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 54Capo 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
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.
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]
[1]Directions made 1 February 2019.
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.
The parties have filed submissions and the preliminary issue falls for determination.
Is it appropriate to determine the preliminary issue?
I will address whether, and in what circumstances, it is appropriate for a preliminary issue to be addressed before a substantive hearing.
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…
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- Case
- [2019] QCAT 153
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the land was zoned rural under the BSPS, whether the Neighbourhood Disputes Act applied to the trees, and whether the Tribunal had jurisdiction to hear and decide the dispute. The court considered the relevant legislation, including the Local Government Act 2009 (Qld) (LGA), the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), and the Draft Scenic Rim Planning Scheme. The court also considered the Explanatory Notes to the Bill, which stated that the LGA applies the site value methodology to non-urban land and the unimproved value methodology to rural land. The court noted that the Draft Scheme was not yet in effect.
The court found that the trees were situated on rural land and that the Neighbourhood Disputes Act did not apply to the trees. The court also found that the Tribunal did not have jurisdiction to hear and decide the dispute. The court declared that the trees were situated on rural land and dismissed the proceeding. The court's decision was based on the relevant legislation and the evidence presented in the case. The court noted that Ms Crosswell's arguments were based on the Draft Scenic Rim Planning Scheme, which was not yet in effect. The court also noted that the Neighbourhood Disputes Act did not apply to the trees because the land was zoned rural. The court found that the Tribunal did not have jurisdiction to hear and decide the dispute because the Neighbourhood Disputes Act did not apply to the trees.
The final orders of the court were that the trees were situated on rural land and the proceeding was dismissed. The court's decision was based on the relevant legislation and the evidence presented in the case. The court noted that the Draft Scenic Rim Planning Scheme was not yet in effect and that the Neighbourhood Disputes Act did not apply to the trees because the land was zoned rural. The court also found that the Tribunal did not have jurisdiction to hear and decide the dispute. The orders of the court were that the trees were situated on rural land and the proceeding was dismissed.
Orders
Orders of the court
1. It is declared that the trees, the subject of the proceedings, are situated on rural land.
2. The proceeding is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 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. Section 10 of the LVA was amended in 2016.[18] The section, prior to amendment, provided:[18]Planning (Consequential) and Other Legislation Amendment Act 2016 (Qld), s 302.10 Zoned rural land(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.(2)Also, an area of land is zoned rural land if, under a continued IPA planning scheme, more than half the land is—(a)zoned as rural land; or(b)in a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions.(3)To remove any doubt, for this section it is declared that the following land is not zoned as rural land—(a)land zoned under a Planning Act scheme as rural–residential;(b)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.(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.(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 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] [19]Planning Act, s 284A. Subsequent to its amendment s 10 of the LVA provides:10 Zoned rural land (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. (2)Land zoned as rural-residential land, however called, under a planning scheme is not zoned as rural land.