Guardrite Security and Traffic management Qld Pty Ltd v Gold Coast City Council

[2014] QCAT 199

CITATION: Guardrite Security and Traffic management Qld Pty Ltd v Gold Coast City Council [2014] QCAT 199

PARTIES:	Guardrite Security and Traffic management Qld Pty Ltd (Applicant)
v
Gold Coast City Council (Respondent)

APPLICATION NUMBER: NDR206-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 7 May 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for a tree dispute is dismissed.

CATCHWORDS:

TREE DISPUTE – application to dismiss -whether tree located in public park – lack of jurisdiction

Neighbourhood dispute (Dividing Fences and Trees) Act 2011 s 42

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

1. Guardrite Security owns premises at 38 Dominion Road, Ashmore which adjoins land owned by the Gold Coast City Council.  There are a number of trees growing on the council owned land which Guardrite Security alleges have caused damage to its property.  Guardrite Security has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 requesting that the trees be removed.

2. The Council has made an interim application to the Tribunal requesting that the application be dismissed[1] due to a lack of jurisdiction by the Tribunal.  This is on the ground that the land in question is owned by a local government and used as a public park.  Chapter 3 Trees of the ND Act does not apply to trees situated on such land[2]. The Council states that the land is known as Ashmore Community Park. The park is said to have the following facilities barbeques, picnic shelter, sports fields, and playground equipments.

   [1]Queensland Civil and Administrative Tribunal Act 2009 s 47.

   [2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 42(4)(c).

3. Guardrite Security submit that the trees in question are situated on a steep sloped parcel of land located between their property and a Council owned car park and that it is not a park or a public park or any kind of park as described by the Council.

4. The term public park is not defined in the ND Act. Public park infrastructure is noted to include playground equipment, playing fields, courts and picnic facilities. These are the types of facilities provided at Ashmore Community Park. One of the dictionary definitions of the word park is – a piece of open land in a town with public amenities[3].

   [3]Collins Concise English Dictionary Australian Edition 1982 at 822.

5. The Tribunal is satisfied that the Ashmore Community Park is a public park or the purposes of the ND Act as it has the facilities expected in a park and is open to the public. Guardrite Security has submitted that the trees are not located on park land.

6. Council have stated that the land the tree is located on forms part of the land on which Ashmore Community Park is located. It would be expected that the park would have provision for parking by its users and the maps provided by the Council show that the park land is the land which adjoins that of Guardrite Security. The Tribunal is satisfied that the land on which the trees are located forms part of the land described as Ashmore Community Park.

7. In that case Chapter 3 of the ND Act does not apply in accordance with s 42(3)(c) of the ND Act. As the Tribunal does not have jurisdiction to consider the application it is misconceived and or lacks substance and is dismissed[4].

   [4]Queensland Civil and Administrative Tribunal Act 2009 s 47.