Key v Harrison - [2016] QCAT 91

CITATION:

Key v Harrison [2016] QCAT 91

PARTIES:	Brendan Key Renee Key (Applicants)
v
Mark Harrison Mandy Harrison (Respondents)

APPLICATION NUMBER:

NDR178-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

12 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

TREE DISPUTE – whether trees situated on rural land – whether zoning of land on which trees situated the nearest equivalent of rural land under the Queensland planning provisions - whether zoning of land on which trees situated the nearest equivalent of rural residential land under the Queensland planning provisions

Integrated Planning Act 1997 (Qld) (repealed)
Land Valuation Act 2010 (Qld), s 9, s 10
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42, s 46, s 48, s 52, s 62, Schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
Sustainable Planning Act 2009 (Qld), s 10, s 54, s 778

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

Mr and Mrs Key live next door to Mr and Mrs Harrison. They say that their land is affected by three trees situated on the Harrison’s property (‘the trees’). Mr and Mrs Key have applied to the Tribunal for orders in relation to the trees.

The Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld) (‘the Act’)

A neighbour, whose land is affected by a tree, may apply to the Tribunal for orders in relation to the tree.[1] The Act sets out the circumstances in which land is affected by a tree.[2] The Act also sets out who is a tree keeper.[3] A tree is keeper has certain responsibilities for trees on their land.[4]
[1]The Act, s 62.
[2]Ibid, s 46.
[3]Ibid, s 48.
[4]Ibid, s 52.
Trees in relation to which the Act applies are identified.[5] The Act also identifies trees to which the Act does not apply.[6] The Act does not apply to trees situated on rural land.[7] Rural land means rural land under the Land Valuation Act 2010 (‘LVA’).[8]
[5]Ibid, s 42(1).
[6]Ibid, s 42(3), s 42(4) and s 42(5).
[7]Ibid, s 42(3)(a).
[8]Ibid, Schedule - Dictionary
Under the LVA, land is rural land if: under section 10, it is zoned rural land and it has not, under section 11, ceased to be zoned rural land; or under section 13 or 14, it has been declared to be rural land.[9]
[9]LVA, s 9.
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).[10]
[10]Ibid, s 10(1).
An area of land is also zoned rural land if, under a continued IPA planning scheme, more than half the land is: zoned as rural land; or is in…

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 91
Decision Date: 12 April 2016

CaseChat Overview and Summary

The case of Key v Harrison involved a dispute over the removal of trees on rural land. The primary concern was whether the trees in question were situated on land that was classified as rural under Queensland planning provisions, or if it was more accurately categorised as rural residential. The matter was brought before the Queensland Land Court. The legal issues that the court needed to decide were whether the land where the trees were located was indeed rural or if it should be considered rural residential land under the relevant planning laws. Additionally, the court had to determine if the zoning of the land where the trees were situated matched the nearest equivalent of rural land or rural residential land under the Queensland planning provisions.

The court carefully examined the zoning of the land and the definitions provided under the Queensland planning legislation. It assessed whether the land in question met the criteria for being classified as rural or rural residential. The court considered the zoning of the land, the surrounding environment, and the intended use of the land. Ultimately, the court found that the land where the trees were situated was not accurately classified as rural but rather as rural residential land. This classification had implications for the types of activities that could be undertaken on the land, including the removal of trees. Based on this finding, the application to remove the trees was dismissed.

Orders

Orders of the court

1. The application 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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