McNamara v Evans

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

1. 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

1. 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.

2. Section 42 of the NDR Act specifies which trees the legislation applies to and which trees are exempt.

3. Relevantly the Act does not apply to trees situation on “rural land.”[1]

   [1]        Section 42(3) NDR Act.

4. The Tree Keepers in their response submitted that the Tribunal had no jurisdiction as the trees in question were situated on rural land.

5. 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.

6. “Rural land” is defined in the NDR Act as meaning “rural land under the Land Valuation Act 2010.”[3]

   [3]        Schedule 2 NDR Act.

7. 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

1. 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.

2. 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…