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Grant v Hine; Grant v Runge[2016] QCAT 227

Grant v Hine; Grant v Runge[2016] QCAT 227

CITATION:

Grant v Hine; Grant v Runge [2016] QCAT 227

PARTIES:

Michael Grant

Karen Grant

(Applicants)

v

Peter Hine

Jillian Hine

(Respondents)

PARTIES:

Michael Grant

Karen Grant

(Applicants)

v

Steven Runge

Lisa Runge

(Respondents)

APPLICATION NUMBER:

NDR055-16; NDR056-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

29 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

NDR055-16

  1. The application for a tree dispute is dismissed.

NDR056-16

  1. The application for a tree dispute is dismissed.

CATCHWORDS:

JURISDICTION OF TRIBUNAL – tree dispute – whether trees situated on rural land – whether trees excluded from the operation of Chapter 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – operation of Land Valuation Act 2010 – where trees situated on land subject to planning scheme under Sustainable Planning Act 2009

Land Valuation Act 2010 (Qld), s 9, s 10, s 11

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42, Chapter 3, Schedule

Sustainable Planning Act 2009 (Qld)

Easterbrook v Janalan Pty Ltd [2015] QCAT 81

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]
    Michael and Karen Grant bought a house at Glasshouse Mountains in 2009. Mr and Mrs Grant live at lot 3 (the Grants’ land). Mr and Mrs Hine reside at lot 2 (the Hines’ land). Lot 2 adjoins lot 3. Mr Runge resides at lot 4 (Mr Runge’s land). Lot 4 also adjoins lot 3.
  2. [2]
    Mr and Mrs Grant have filed two applications in the tribunal relating to trees situated on the Hines’ land and on Mr Runge’s land. They say that the trees have caused serious damage to their land or property on their land.
  3. [3]
    Mr and Mrs Hine and Mr Runge have each filed applications seeking to dismiss the applications by the Grants. They say their land is zoned rural land and that the Tribunal does not have jurisdiction to make any orders in respect of the trees.
  4. [4]
    The applications to dismiss will be dealt with together as the issues for determination are common to both proceedings.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA)

  1. [5]
    Chapter 3 of the NDA applies to trees. The NDA applies to trees situated on freehold land[1] however the Act does not apply to trees situated on rural land.[2] Rural land is defined.[3] It means rural land under the Land Valuation Act 2010 (Qld) (LVA). Land is rural land if, under s 10 LVA, it is zoned rural land and it has not, under s 11 LVA, ceased to be zoned rural land; or under s 13 or 14 LVA, it has been declared to be rural land.[4] Land is also zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Sustainable Planning Act 2009 (Qld) (SPA) or if, under a continued IPA planning scheme, more than half the land is zoned as rural land or in a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions.[5]

What do the parties say?

  1. [6]
    The Hines’ say that their land is zoned rural. Mr Runge says that his land is zoned rural.
  2. [7]
    In their submissions responding to the Hines’ application to dismiss, the Grants rely upon s 18 NDA and the meaning of agricultural land, pastoral land, prescribed rural land and residential land. They say that the Hines’ land, being 3,500 square metres in size, is not agricultural land, pastoral land or other rural land ‘of more than half a hectare’. The Grants also rely upon s 10(3) LVA. Whilst the submission is not entirely clear, what the Grants appear to be saying is that the trees are situated on rural-residential land. The Grants also refer to two (2) articles relating to the characterisation and/or description of rural land.[6]
  3. [8]
    The Grants have not filed any submissions in response to the application to dismiss filed by Mr Runge.

Consideration

  1. [9]
    The Grants’ land, the Hines’ land and Mr Runge’s land are all situated within the Sunshine Coast Planning Scheme (SCPS).  The SCPS is a planning scheme prepared in accordance with the SPA.[7] A number of zones and zone precincts are identified in the SCPS. These include the rural zone.[8]
  2. [10]
    The Development Information Officer, Sunshine Coast Council, has corresponded with Mr Runge advising that ‘Your property is in a Rural Zone in the Sunshine Coast Planning Scheme.[9] Mr Runge has filed a ‘Development Information Site Report’ (the report).[10] The report notes:

The following report has been automatically generated to provide a general indication of development related information applying to the site.

