Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Crosswell v Thompson[2019] QCAT 153

Crosswell v Thompson[2019] QCAT 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crosswell & Anor v Thompson [2019] QCAT 153

PARTIES:

SUSAN CROSSWELL

(first applicant)

MATTHEW HETHERINGTON

(second applicant)

 

v

 

RUTH THOMPSON

(respondent)

APPLICATION NO/S:

NDR 217-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

4 June 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. It is declared that the trees, the subject of the proceedings, are situated on rural land.  
  2. The proceeding is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether land is zoned rural under relevant planning scheme – whether the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applies to the trees the subject of the dispute – whether Tribunal has jurisdiction to hear and decide the dispute.

Acts Interpretation Act 1954 (Qld), s 14B(1)(c);

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

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42;

Planning Act 2016 (Qld), s 8, s 10, s 43, s 286, s 91;

Planning (Consequential) and Other Legislation Amendment Act 2016 (Qld), s 302;

Planning Regulation 2017 (Qld), sch 24;

Sustainable Planning Act 2009 (Qld), s 50, s 54

Capo Di Monte v Tolmie & Anor [2013] QCAT 625;

Easterbrook v Janalan Pty Ltd [2015] QCAT 81;

Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663;

Re Cotton Crops Pty Ltd [1985] 2 Qd R 448;

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276.

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

 

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

REASONS FOR DECISION

  1. [1]
    Ms Croswell is the owner of land at North Tamborine. Mrs Thompson is the owner of adjoining land. There are situated on Mrs Thompson’s land a number of trees which Ms Croswell says affect her land.
  2. [2]
    Although not expressed thus, it is sufficiently clear that the Tribunal has directed a preliminary issue be determined, that is, whether the trees are situated on rural land.[1]
  3. [3]
    If the trees are situated on rural land then they are not trees subject to the operation of Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) and the Tribunal does not have jurisdiction to hear and decide a dispute in relation to the trees.
  4. [4]
    The parties have filed submissions and the preliminary issue falls for determination.

Is it appropriate to determine the preliminary issue?

  1. [5]
    I will address whether, and in what circumstances, it is appropriate for a preliminary issue to be addressed before a substantive hearing.
  2. [6]
    In Reading Australia Pty Ltd v Australian Mutual Provident Society (‘Reading’),[2] the Federal Court considered the power of the Court, under O 29 r 2 of the Federal Court Rules 1979 (Cth), to determine an issue separately before the trial of a proceeding.  Branson J  held:

… factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may:

(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. This factor will be of particular significance if the Court may be required to form a view as to the creditability of witnesses who may give evidence at both stages of the hearing of the proceedings or

(iii) prolong rather than shorten the litigation.[3]

  1. [7]
    In Re Cotton Crops Pty Ltd[4] McPherson J held:

It has on occasions been said that very great care is needed in the selection of the proper occasion for adopting the procedure of determining preliminary issues. On the other hand, it has also been said that advantage of that procedure should be taken in cases where there is a point of law which, if decided one way, is likely to be decisive of litigation, the reason being that it saves the need for discovery, proofing of witnesses, and so on.

  1. [8]
    In Re Cotton Crops Pty Ltd the preliminary issue for determination by the Court involved whether a partnership was a limited partnership within the meaning of the relevant statute. McPherson J observed that the determination of the preliminary issue against the applicant would put an end to the litigation. His Honour held:

The question of which a determination is sought by the applicant is essentially one of construction of statutory provisions in the context of the terms of the certificate that has been registered and published… A preliminary determination of the meaning and effect of those provisions is therefore desirable in the interests of all the parties and will clear the way for a separate trial of the various factual disputes if the litigation does in fact proceed to that stage.[5]

