60 Granadilla Drive he was aware of the existence of the Raintrees on the land at 1 Moowooga St.
58. [58]
    I do not accept that when the Murrays purchased Number 60 they were not aware of the Raintrees on the property below. As Mr Murray said elsewhere in his statements:

    1. Mr Brimacombe trimmed the trees in about 2014, and that the trees have continued to grow since that time, and in about August 2019 they had grown to a height of approximately 20 m tall;^[29] and
    2. He first raised the issue of his complaint with Mr Brimacombe in August 2019.^[30]
59. [59]
    The presence of these statements means that his evidence that was unaware of the trees existing in 2012 when he purchased Number 60 is simply not correct unless it is the case, such which is not identified anywhere in his evidence, that these trees were somehow concealed from view when standing in the dwelling at Number 60 and overlooking 1 Moowooga Street, or that they all grew rapidly in the two years since purchasing the land before he observed them being trimmed, and in turn once again grew so rapidly since 2014 such that they became ‘very large’ in around five years.
60. [60]
    But I infer, that if it to be accepted that he was not aware of the existence of the trees in 2010, it is simply that he just did not look. However that inference is challenging to draw given his statement he had lived on the adjoining property at Number 62 for the 25 years prior. It is not realistic to expect that during that 25 years he never saw these Raintrees. He must have known of their existence, and of the fact that over time they were growing in height. To the extent it is necessary in terms of what I say in the paragraphs that follow here, I reject his evidence that he did not know of the trees and find as a fact that he did know of them when he and his wife purchased Number 60 and took possession if it.
61. [61]
    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,^[31] an observation which in my opinion is apposite to the circumstances the Murrays now find themselves in and so is worthy of being repeated here, it seems to me that it was a matter for the Murrays to have considered the impact that these trees might have had on the view when they were considering the purchase of the house and land at Number 60. 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 Murrays to acquire Number 60 was the view,^[32] 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. I expressed the same opinion in my reasons for decision in terms of the Doolans’ proceeding to which I referred earlier. But such is even more so the case with the Murrays given they had lived in the adjoining property for the prior 25 years and so, as I stated earlier, must have been aware of the growth of those trees. But the Murrays did not present any evidence to that effect. In the absence of same I infer that they did not consider it, or if they did consider it such was not an issue of concern.
62. [62]
    In that regard I repeat again the concluding observations I made in Van Bovene v Gay.^[33] 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 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’.
63. [63]
    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.^[34] I particularly note the following question as posed by the Honourable Mr Bleije:^[35]

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.

64. [64]
    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 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.

65. [65]
    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.
66. [66]
    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 be a ‘severe obstruction’.
67. [67]
    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 Murrays’ 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.
68. [68]
    However before leaving the issue of the Raintrees, for completeness there is one observation I should make in terms of the argument and evidence put forward by Mr Murray. In reference to s 72 of the ND Act, and the reference therein to whether the issue ‘can not otherwise be satisfactorily resolved’, the Murrays submit that the evidence shows the trees can be trimmed without destruction or removal.^[36] That submission relies on the report of Mr Richmond of Branching Out, a report which I have already dismissed as having any probative value. Thus I do not accept the Murrays’ argument in that regard as having any substance.

But what about the Albizia trees?

69. [69]
    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:^[37]

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.

70. [70]
    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:^[38]

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.

71. [71]
    Even though that opinion was given by Mr Madderom, and his report formed part of Mr Brimacombe’s statement that he had served in the proceeding and so was with the Murrays, the Murrays did not raise the issue at any time in the proceeding nor did Mr Murray raise it with Mr Brimacombe during cross-examination in the hearing. In the absence of such I infer it is not a concern to the Murrays.
72. [72]
    Such was seemingly the positions the Murrays 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 Murrays’ 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:^[39]

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.

73. [73]
    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 Murrays 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 Murrays 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.
74. [74]
    However, for completeness I thought it appropriate to make these  two observations with the anticipation they might assist the parties as neighbours going forward, given that tt 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.
75. [75]
    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. 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 Murrays’ concerns as to the asserted loss of view. However whilst I make those observations, they are not a basis for me to make any order for removal or otherwise trimming of these trees.
76. [76]
    It thus left only the issue as to whether the Albizia trees were obstructing the Murrays’ view. For the same reasons I gave in terms of the Raintrees, the Murrays’ 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.
77. [77]
    Finally, as I did with the issue of the Raintrees before leaving the issue of the Albizia trees I make one further observation for completeness. The Murrays submitted that photographs show Mr Brimacombe had not complied with a Direction of this Tribunal said to have been given on 24 May 2021 requiring him to have pruned the Albizia trees and replace them with smaller more appropriate trees.^[40] However no such direction was ever given. The direction was simply to provide:^[41]

Written confirmation of actions taken to prune the height of the Albizia trees at the rear of the respondent’s property and the planting of a more appropriate tree species.

78. [78]
    My Murray’s understanding of this direction is entirely misguided, and so his submission is without substance.
79. [79]
    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

80. [80]
    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.
81. [81]
    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.
82. [82]
    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.