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Karnik & Anor v O'Hare & Anor[2019] QCAT 205

Karnik & Anor v O'Hare & Anor[2019] QCAT 205

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Karnik & Anor v O'Hare & Anor [2019] QCAT 205

PARTIES:

amod karnik

(first applicant)

 

SUPRIYA AMOD KARNIK

(second applicant)

 

v

 

daniel john o'hare

(first respondent)

 

LEANNE THERESE RODWELL

(second respondent)

APPLICATION NO/S:

NDR168-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 July 2019

HEARING DATE:

18 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicants filed an application for resolution of a tree dispute – where the applicant claimed a tree on the respondents’ land interfered with the use and enjoyment of their land – where the respondents’ home was built over two separate parcels of land – where the location of the tree was contentious – where the respondents were ordered to obtain a survey of the land – where the survey indicated the tree was located on land not contiguous with the applicants’ land – whether the tree affected the applicants land as required under the legislation – whether the Tribunal had jurisdiction

Land Title Act 1994 (Qld), s 39

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47(1)

Eddes v Bourke & Anor [2018] QCAT 69

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondents:

Self-represented

REASONS FOR DECISION

  1. [1]
    The applicants own a large home at Spring Street, West End. The respondents live diagonally below them in Granville Street. There is a large tree in the respondents’ backyard.
  2. [2]
    The applicants maintain the tree interferes with their view of Brisbane city which they had when they purchased their land.
  3. [3]
    The matter came on for hearing before me and the parties led extensive evidence concerning the unreasonable interference with the applicants’ use and enjoyment of their land.
  4. [4]
    The respondents disagreed that the tree caused substantial unreasonable interference to the applicants and the use of their land. They also challenged the claim by the applicants that the tree was on land adjoining the applicants’ property.
  5. [5]
    The respondents own two lots in Granville Street: lot 2, which is a narrow strip of land approximately 6 m wide, and lot 188, which is approximately 10 m wide. They have built their home across both lots. The rear corner of lot 2 intersects with the applicants’ land at a common corner post. Lot 188 does not. It is 6 m away.
  6. [6]
    The applicants disputed that the tree was located on lot 188 and not on land adjoining their property. They disputed the accuracy of architectural plans submitted by the respondents upon which the respondents had marked the position of the tree as being on lot 188.
  7. [7]
    At the conclusion of the hearing I directed the respondents to engage a surveyor to establish precisely where, in relation to the two lots owned by them, the tree was located.
  8. [8]
    The surveyor’s conclusions were that the trunk of the subject tree was wholly within lot 188. The centre of the tree trunk at ground level was approximately .89 m north of the southern boundary of the lot and .88 m east of the western boundary of the lot. Lot 2 bordered the western boundary of lot 188. Further west at the corner post was the start of the applicants’ land.
  9. [9]
    Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) the Tribunal has jurisdiction in tree disputes if land is affected by a tree. Land is affected by a tree if, amongst other things, the tree has caused or is causing substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land and the land adjoins the land on which the tree is situated or would adjoin the land on which the tree is situated if it were not separated by a road.[1]
  10. [10]
    A tree is situated on land if the base of the tree trunk is situated wholly or mainly on the land.[2]
  11. [11]
    Chapter 3 of the Act deals with trees, or more accurately, tree disputes. Chapter 2 of the Act deals with dividing fences. Chapter 2 defines adjoining land as the land on either side of a common boundary. It defines adjoining owners as owners of the land on either side of the common boundary. Those definitions do not apply to chapter 3 tree disputes, however.
  12. [12]
    The schedule to the Act is a dictionary defining words used in the Act generally and the definition of adjoining land in the dictionary simply refers one to Chapter 2 of the Act concerning dividing fences, as too the definition in the dictionary of the expression adjoining owner.
  13. [13]
    Chapter 3 itself is silent as to what adjoining land or adjoining owner means. Indeed, the expression adjoining owner does not appear at all in Chapter 3.
  14. [14]
    According to the Macquarie Dictionary,[3] adjoining means bordering; contiguous. Contiguous means touching; in contact or in close proximity without actually touching; near.
  15. [15]
    I conclude the applicants’ land is not land affected by the respondents’ tree as required by the Act because the parcels are not adjoining in any way. For land to adjoin for the purposes of the Act it must be either physically contiguous or would, if not separated by a road, be physically contiguous.[4] There is no claim that lot 188 is separated from the applicants’ land by a road. The lots are separated by another lot, lot two.
  16. [16]
    The jurisdictional basis of the Tribunal is not enlivened simply because the parties in dispute happen to own adjoining land. The adjoining land must be the land upon which the offending tree is to be found.
  17. [17]
    The applicants query the accuracy of the survey obtained by the respondents to establish the actual location of the tree. There is reference in the plan of survey about reliance on established survey marks by the surveyor. That is simply an explanation about the base premise methodology used by the surveyor in establishing where the tree is located. I see nothing wrong with it.
  18. [18]
    The surveyor gives separate particulars of the two parcels of land owned by the respondents, lot 2 on RP11212 and lot 188 on RP11166. The applicants say that the lots in question were variously ‘combined’ or ‘amalgamated’ in 1902 and they have been used in combination ever since. The respondents’ home straddles both lots. The two lots are used as a single parcel of land.
  19. [19]
    I take the reference to amalgamation to be used only in a general sense. Where parcels are truly amalgamated because they have the same registered owner or owners a single indefeasible title for the lots is created in the freehold land register.[5] That is not the case here. According to the surveyor’s plan of survey, lot 2 bears the street address number 28A and lot 188 number 28. The lots are not amalgamated under the Land Title Act 1994 (Qld). The respondents’ use of the two lots, to provide sufficient land to build their home, is not relevant to the issue of the Tribunal’s jurisdiction under the Act.
  20. [20]
    At the conclusion of the hearing, as stated above, I directed the respondents to obtain the subject survey report, which they did. They provided the applicants with a copy. I also directed the applicants to file any survey report challenging the respondents’ survey in the Tribunal after that if necessary. They did not do that.
  21. [21]
    I accept the survey report obtained by the respondents accurately depicts the various lots and the position of the tree in issue.
  22. [22]
    The applicants’ land is not affected by the tree concerned as required by the Act. The Tribunal has no jurisdiction to make orders concerning the tree as sought. The application must be dismissed.

Footnotes

[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46.

[2]Ibid s 47(1).

[3]Online as at 17 July 2019.

[4]Eddes v Bourke & Anor [2018] QCAT 69, [10].

[5]Land Title Act 1994 (Qld), s 39.

Close

Editorial Notes

  • Published Case Name:

    Amod Karnik & Anor v Daniel John O'Hare & Anor

  • Shortened Case Name:

    Karnik & Anor v O'Hare & Anor

  • MNC:

    [2019] QCAT 205

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    31 Jul 2019

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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