  1. [9]
    Ultimately it is a matter for the court or tribunal to be persuaded that it is just and convenient to determine a preliminary issue as a separate issue.[6]
  2. [10]
    The relevant enabling Act in respect of the dispute, the subject of these proceedings, is the NDA. A neighbour may apply to the tribunal for orders in relation to a tree if the neighbour’s land is affected by a tree.[7] The NDA identifies when land is affected by a tree,[8] who is a tree keeper[9] and the tree keeper’s responsibilities for trees on their land.[10]
  3. [11]
    The NDA identifies trees to which the Act does not apply.[11] The NDA does not apply to trees situated on rural land.[12] Rural land means rural land under the Land Valuation Act 2010 (Qld) (‘LVA’).[13]
  4. [12]
    Under the LVA, land is rural land if:
    1. (a)
      under s 10, it is zoned rural land and it has not, under s 11, ceased to be zoned rural land;[14] or
    2. (b)
      under s 13 or 14, it has been declared to be rural land.[15]
  5. [13]
    Under s 10 of the LVA, land is zoned rural land if more than half the land is zoned as rural land, however called, under a planning scheme.[16] Under the LVA land zoned as rural-residential land, however called, under a planning scheme is not zoned as rural land.[17]
  6. [14]
    The essential facts are not in dispute. The trees, the subject of Ms Croswell’s application, are situated on Ms Thompson’s land. Ms Thompson’s land is subject to the Beaudesert Shire Planning Scheme – March 2007 (‘BSPS’). If more than half of Ms Thompson’s land is zoned as rural land, however called, under the BSPS, the land is ‘rural land’ for the purposes of the NDA and the NDA does not apply to the tree. Such an outcome would, of course, be favourable to Ms Thompson. If the tribunal does not have jurisdiction in respect of the application, the proceeding must be dismissed. The determination of the preliminary issue in Ms Thompson’s favour will therefore end the proceeding. If the preliminary issue is determined in Ms Croswell’s favour the matter will proceed to a hearing and a final decision.
  7. [15]
    I am satisfied that the issue for determination involves a question of statutory interpretation and a consideration of the relevant provisions of the LVA, the Planning Act 2016 (Qld) (‘Planning Act 2016’), the Planning Regulation 2017 (Qld) (‘Planning Regulation’) and the BSPS. The determination will not involve significant contested factual issues or the calling of witnesses, nor will it prolong the proceedings. I am satisfied from the content of the submissions by the parties that they understand the preliminary issue for determination.
  8. [16]
    I am satisfied that it is appropriate to determine the preliminary issue.

What do the parties say?

  1. [17]
    Ms Thompson says that her land is zoned ‘rural character’ under the BSPS. Ms Croswell says that the land on which the trees are situated is zoned ‘rural residential’. It is appropriate to note here that Ms Croswell’s submissions appear to be based upon the Draft Scenic Rim Planning Scheme. The Draft Scheme is not yet in effect.

Consideration

  1. [18]
    The LVA was proclaimed on 20 September 2010. The Explanatory Notes to the Bill state:

The Bill applies the site value methodology to non-urban land and the unimproved value methodology to rural land. The Bill delineates between rural and non-rural land based on the current zoning of a state endorsed planning scheme. An exception to this definition is where land is zoned rural but used for an urban purpose approved through a material change of use approval under the Sustainable Planning Act 2009 –– these properties would be assessed under site value.

  1. [19]
    Section 10 of the LVA was amended in 2016.[18] The section, prior to amendment, provided:

10 Zoned rural land

  1. (1)
    An area of land is zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Planning Act (a Planning Act scheme).

Note—

Each local government must keep its planning scheme (including maps of the zones under it) available for inspection and purchase—see the Planning Act, section 724.

  1. (2)
    Also, an area of land is zoned rural land if, under a continued IPA planning scheme, more than half the land is—
    1. zoned as rural land; or
    2. in a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions.
  2. (3)
    To remove any doubt, for this section it is declared that the following land is not zoned as rural land—
    1. land zoned under a Planning Act scheme as rural–residential;
    2. land in a zone (whatever called) under a continued IPA planning scheme that is the nearest equivalent to rural–residential land under the Queensland planning provisions.
  3. (4)
    For subsections (2)(b) and (3)(b), in deciding the nearest equivalent, regard must be had to the purposes and outcomes under the Queensland planning provisions for land to be zoned as rural.
  4. (5)
    In this section—

continued IPA planning scheme means a planning scheme made under the repealed Integrated Planning Act 1997 and continued in force under the Planning Act, sections 777 and 778.

