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- Unreported Judgment
Smith v Attawar QCAT 190
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Smith v Attawar  QCAT 190
CARMELE ELIZABETH SMITH
Other civil dispute matters
16 July 2019
On the papers
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – disputes between neighbours – whether land is zoned rural land for the purposes of s 42(3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether the Tribunal has jurisdiction to hear and decide the dispute – whether the application should be dismissed
Land Valuation Act 2010 (Qld), s 10
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(3)(a), s 48, s 49, s 61
Planning Act 2016 (Qld), schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor  QSC 212
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
- Carmele Elizabeth Smith claims that a number of trees situated on adjoining land owned by Chet Attawar affect her land.
- Ms Smith applied to the Tribunal for an order that the trees alleged to be affecting her land be removed and that Mr Attawar pay for the cost of removal of the trees. In the application for a tree dispute filed in the Tribunal, Ms Smith identifies Mr Attawar and another person as the named respondents.
- Mr Attawar seeks an order that the application for a tree dispute filed by Ms Smith be dismissed. Mr Attawar says that the trees, the subject of the dispute, are located on his land that is classified or zoned in its entirety as rural land. Mr Attawar says that the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) does not apply to trees situated on rural land. Further, Mr Attawar says that he is the registered owner of the land and is therefore the proper respondent who should be named in the proceedings.
- In this matter a member of the Tribunal directed that a preliminary issue be determined on the papers, now set out below:
- (a)Whether the Tribunal has jurisdiction in the dispute, having regard to the application for miscellaneous matters filed 12 February 2019 concerning whether the trees are on rural land, whether the parcel of land in question is more than four hectares, and whether the trees are planted or maintained for commercial purposes as a condition of a development approval;
- (b)Consequently, whether the application for a tree dispute is to be dismissed.
- The parties filed written submissions and material in response to the Tribunal’s directions to determine a preliminary issue.
- I am satisfied that it is appropriate to determine the preliminary issue separately before the determination of the application to resolve a tree dispute. Here, the issue to be considered involves a consideration of the relevant sections of the ND Act and will not require the Tribunal to make any findings about contested factual issues. More importantly, if I find that Mr Attawar’s land is zoned rural land and the ND Act does not apply then the Tribunal will consider whether the application should be dismissed under s 47 of the QCAT Act on the basis that the proceeding is ‘frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process’.
Does the Tribunal have jurisdiction?
- The Tribunal has jurisdiction to make orders in relation to trees in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree. The ‘neighbour’ in relation to a particular tree is, amongst other things, the ‘registered owner’ of the lot. The ‘tree keeper’ for a tree, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld), is the registered owner of the lot.
- The ND Act does not apply, however, to ‘rural land’. The ND Act defines ‘rural land’ to mean rural land under the Land Valuation Act 2010 (Qld) (‘LV Act’). Land is ‘rural land’ under the LV Act if it is zoned rural land. Relevantly, s 10 of the LV Act provides that 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 under the Planning Act 2016 (Qld).
- Here, Ms Smith has filed a copy of the relevant title search for the land identified by her as being the land affected by the trees namely Lot 8 on Registered Plan 196648. Ms Smith is named as the registered owner of Lot 8 on Registered Plan 196648. Ms Smith also filed a copy of the current title search for the land identified as Lot 15 Survey Plan 240279 being the land on which the trees are situated. The relevant title search identifies Mr Attawar as the registered owner of Lot 15 Survey Plan 240279 (‘the land’).
- I am satisfied that Mr Attawar is the registered owner of the land and that it is appropriate to amend the record to reflect that Mr Attawar is the proper named respondent in the proceeding. I order accordingly.
- I am also satisfied that Mr Attawar’s land is zoned rural land. Mr Attawar relies on correspondence from Somerset Regional Council (‘the Council’). The Council confirms in writing that the land described as Lot 15 on SP240279 is zoned rural land. Mr Attawar has also filed a copy of the Somerset Regional Council ‘eservices’ property information that identifies the area of the land as being 0.351 hectares and the zoning of the land as ‘rural’. The Somerset Region Planning Scheme is a planning scheme made in accordance with the Planning Act 2016 (Qld).
- There is no evidence before me that the land owned by Mr Attawar (being the land where the trees are situated) is no longer zoned rural land under the Somerset Region Planning Scheme. I find that Mr Attawar’s land is zoned rural land for the purposes of s 42 of the ND Act. Because the trees, the subject of the dispute, are located on Mr Attawar’s land that is zoned rural land, the ND Act does not apply to this matter. There is no jurisdiction in respect of the application for a tree dispute filed by Ms Smith.
- It is appropriate in this matter to dismiss the proceeding under s 47 of the QCAT Act because I have determined that the Tribunal has no jurisdiction in respect of Ms Smith’s application. The application or proceeding is lacking in substance or is otherwise misconceived. The application for a tree dispute filed 29 October 2019 is dismissed. I order accordingly.
 Application for a tree dispute filed 29 October 2018.
 Application for miscellaneous matters filed 13 February 2019.
 Submissions filed by the respondent on 13 February 2019.
 Tribunal directions dated 20 February 2019.
 See Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor  QSC 212 as to the considerations for determining a preliminary issue.
 ND Act, s 61.
 See s 49 of the ND Act and the schedule for the definition of ‘neighbour’ and ‘tree keeper’.
 ND Act, s 48.
 Ibid, s 42(3)(a).
 Ibid, schedule.
 Land Valuation Act 2010 (Qld), s 10 and ‘planning scheme’ as defined under the schedule.
 Submissions to QCAT concerning preliminary matters filed 20 March 2019 together with attachment.
 See the Somerset Region Planning Scheme, Version Three.
- Published Case Name:
Carmele Elizabeth Smith v Chet Attawar
- Shortened Case Name:
Smith v Attawar
 QCAT 190
16 Jul 2019