  1. [11]
    The report identifies the property as Mr Runge’s. This is confirmed by the aerial shot of the property contained in the report. The aerial short accords with the description of the land contained in the application filed by the Grants. The report notes that Mr Runge’s land is in the rural zone. A number of colour coded maps are contained in the report. One of the maps identifies the various zones within the planning scheme. Mr Runge’s land is identified as being in the rural zone. The Grants’ land and the Hines’ land are also identified on the map as being in the rural zone.
  2. [12]
    The Development Information Officer, Sunshine Coast Council, has advised the Hines’:[11]

Thank you for your enquiry regarding (the Hines’ land) which is located in Rural Zone under the Sunshine Coast Planning Scheme 2014.

  1. [13]
    The Hines’ have also filed a copy of the colour coded zoning map from the SCPS. They identify their property and the Grants’ property on the map. The properties accord with the parcels of land identified in the application filed by the Grants. The map identifies that the properties are in the rural zone.
  2. [14]
    The reliance by Mr and Mrs Grant upon s 18 NDA is misconceived. Section 18 is contained in Chapter 2 NDA. Chapter 2 relates to dividing fences. The definitions contained in s 18 are specific to Chapter 2. Chapter 3 NDA applies to trees. The terms ‘agricultural land’, ‘pastoral land’ and ‘prescribed rural land’ are not to be found in Chapter 3 and have no relevance to disputes about trees.
  3. [15]
    The reliance by Mr and Mrs Grant upon s 10(3) LVA is also misconceived. The land on which the trees are situated is not zoned rural-residential. The Grants also seek to advance an argument that the character of the land determines whether it is in fact rural land. I reject this submission. It is not for the tribunal to determine whether a particular zone has a rural character.[12]
  4. [16]
    The parcels of land on which the trees are situated is land within the Sunshine Coast Planning Scheme. The SCPS is a planning scheme made under the SPA. I am satisfied that the parcels of land are zoned rural land under the SCPS. There is no evidence before the Tribunal that the land has ceased to be zoned rural land.[13] I find that, for the purposes of the LVA, the land is rural land.[14] I find that the Hines’ land and Mr Runge’s land is rural land for the purposes of the Chapter 3 NDA. 
  5. [17]
    The trees, the subject of the applications by Mr and Mrs Grant, being on rural land are excluded from the operation of Chapter 3 of the NDA.[15] It follows that the Tribunal has no jurisdiction in respect of the applications by the Grants.
  6. [18]
    In circumstances where a proceeding is lacking in substance or otherwise misconceived, the Tribunal may dismiss the proceeding. The applications by the Grants in NDR055-16 and NDR056-16 are dismissed.

Footnotes

[1]NDA, s 42(1)(a).

[2]NDA, s 42 (3)(a).

[3]NDA, Schedule.

[4]LVA, s 9.

[5]LVA, s 10.

[6]‘Preserving Rural Land in Australia’, Ian W Sinclair; ‘Growth Management and Rural Land’, Ian Sinclair.

[7]Sunshine Coast Planning Scheme 2014, 1.1(1).

[8]Ibid, Table 1.2.1

[9]Email Sunshine Coast Council to Steven Runge, 12 May 2016.

[10]Exhibit “B”, submissions by Steven Runge filed 24 May 2016.

[11]Attachment 1, Response filed 23 May 2016.

[12]Easterbrook v Janalan Pty Ltd [2015] QCAT 81, at [4].

[13]LVA, ss 9(a) and 11.

[14]LVA, s 10(1).

[15]NDA, s 42(3)(a).

Close

Editorial Notes

  • Published Case Name:

    Grant v Hine; Grant v Runge

  • Shortened Case Name:

    Grant v Hine; Grant v Runge

  • MNC:

    [2016] QCAT 227

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    29 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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