Queensland planning provisions means the standard planning scheme provisions under the Planning Act, section 54

  1. [20]
    The ‘Planning Act’ referred to in the repealed s 10 of the LVA is a reference to the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act). The Sustainable Planning Act was repealed by the Planning Act 2016.[19]
  2. [21]
    Subsequent to its amendment s 10 of the LVA provides:

10 Zoned rural land

  1. (1)
    An area of land is zoned rural land if more than half the land is zoned as rural land, however called, under a planning scheme.

Note— For public access to planning schemes, see the Planning Act, chapter 7, part 3.

  1. (2)
    Land zoned as rural-residential land, however called, under a planning scheme is not zoned as rural land.
  1. [22]
    A ‘planning scheme’ under the LVA means a planning scheme under the Planning Act 2016.[20] A planning scheme under the Planning Act 2016 means a planning instrument that sets out the matters stated in s 4(c).[21] Section 4(c) of the Planning Act 2016 provides that planning schemes set out integrated State, regional and local planning and development assessment policies for all of a local government area.
  2. [23]
    Chapter 8 of the Planning Act 2016 contains the transitional provisions for the repeal of the Sustainable Planning Act. Under the transitional provisions a document under the Sustainable Planning Act that was in effect when the Act was repealed continues to have effect according to the terms and conditions of the document, even if the terms and conditions could not be imposed under the Planning Act 2016.[22] The Planning Act 2016 applies to the document as if the document had been made under the Act.[23] A document includes a planning instrument and specifically, a planning scheme.[24] The name of the document does not change unless s 286(6) of the Planning Act 2016 applies to the document.
  3. [24]
    It follows from the foregoing that the BSPS remains in force and effect. One of the zones in the BSPS is the Tamborine Mountain Zone.[25] Land within the Tamborine Mountain Zone is allocated to a number of precincts, one of which is the Rural Character Precinct. Ms Thompson’s land is situated in the Rural Character Precinct.[26] There is no ‘rural’ precinct within the Tamborine Mountain Zone.
  4. [25]
    Under the BSPS, a precinct is defined as part of a Zone to which specific detailed planning provisions apply.[27] ‘Zone’ is not defined in the LVA, the Planning Act 2016 or the Planning Regulation. In construing s 10(1) of the LVA, and consistent with previous decisions of the tribunal,[28] I consider the reference to ‘zone’ is a reference to both a zone and a precinct that forms part of a zone. This interpretation is consistent with the purpose of the LVA.[29]
  5. [26]
    As I have observed, by s 10(1) of the LVA an area of land is zoned rural land if more than half the land is zoned as rural land, however called, under a planning scheme.
  6. [27]
    Under the repealed s 10 of the LVA an area of land was zoned rural land if, under a continued IPA planning scheme, more than half the land was zoned as rural land or in a zone (whatever called) that was the nearest equivalent under the Queensland planning provisions.[30]
  7. [28]
    The Explanatory Note to the Bill amending s 10 of the LVA has this to say about the amendment to s 10:

Clause 302 amends section 10 (Zoned rural land) to continue the effect of the provision while taking into account changes under the Planning Bill. (emphasis added)

  1. [29]
    The repealed s 10(5) of the LVA defined ‘continued IPA planning scheme’ as:

a planning scheme made under the repealed Integrated Planning Act 1997 and continued in force under the Planning Act, sections 777 and 778.

  1. [30]
    The reference to ‘Planning Act’ is a reference to the now repealed Sustainable Planning Act.[31]  Sections 777 and 778 of the Sustainable Planning Act are not found in the Planning Act 2016. The repealed s 10(5) of the LVA defined ‘Queensland planning provisions’ as:

the standard planning scheme provisions under the Planning Act, section 54.

  1. [31]
    Section 54 of the repealed Sustainable Planning Act provided:

54 Power to make standard planning scheme provisions

The Minister may make standard planning scheme provisions for the whole of the State.

