Grant v Hine; Grant v Runge - [2016] QCAT 227

CITATION:

Grant v Hine; Grant v Runge [2016] QCAT 227

PARTIES:	Michael Grant Karen Grant (Applicants)
v
Peter Hine Jillian Hine (Respondents)
PARTIES:	Michael Grant Karen Grant (Applicants)
v
Steven Runge Lisa Runge (Respondents)

APPLICATION NUMBER:

NDR055-16; NDR056-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

29 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

NDR055-16

1. The application for a tree dispute is dismissed.

NDR056-16

1. The application for a tree dispute is dismissed.

CATCHWORDS:

JURISDICTION OF TRIBUNAL – tree dispute – whether trees situated on rural land – whether trees excluded from the operation of Chapter 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – operation of Land Valuation Act 2010 – where trees situated on land subject to planning scheme under Sustainable Planning Act 2009

Land Valuation Act 2010 (Qld), s 9, s 10, s 11
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42, Chapter 3, Schedule
Sustainable Planning Act 2009 (Qld)

Easterbrook v Janalan Pty Ltd [2015] QCAT 81

APPEARANCES:

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

What is this application about?

Michael and Karen Grant bought a house at Glasshouse Mountains in 2009. Mr and Mrs Grant live at lot 3 (the Grants’ land). Mr and Mrs Hine reside at lot 2 (the Hines’ land). Lot 2 adjoins lot 3. Mr Runge resides at lot 4 (Mr Runge’s land). Lot 4 also adjoins lot 3.
Mr and Mrs Grant have filed two applications in the tribunal relating to trees situated on the Hines’ land and on Mr Runge’s land. They say that the trees have caused serious damage to their land or property on their land.
Mr and Mrs Hine and Mr Runge have each filed applications seeking to dismiss the applications by the Grants. They say their land is zoned rural land and that the Tribunal does not have jurisdiction to make any orders in respect of the trees.
The applications to dismiss will be dealt with together as the issues for determination are common to both proceedings.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA)

Chapter 3 of the NDA applies to trees. The NDA applies to trees situated on freehold land[1] however the Act does not apply to trees situated on rural land.[2] Rural land is defined.[3] It means rural land under the Land Valuation Act 2010 (Qld) (LVA). Land is rural land if, under s 10 LVA, it is zoned rural land and it has not, under s 11 LVA, ceased to be zoned rural land; or under s 13 or 14 LVA, it has been declared to be rural land.[4] Land is also zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Sustainable Planning Act

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: [2016] QCAT 227
Decision Date: 29 June 2016

CaseChat Overview and Summary

The case before the Queensland Civil and Administrative Tribunal (QCAT) involved two separate applications for tree dispute resolution, brought by the applicant, Mr. Grant, against the respondents, Ms. Hine and Mr. Runge. The disputes arose from alleged interference with trees situated on Mr. Grant's rural properties, with each respondent owning adjacent land. The primary issue was whether the trees in question were subject to the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), specifically Chapter 3 concerning trees. The crux of the matter lay in determining whether the trees were situated on rural land, which would exclude them from the operation of the Act.

The legal issues before the Tribunal were whether the trees were located on rural land as defined by the Sustainable Planning Act 2009 (Qld) and, if so, whether this exclusion applied to the trees' status under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Additionally, the Tribunal had to consider the applicability of the Land Valuation Act 2010 (Qld) and the relevance of the planning scheme under the Sustainable Planning Act 2009 in determining the jurisdictional scope of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

In reaching its decision, the Tribunal found that the trees in question were situated on rural land, as defined by the Sustainable Planning Act 2009. Consequently, the trees were excluded from the operation of Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The Tribunal also noted that the Land Valuation Act 2010 did not provide a basis for the resolution of the disputes concerning the trees. The Tribunal held that since the trees were situated on rural land, they did not fall within the scope of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, thus dismissing both applications for tree dispute resolution.

Orders

Orders of the court

NDR055-16

1. The application for a tree dispute is dismissed.

NDR056-16

1. The application for a tree dispute is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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