Pearson v Noosa Shire Council

[2015] QCAT 48

CITATION: Pearson v Noosa Shire Council [2015] QCAT 48

PARTIES:	Allan John Pearson and Lynette Joy Pearson (Applicant)
v
Noosa Shire Council (Respondent)

APPLICATION NUMBER: NDR188-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 16 February 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The directions hearing listed at 9.30am on 26 February 2015 is vacated.

2.    The application is dismissed.

CATCHWORDS:

TREE DISPUTE – Whether Tribunal has jurisdiction in respect of council road reserve – if Tribunal does not have jurisdiction then the application must be dismissed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42, 61
Queensland Civil and Administrative Tribunal Act 2009 s 47

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

1. Mr and Mrs Pearson reside next to an area of land controlled by the Council on which are situated several trees. The Pearson’s allege that the trees pose a high risk in storm season and cause a build up of debris on their roof. They have applied to the Tribunal for an order that the Council remove the trees.[1]

   [1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 62.

2. In their application, Mr and Mrs Pearson described the land the trees are on as a reserve other than a reserve for community purposes, “unused road reserve”. The Council have made a miscellaneous application to dismiss the Pearson’s application on the basis that the trees are located within the road reserve Noosa River esplanade (Road 156) owned by the State of Queensland-Reserve for Road.

3. The Tribunal has jurisdiction[2] to hear applications about trees subject to the trees being on land to which the provisions of the Act apply which includes a reserve, other than a reserve for community purposes under the Land Act 1994[3].

   [2]Ibid s 61.

   [3]Ibid s 42(1)(e).

4. Community purposes is defined in Schedule 1 of the Land Act 1994 and includes roads. The land in this case is acknowledged by the Pearson’s in their application as an unused road reserve.

5. The Tribunal is satisfied that the land in question is land held by the Council under the Land Act 1994 for community purposes and that as a result the Tribunal does not have jurisdiction to hear the application. Where the Tribunal does not have jurisdiction to hear an application this is grounds to dismiss the application under s 47 of the Queensland Civil and Administrative Tribunal Act 2009[4] on the basis that the application lacks substance.

   [4]Izard v Cairns Regional Council

6. The orders of the Tribunal are that:-

   1.    the directions hearings listed at 9:30am on 26 February 2015 is vacated

   2.    the application is dismissed.