Bell v Griffiths - [2013] QCAT 655

CITATION:

Bell v Griffiths [2013] QCAT 655

PARTIES:	Adrian Simon Bell (Applicant)
V
Andrew Griffiths (Respondent)

APPLICATION NUMBER:

NDR186-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

2 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

TREE DIPSUTE – Land affected by tree does not adjoin land of the tree-keepers and is not separated by a road – question of whether Tribunal has jurisdiction to hear application where land of neighbours does not adjoin nor is it separated by a road - dismissal of basis application lacks substance

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48, 49, 66
Queensland Civil and Administrative Tribunal Act 2009 s 47

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Mr Bell is the owner of land at 35 Dudley Street, Bardon. Mr Griffiths owns land at 37 Dudley Street, Bardon. The two properties are separated by a strip of land belonging to the owner of the property at 35A Dudley, Street. Mr Bell, as the neighbour[1] alleges that his land is affected by a palm tree that is situated on the land owned by Mr Griffiths, as the tree-keeper.[2]

[1] Neighbour Disputes (Dividing Fences and Trees) Act 2011 s 49.

[2] Ibid s 48.

The Tribunal has jurisdiction to make orders it considers appropriate in relation to a tree affecting the neighbours land.[3] Land is affected by a tree in certain circumstances with the condition that 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.[4] The word adjoins is not defined in respect of its use in that section though road is defined in the Dictionary to the Act, an area of land dedicated to public use as a road; or an area that is open to or used by the public…

[3] Ibid s 66.

[4] Ibid s 46.

The Tribunal was concerned that there may have been a lack of jurisdiction in this case if Mr Bell’s land was found not to adjoin Mr Griffiths property or be separated from it by a road. The Tribunal made directions for the parties to file submissions in regard to that question and for the question of jurisdiction to be determined on the papers.[5]

[5] Queensland and Administrative Tribunal Act 2009 s 47(3).

Mr Bell in his submissions described the positioning of the properties as “the defendant’s house and my house are approximately 7 metres apart. The actual boundaries of Mr Griffiths and my property are approximately (3) metres apart, being the width of an approximately 50 metre long sealed bitumen laneway between my property and the property of Mr Griffiths. A copy of a survey map is annexed to Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 655
Decision Date

CaseChat Overview and Summary

In the matter of Bell v Griffiths, the applicant, Adrian Simon Bell, sought an order from the Queensland Civil and Administrative Tribunal (QCAT) to address an issue with a palm tree on the property of the respondent, Andrew Griffiths. The properties in question are located at 35 and 37 Dudley Street, Bardon, with a strip of land owned by a third party at 35A Dudley Street separating them. Mr Bell alleged that his property was adversely affected by the palm tree on Mr Griffiths' property, and he sought an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act). The central legal issue before the Tribunal was whether it had jurisdiction to hear Mr Bell's application. The ND Act grants the Tribunal the authority to make orders if land is affected by a tree on neighbouring property, provided that the land either adjoins the tree-keeper's land or is separated by a road. The Tribunal considered whether Mr Bell's land met these criteria.

The Tribunal found that Mr Bell's property did not adjoin Mr Griffiths' property, as there was a strip of land owned by a third party between them. Additionally, the strip of land did not qualify as a road under the definition in the ND Act, which specifies that a road must be dedicated to public use. The laneway between the two properties was a private concrete driveway, and therefore, the properties did not meet the statutory criteria for the Tribunal's jurisdiction. Consequently, the Tribunal concluded that the application was misconceived and lacked substance, as it did not have jurisdiction to hear the matter. The Tribunal dismissed the application under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

Orders