McGahey v Judd
[2014] QCAT 407
| CITATION: | McGahey v Judd [2014] QCAT 407 |
| PARTIES: | Susan McGahey (Applicant) |
| v | |
| Richard Judd (Respondent) |
| APPLICATION NUMBER: | NDR062-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 21 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | TREE DISPUTE – where respondents submits want of jurisdiction as rural land – dismissal for want of jurisdiction Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), ss 42(3), 62 Izard v Cairns Regional Council [2010] QCAT 410 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mrs McGahey is the owner of land at 267 Mossybank Road, Eudlo and is the neighbour of Mr Judd who owns lands on which trees are situated at 202 Perrins Road, Eudlo.
Ms McGahey has made application to the Tribunal for orders in respect of the trees on the land at 202 Perrins Road, Eudlo.
Mr Judd has made an application for miscellaneous matters to strike out the primary application on the basis that the land is classified as rural land and therefore the Tribunal does not have jurisdiction to hear the matter.
In regard to jurisdiction, Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’) deals with trees and in accordance with s 42(3)(a) of the NDR Act the Chapter does not apply to trees situated on rural land.
Mr Judd has provided evidence to the Tribunal in the form of a rates notice, a copy of part of the plan of survey for the land and an email from the Sunshine Coast Council which confirms that the land at 202 Perrins Road, Eudlo is defined under the 2014 Sunshine Coast Planning Scheme which was adopted on 21 May 2014 as being rural zoning.
Mrs McGahey has not provided any submissions in reply to Mr Judd’s submissions. The Tribunal accepts that the land in question is zoned as rural land.
The Tribunal’s jurisdiction to hear tree dispute applications is contained in s 62 of the NDR Act which is part of Chapter 3 and in accordance with s 42(3)(a) Chapter 3 does not apply to rural land. The Tribunal therefore does not have jurisdiction to hear this application.
Where the Tribunal does not have jurisdiction the Tribunal may dismiss the proceedings in accordance with s 47(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis that the application is lacking in substance in accordance with s 47(1)(b) of the Act.[1]
[1]Izard v Cairns Regional Council [2010] QCAT 410.
The order of the Tribunal is that the application is dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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