Sewell v PC Properties Pty Ltd
[2014] QCAT 381
•4 August 2014
| CITATION: | Sewell v PC Properties Pty Ltd [2014] QCAT 381 |
| PARTIES: | Lyle Sewell (Applicant) |
| v | |
| PC Properties Pty Ltd (Respondent) |
| APPLICATION NUMBER: | NDR248-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 4 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a tree dispute filed on 19 December 2013 and the amended application for a tree dispute filed on 3 March 2014 are dismissed. 2. Lyle Sewell is to be refunded the amount of $400.00 he paid towards the cost of the tree assessment. |
| CATCHWORDS: | TREE DISPUTE – JURISDICTION – whether trees situated on a parcel of land that is more than 4 hectares Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1), s 42(3)(b) |
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
Mr Sewell has made an application to the Tribunal concerning trees situated on land at 51 Lawnton Pocket Road, Lawnton that is owned by PC Properties Pty Ltd.
PC Properties Pty Ltd has made an application to the Tribunal to dismiss the primary application in accordance with s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
PC Properties Pty Ltd has provided a copy of the annual land valuation notice for the property at 51 Lawnton Pocket Road, Lawnton that shows the area of the property as 7.279 hectares.
Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) deals with tree disputes. Section 42 states that subject to subsections (2) to (5) this chapter applies to trees on the following land, relevantly here land recorded in the freehold land register. The land here is recorded in the freehold land register so without there being any other considerations the Chapter concerning trees would apply.
In accordance with s 42(3)(b) though Chapter 3 does not apply to trees situation on a parcel of land that is more than 4 hectares. Clearly, the trees here are situated on land with an area greater than 4 hectares it being situated on land of an area of 7.279 hectares.
Where the Tribunal does not have jurisdiction to hear an application that is a ground for dismissal of the application in accordance with the decision in Fleri v Commissioner of State Revenue.[1]
[1][2012] QCAT 135.
The Tribunal considers that the proceeding in this case is lacking in substance due to lack of jurisdiction in accordance with s 47(1) of the QCAT Act. The Tribunal has discretion to order that the proceeding be dismissed in accordance with s 47(2) of the QCAT Act where it is lacking in substance. Mr Sewell has indicated that he accepts that the application should be dismissed.
The Tribunal notes that Mr Sewell has paid an amount of $400 towards the cost of a tree assessor being appointed by the Tribunal and those monies will be refunded to him.
The order of the Tribunal is:
1. The application for a tree dispute filed on 19 December 2013 and the amended application for a tree dispute filed on 3 March 2014 are dismissed.
2. Lyle Sewell is to be refunded the amount of $400.00 he paid towards the cost of the tree assessment.
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