Schmidt & Duarte v Freeme

Schmidt and Duarte sought a declaration from the Queensland Civil and Administrative Tribunal (QCAT) that a tree located on their property was not a dividing fence, and therefore not subject to the provisions of Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). Freeme opposed the application, arguing that the tree was a dividing fence. The primary dispute was whether the tree was planted or maintained as a condition of a development approval, and whether Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applied. The QCAT had to decide if the tree was subject to a condition of a development approval, and if not, whether Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applied. The Court considered the evidence provided by both parties, including the lack of an approved landscaping plan or written condition of approval requiring the retention of the tree. The Court concluded that there was no evidence that the tree was planted or maintained as a condition of a development approval, and therefore the tree was not subject to a condition of a development approval. The Court found that since the tree was not subject to a condition of a development approval, Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) did not apply. The Tribunal made a declaration that the subject tree is not the subject of a condition of a development approval.