Capo Di Monte v Tolmie - [2013] QCAT 625

CITATION:

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

PARTIES:	Capo Di Monte CTS 34920 (Applicant)
v
Robert Tolmie and Caroline Tolmie (Respondent)

APPLICATION NUMBER:

NDR186-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

21 November 2013

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

21 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The trees in this Application are situated on rural land and thereby excluded from the Tribunal’s jurisdiction by section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011; and

2. The Application is dismissed.

CATCHWORDS:

Application of Act to tree – jurisdiction – trees situated on rural land – countryside precinct– rural or rural-residential equivalent

Land Valuation Act 2009 s 9, 10
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42, 61

McNamara v. Evans & Anor [2012] QCAT 219

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

What is this Application about?

On 11 September 2012, the Body Corporate of Capo Di Monte CTS 34920 applied to the Tribunal to have the trees removed or pruned from their neighbouring property at 42 Yuulong Street, North Tamborine. Mr Robert Tolmie and Mrs Caroline Tolmie own this property.
On 25 July 2013, the Tribunal directed the parties to provide evidence on whether the trees are on rural land and therefore outside its jurisdiction.
The Body Corporate claims that the property is not on rural land. The Body Corporate contends that the land is zoned as ‘Countryside Precinct’ and therefore not the same as ‘Rural’. The Body Corporate also contends that the use of the property “as a large ornamental garden… does nothing to enhance the existing character and amenity of the area.”[1]
[1] Statement of Evidence with attachments by Capo Di Monte Body Corporate filed 7
August 2013.
The parties have provided their evidence[2] and the Tribunal must therefore determine jurisdiction.
[2] Statement of Evidence with attachments by Capo Di Monte Body Corporate filed 7
August 2013 and Statement of Evidence with attachments by Robert and Caroline
Tolmie filed 26 September 2013.

What is the Tribunal’s jurisdiction?

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 confers upon the Tribunal jurisdiction to make orders in relation to trees.[3] The Tribunal’s jurisdiction does not extend to trees situated on rural land.[4]
[3] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 61.
[4] Ibid s 42(3)(a).

What is rural land?

“Rural land” means rural land under the Land Valuation Act 2010.[5]
[5] Ibid, Schedule definition.
That Act relevantly provides land is rural land if it is zoned rural land or the valuer-general declares the land to be rural land.[6]
[6] Land Valuation Act 2010 s 9.
An area of land is zoned rural land if:
- under a planning scheme under the Planning Act, more than half the land is zoned as rural land[7];
- under a continued…

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.

Keep reading for free

Create a free CaseChat account to read Capo Di Monte v Tolmie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCAT 625
Decision Date

CaseChat Overview and Summary

Capo Di Monte CTS 34920, an applicant, filed an application against Robert Tolmie and Caroline Tolmie, respondents, seeking an order for the removal or pruning of trees from the neighbouring property owned by the respondents. The parties presented their evidence, and the Tribunal was required to determine its jurisdiction. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 grants the Tribunal jurisdiction to make orders in relation to trees, but this jurisdiction does not extend to trees situated on rural land. Rural land is defined under the Land Valuation Act 2010, which provides that land is rural if it is zoned as rural or declared to be rural by the valuer-general. In this case, the land in question is zoned as the Tamborine Mountain Zone, Countryside Precinct under the Beaudesert Shire Planning Scheme – March 2007. The Tribunal found that the land is zoned as rural land, and therefore it does not have jurisdiction over the matter. The application was dismissed.

The Tribunal considered the meaning of “rural land” and how it applies to the zoning of the land in question. The Tribunal determined that the land is zoned under a continued IPA planning scheme and is in the ‘Countryside precinct’. The Tribunal examined the purpose and outcomes of the ‘Countryside precinct’ and compared them to the purpose and outcomes of the rural and rural-residential zones under the Queensland planning provisions. The Tribunal found that the ‘Countryside precinct’ is the nearest equivalent to rural land under the Queensland planning provisions, and therefore the land is zoned as rural. The Tribunal also considered the actual use of the property but found that it has no bearing on jurisdiction. The criterion is whether the land is zoned as rural.

The Tribunal found that the trees in this Application are situated on rural land and therefore excluded from the Tribunal’s jurisdiction. The Application is dismissed.

Orders