Wood v Kenyon[2015] QCAT 335

APPEARANCES:

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

REASONS FOR DECISION

What is this application about?

1. [1]
   When Jerry and Cathy Wood purchased their property in 2002 they enjoyed panoramic views to the Great Barrier Reef including Hayman Island and Hook Island. Over time those views have become increasingly restricted by trees growing on a property owned by Rob and Kerry Kenyon. Mr and Mrs Wood say that their once magnificent views have disappeared. They want the trees removed.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDR Act) and the jurisdiction of the Tribunal

2. [2]
   The NDR Act requires a tree keeper to be responsible for the proper care and maintenance of the tree keeper’s tree.^[1] A ‘tree’ is defined.^[2]
3. [3]
   Land may be ‘affected by a tree’.^[3] A neighbour may apply to the Tribunal for an order if their land is ‘affected by a tree’.^[4]
4. [4]
   On application to the Tribunal, the Tribunal may make orders it considers appropriate in relation to a tree after giving due consideration to a number of matters.^[5]

Who is a neighbour?

5. [5]
   A neighbour is defined in the NDR Act.^[6] If land affected by a tree is scheme land under the Building Units and Group Titles Act 1980 (Qld), the neighbour is the body corporate for the plan.^[7]
6. [6]
   Mr and Mrs Wood’s property is situated at lot 12 Hayman Views Estate. Mr and Mrs Kenyon’s property is situated at lot 14 Hayman Views Estate.
7. [7]
   Mr and Mrs Wood and Mr and Mrs Kenyon have filed material in the Tribunal further identifying their respective properties. That material includes copies of the relevant certificates of title and the group titles plan identifying the respective properties.
8. [8]
   It is clear from the material before the Tribunal that the property of Mr and Mrs Wood is a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980 (Qld) (“BUGTA”). Land may be subdivided into lots and common property by the registration of a plan under the BUGTA^[8]. The description of Mr and Mrs Wood’s property on the relevant certificate of title is Lot 14 on Group Titles Plan 70358.
9. [9]
   Mr and Mrs Wood are not the Body Corporate for Group Titles Plan 70358. They are therefore not a ‘neighbour’. Only a neighbour may apply to the Tribunal in respect of land affected by a tree.^[9]
10. [10]
    The Tribunal does not have jurisdiction in respect of Mr and Mrs Wood’s application for a tree dispute. In circumstances where the Tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived or otherwise lacking in substance, the Tribunal may dismiss or strike out the proceeding^[10]. As the Tribunal does not have jurisdiction in respect of the proceedings, the application is dismissed.

Orders

1.  The Application is dismissed.