  1. [32]
    Section 50 of the repealed Sustainable Planning Act provided:

50 What are standard planning scheme provisions

The standard planning scheme provisions are the provisions that—

  1. (a)
    are made under division 2 and part 6 by the Minister; and
  1. (b)
    advance the purpose of this Act by providing for—
  1. (i)
    a consistent structure for planning schemes; and
  1. (ii)
    standard provisions for implementing integrated planning at the local level.
  1. [33]
    By s 291 of the Planning Act 2016:

The following instruments made under the old Act stop having effect on the commencement—

  1. (a)
    the State planning regulatory provisions;
  1. (b)
    the standard planning scheme provisions.
  1. [34]
    The amendment to s 10 removing the reference to the Queensland planning provisions[32] reflects the effect of s 291(b) of the Planning Act 2016. The Queensland planning provisions referred to in the repealed s 10(2)(b) were ‘standard planning scheme provisions’ and stopped having effect upon the commencement of the Planning Act 2016. 
  2. [35]
    The repealed s 10 of the LVA identified what land was zoned ‘rural land’ including by reference to the Queensland planning provisions. The repeal of the Sustainable Planning Act removed the reference to the Queensland planning provisions which in turn assisted in identifying whether land was zoned ‘rural land’.
  3. [36]
    I turn now to a consideration of the meaning of s 10 of the LVA.
  4. [37]
    In drafting s 10, the legislature has deliberately qualified the reference to ‘rural land’ and ‘rural-residential land’ by using the words ‘however called’. The provision clearly contemplates that land not bearing the nomenclature under the relevant planning scheme ‘rural land’ or ‘rural-residential land’ may be rural land or rural-residential land (respectively) for the purposes of s 10 of the LVA. The intent of the legislature was, in my view, to classify as ‘rural land’ and ‘rural-residential land’ land zoned (that is, bearing the nomenclature) ‘rural land’ and ‘rural-residential land’ under the relevant planning scheme and land which may not be zoned (bearing the nomenclature) ‘rural land’ or ‘rural-residential land’, but which zoning has the character of ‘rural land’ or ‘rural-residential land’.
  5. [38]
    This interpretation is consistent with the Explanatory Note to the Bill amending s 10 which refers to continuing the effect of the provision while taking into account the changes under the Planning Act 2016. I have reference to the Explanatory Note to confirm the interpretation conveyed by the ordinary meaning of the provision.[33] The effect of s 10, prior to amendment, was to provide guidance as to how to determine whether land was zoned rural or rural-residential despite not bearing that nomenclature.
  6. [39]
    For the purposes of determining whether land is zoned rural land or rural-residential, however called, it is necessary to consider what ‘rural land’ and rural-residential land’ means for the purposes of s 10 of the LVA.  Neither ‘rural land’ nor ‘rural-residential land’ are defined in the LVA or in the Planning Act 2016.  Under the Planning Regulation ‘rural zone’ means premises (however described) designated in a local categorising instrument as rural.[34]
  7. [40]
    A ‘local categorising instrument’ is defined in the Planning Act as:
    1. (a)
      a planning scheme; or
    2. (b)
      a temporary local planning instrument (TLPI); or
    3. (c)
      a variation approval, to the extent the variation approval does any of the things mentioned in subsection.[35]
  8. [41]
    A ‘local planning instrument’ is defined in the Planning Act 2016 as a planning instrument made by a local government and is either:
    1. (a)
      a planning scheme; or
    2. (b)
      a temporary local planning instrument (TLPI); or
    3. (c)
      a variation approval, to the extent the variation approval does any of the things mentioned in subsection.[36]
  9. [42]
    A ‘planning scheme’ is defined as a planning instrument that sets out the matters stated in section 4(c) of the Planning Act 2016.[37] Under the Planning Act 2016 transitional provisions, the BSPS is a planning scheme. As I have observed, the relevant land is within the Tamborine Mountain Zone. The Tamborine Mountain Zone contains no ‘rural precinct’ nor does it contain a ‘rural-residential precinct’.
  10. [43]
    The general rule is that delegated legislation made under an Act should not be taken into account for the purposes of the interpretation of the Act itself. There are exceptions to the general rule however. Delegated legislation may be referred to as a direct aid to construction of an ambiguous or obscure statutory provision where a contemporaneously prepared Act and set of regulations establish an interdependent regime.[38] The Planning (Consequential) and Other Legislation Amendment Act 2016 amending s 10 of the LVA received assent on 25 May 2016. The Planning Act 2016 was assented to on 25 May 2016. The policy objective of the Planning Regulation as stated in the Explanatory Note is:

