McNamara v Evans
[2012] QCAT 219
•30 May 2012
| CITATION: | McNamara v Evans and Anor [2012] QCAT 219 |
| PARTIES: | Leanne McNamara |
| v | |
| Peter Evans Karen Evans |
| APPLICATION NUMBER: | NDR020-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K O'Callaghan, Senior Member |
| DELIVERED ON: | 30 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Neighbourhood dispute – whether tree located on “rural land” Neighbourhood Disputes Resolution Act 2011 |
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
Leanne McNamara has applied to QCAT under the Neighbourhood Disputes Resolutions Act 2011 (NDR Act) seeking an order for the removal and or pruning of trees on her neighbours’ (Peter and Karen Evans – the Tree Keepers) property.
Legislation
The NDR Act established a statutory scheme which imposes responsibilities on tree owners for maintenance of trees on their property and allows neighbours whose land is affected by trees to seek relief in QCAT.
Section 42 of the NDR Act specifies which trees the legislation applies to and which trees are exempt.
Relevantly the Act does not apply to trees situation on “rural land.”[1]
[1] Section 42(3) NDR Act.
The Tree Keepers in their response submitted that the Tribunal had no jurisdiction as the trees in question were situated on rural land.
The Brisbane City Council being the relevant local authority applied “to appear in the proceeding.” They are entitled to do so as the trees were subject to a vegetation protection order and as such the carrying out of any work on the trees required the consent of the Brisbane City Council.[2] Submissions were sought from both parties and the Brisbane City Council as to whether the tree keepers land was “rural land” within the meaning of the NDR Act and therefore the trees were exempt from the operation of the Act.
[2] Section 64 NDR Act.
“Rural land” is defined in the NDR Act as meaning “rural land under the Land Valuation Act 2010.”[3]
[3] Schedule 2 NDR Act.
The Land Valuation Act 2010 (LVA) provides[4] that land is rural if “under section 10 of the LVA Act it is zoned rural and it has not under section 11 ceased to be zoned rural land.” Under section 10 of the LVA land is zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Sustainable Planning Act 2009.
[4] Section 9 LVA.
Submissions
The Brisbane City Council has advised in its submissions that the Brisbane City Council plan 2000 assigns a Rural Area designation to the Tree Keepers’ land and as such it is “rural land” for the purposes of the NDR Act and therefore not subject to the Act.
The Tree Keepers also submit that the land is classified as rural under the Brisbane City Council plan and as such the NDR Act has no application.
Leanne McNamara submits that QCAT does have jurisdiction and the land is not rural land because:
§The land is categorised as residential for the purposes of calculation of rates.
§The Tree Keepers have described the use of the land as “rural – residential” in a separate application to QCAT regarding a dividing fence dispute.
§The Queensland Government Rural Precinct Guidelines contain a map which shows that the Tree Keepers’ land is within “an urban footprint”.
§During proceedings involving this dispute before the Wynnum Magistrates Court the Magistrate indicated that QCAT was the appropriate forum to hear the dispute.
These facts however have no bearing on whether the land is rural for the purposes of the NDR Act. The only relevant criteria is whether the land is zoned rural under the Brisbane City Council planning scheme. It is.
The applicant in her submissions makes reference to section 11 of the Sustainable Planning Act 2009 inferring that the land may have ceased to be zoned rural land.
However there is no evidence as required by section 11, that there has been a preliminary approval under the Planning Act approving a material change of use. I assume the Brisbane City Council would have been aware if there had and would have made mention of that fact in their submission.
I find therefore that as the land is zoned rural under the Brisbane City Council planning scheme, the land is rural for the purposes of the NDR Act and QCAT has no jurisdiction to hear the application.
The application is accordingly dismissed.
The Tree Keepers sought an order for the costs they have incurred in responding to the application. Under section 100 of the QCAT Act parties are required to bear their own costs.
The Tribunal does have discretion under section 102 of the QCAT Act to award costs if it considers whether it is in the interests of justice to make that order.
The Appeal Tribunal has in previous decisions[5] found that under the QCAT Act the question that will usually arise in each case where costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100.
[5] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [2010] QCAT 334.
I do not consider from the material submitted that the circumstances of this matter overcome the contra indication against costs orders.
Accordingly I make no order as to costs.
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