… to prescribe instruments and address matters provided for under the Planning Act 2016, and provide the mechanics for the operation and implementation of the Act. The Planning Act 2016 will commence on 3 July 2017 and will repeal the Sustainable Planning Act 2009, and therefore also will repeal the Sustainable Planning Regulation 2009. The Regulation transitions the provisions of the repealed Sustainable Planning Regulation 2009 and includes new matters dealt with under the Planning Act 2016.

  1. [44]
    I therefore consider the Planning Regulation is delegated legislation to which I may have resort in considering the meaning of ‘rural land, however called’ and ‘rural-residential land, however called’.
  2. [45]
    Schedule 2 of the Planning Regulation sets out the various zones for local planning instruments. One of the zones is ‘rural zone’. The stated purpose of the ‘rural zone’ is to:
    1. (a)
      provide for rural uses and activities; and  
    2. (b)
      provide for other uses and activities that are compatible with—
      1. existing and future rural uses and activities; and 
      2. the character and environmental features of the zone; and
    3. (c)
      maintain the capacity of land for rural uses and activities by protecting and managing significant natural resources and processes.
  3. [46]
    ‘Rural activity’ is defined in the Planning Regulation and includes an agricultural supplies store; animal husbandry; animal keeping; aquaculture; cropping; an intensive animal industry; intensive horticulture; a permanent plantation; a roadside stall; a rural industry; rural workers’ accommodation; a wholesale nursery; a winery.[39] ‘Rural industry’ is defined and means the use of premises for: (a) storing, processing or packaging products from a rural use carried out on the premises or adjoining premises; or (b) selling products from a rural use carried out on the premises or adjoining premises, if the use is ancillary to the use in (a).[40] ‘Rural use’ is not defined.
  4. [47]
    Schedule 2 of the Planning Regulation also provides for a ‘rural residential zone’ in a planning instrument. The stated purpose of the rural residential zone:

... is to provide for residential uses and activities on large lots, including lots for which the local government has not provided infrastructure and services.

  1. [48]
    I have reference to the stated purposes of ‘rural zone’ and ‘rural residential zone’ as set out in the Planning Regulation in considering whether land within the Rural Character Precinct under the BSPS is land zoned as ‘rural land’, or ‘rural-residential land’, ‘however called’.

The Rural Character Precinct under the BSPS

  1. [49]
    As I have observed, the BSPS divides the Shire into zones and the zones into precincts. The zones include the Tamborine Mountain Zone. The Tamborine Mountain Zone contains a Rural Character Precinct and a Countryside Precinct. There is no rural precinct or rural-residential precinct in the Tamborine Mountain Zone.
  2. [50]
    The tree is situated on land in the Rural Character Precinct. Development within the Rural Character Precinct is stated to be characterised by pockets of good quality agricultural land and land which exhibits high landscape and amenity values. The Precinct provides for large rural residential allotments.[41]
  3. [51]
    Specific outcomes for the Rural Character Precinct include:
    1. Development provides for a mix of predominantly low density rural residential and rural activity on larger acreage lots which are-
    1. typically unsewered; and
    2. generally single dwellings exhibiting a 'rural living' character.
    1. Development provides for Park Living and Rural Character neighbourhoods with a strong sense of community and local identity, through-
    1. providing a safe, efficient and legible local road network; and
    2. the location and design of development that respects local characteristics and setting of the land; and
    3. integration with surrounding development; and
    4. the shared use of community facilities, infrastructure and parks.[42]
  4. [52]
    The various categories of consistent development in the Rural Character Precinct include agriculture, animal husbandry, equestrian activities, and intensive agriculture. The various categories of consistent development not included in the Rural Character Precinct include child care facility, cottage tourist facility, food establishment/reception centre, home based business, retail plant nursery, and shop.[43] 

Is land within the Rural Character Precinct zoned rural land, or rural-residential land, ‘however called’?

  1. [53]
    There is nothing in s 10 of the LVA that prevents more than one zone under a planning scheme being characterised as either ‘rural, however called’ or ‘rural-residential, however called’. It follows that more than one precinct within the Tamborine Mountain Zone may be so characterised.
  2. [54]
    The BSPS includes a Rural Zone. It is useful, in undertaking a consideration of whether land within the Rural Character Precinct of the Tamborine Mountain Zone is zoned rural or rural-residential, to refer to the Rural Zone under the BSPS. The Rural Zone of the BSPS, like the Tamborine Mountain Zone, comprises a Countryside Precinct. Unlike the Tamborine Mountain Zone, the Rural Zone has a Rural Residential Precinct. The Rural Zone does not contain a Rural Character Precinct.
  3. [55]
    The various precincts within the Tamborine Mountain Zone and the Rural Zone might be described broadly as residential, business, agricultural and recreational. As I have alluded to, there are some similarities between the nomenclatures of the various precincts within the zones and the identified outcomes for the precincts. 
  4. [56]
    The intent of the Countryside Precinct in the Tamborine Mountain Zone and the intent of the Countryside Precinct in the Rural Zone are identical:

Development within the Countryside Precinct has an agricultural character typified by broad hectare farming. Limited opportunity also exists for non-farming development – where such development maintains or enhances existing character and amenity.

  1. [57]
    The overall outcomes for the Rural Character Precinct within the Tamborine Mountain Zone are:

Development within the Rural Character Precinct is characterised by pockets of good quality agricultural land and land which exhibits high landscape and amenity values. The Precinct provides for large rural-residential allotments.

  1. [58]
    The overall outcomes for the Rural Residential Precinct within the Rural Zone are:

Development within the Rural Residential Precinct is to cater principally for rural-residential activity on larger acreage lots which are typically unsewered.

  1. [59]
    The Countryside Precincts in the Tamborine Mountain Zone and Rural Zone emphasize the agricultural nature of land within the precincts. Similarly, the Rural Character Precinct refers to ‘pockets of good quality agricultural land’. The outcomes for the Rural Residential Precinct in the Rural Zone make no reference to agricultural land.
  2. [60]
    The purpose statement of the Rural Zone under the Planning Regulation refers to ‘rural uses and activities’. The purpose statement of the Rural Residential Zone under the Planning Regulation refers only to ‘residential uses and activities’. Similarly, the specific outcomes for the Rural Character Precinct include ‘rural activity on larger acreage lots’. The specific outcomes for the Rural Residential Precinct of the Rural Zone under the BSPS do not refer to ‘rural activity’.
  3. [61]
    ‘Rural activity’ has a broad meaning under the Planning Regulation. As I have observed, the reference to ‘rural activities’ as one of the stated purposes of the Rural Character Precinct is consistent with the stated purposes of the ‘rural zone’ under the Planning Regulation. When one compares this with the Rural Residential Precinct in the Rural Zone under the BSPS, it is readily apparent that there is no reference in the latter to rural activities as a stated purpose.  The other stated purposes of the Rural Character Precinct are also consistent with the stated purposes of the ‘rural zone’ under the Planning Regulation.
  4. [62]
    The comparisons between the Rural Character Precinct in the Tamborine Mountain Zone and the Rural Residential Precinct in the Rural Zone of the BSPS highlight the consistency between the Rural Character Precinct and the definition of ‘rural zone’ under the Planning Regulation in providing for rural uses and activities. There is greater consistency between the purposes of the Rural Character Precinct of the Tamborine Mountain Zone and the purposes of the Rural Zone under the Planning Regulation than between the purposes of the Rural Character Precinct and the Rural Residential Zone under the Planning Regulation
  5. [63]
    All of the foregoing leads me to conclude that for the purposes of s 10 of the LVA, land within the Rural Character Precinct of the Tamborine Mountain Zone under the BSPS is land zoned as rural land ‘however called’.
  6. [64]
    What then are the appropriate orders? The tribunal may make a declaration about a matter in a proceeding instead of making an order it could have made about the matter or in addition to an order it could make about the matter.[44]
  7. [65]
    For the foregoing reasons I will make a declaration that the land on which the trees, the subject of the proceedings, are situated is rural land for the purposes of s 42(3)(a) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
  8. [66]
    In light of the proposed declaration, the tribunal does not have jurisdiction to hear and decide the application for a tree dispute. In circumstances where the tribunal considers a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.[45] In the absence of jurisdiction to decide the matter, the proceeding lacks substance and should be dismissed and I order accordingly.

Footnotes

[1]Directions made 1 February 2019.

[2](1999) 240 FCR 276.

[3]Ibid, 279-280 [8] (citations omitted).

[4][1985] 2 Qd R 448, 450 (citations omitted).

[5]Ibid,  451.

[6]Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor [2011] QSC 212.

[7]NDA, s 62.

[8]Ibid, s 46.

[9]Ibid, s 48.

[10]Ibid, s 52.

[11]Ibid, ss 42(3)  - (5).

[12]Ibid, s 42(3)(a).

[13]Ibid, Schedule – Dictionary (definition of ‘rural land’).

[14]LVA, s 9(a).

[15]LVA, s 9(b).

[16]Ibid, s 10(1); Schedule Dictionary - a ‘planning scheme’ means a planning scheme under the Planning Act 2016 (Qld).

[17]Ibid, s 10(2).

[18]Planning (Consequential) and Other Legislation Amendment Act 2016 (Qld), s 302.

[19]Planning Act, s 284A.

[20]LVA, Schedule Dictionary (definition of ‘planning scheme’; definition of ‘Planning Act’).

[21]Planning Act, Schedule 2 Dictionary.

[22]Planning Act 2016, s 286(1).

[23]Ibid, s 286.

[24]Ibid, s 286(a)(xi).

[25]BSPS, pt 7 – Tamborine Mountain Zone.

[26]Ibid, Map 24.

[27]BSPS, Schedule 1, Dictionary Part 3, Defined Terms.

[28]Capo Di Monte v Tolmie & Anor [2013] QCAT 625; Easterbrook v Janalan Pty Ltd [2015] QCAT 81.

[29]LVA, s 4.

[30]A continued IPA planning scheme was a planning scheme under the repealed Integrated Planning Act 1997 (Qld) and continued in force under the (now repealed) Sustainable Planning Act 2009 (Qld). ‘Queensland planning provisions’ was a reference to the standard planning scheme provisions under s 54 of the (now repealed) Sustainable Planning Act 2009 (Qld).

[31]LVA, sch (definition of ‘Planning Act’) later amended by Planning (Consequential) and Other Legislation Amendment Act 2016 (Qld)

[32]LVA s 10(2)(b) later amended by Planning (Consequential) and Other Legislation Amendment Act 2016 (Qld).

[33]Acts Interpretation Act 1954 (Qld), s 14B(1)(c).

[34]Planning Regulation, sch 24 (definition of ‘rural zone’). 

[35]Planning Act 2016, s 43(3).

[36]Ibid, s 8(3).

[37]Ibid, sch 2 (definition of ‘planning scheme’).

[38]Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663.

[39]Planning Regulation, sch 24 (definition of ‘rural activity’).

[40]Ibid, (definition of ‘rural industry).

[41]BSPS, ch 3, pt 7 – Tamborine Mountain Zone, , div 4, sub-div 2, Table 3.7.10.

[42]Ibid, sub-div 7, Table 3.7.16.

[43]Ibid, Table 3.7.7.

[44]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 60(1).

[45]Ibid, ss 47(1), (2)(a).

Close

Editorial Notes

  • Published Case Name:

    Crosswell & Anor v Thompson

  • Shortened Case Name:

    Crosswell v Thompson

  • MNC:

    [2019] QCAT 153

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    04 Jun 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.