Smith v Attawar

QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:

Smith v Attawar [2018] QCAT 190

PARTIES:

CARMELE ELIZABETH SMITH
(applicant)

v

CHET ATTAWAR

(respondent)

APPLICATION NO/S:

NDR227-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

16 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

1.   1.   The proper respondent is Chet Attawar and the record is amended accordingly.

2.   2.   The application for a tree dispute filed 29 October 2019 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – disputes between neighbours – whether land is zoned rural land for the purposes of s 42(3) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether the Tribunal has jurisdiction to hear and decide the dispute – whether the application should be dismissed

Land Valuation Act 2010 (Qld), s 10
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(3)(a), s 48, s 49, s 61
Planning Act 2016 (Qld), schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor [2011] QSC 212

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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. [1]           Carmele Elizabeth Smith claims that a number of trees situated on adjoining land owned by Chet Attawar affect her land.

2. [2]           Ms Smith applied to the Tribunal for an order that the trees alleged to be affecting her land be removed and that Mr Attawar pay for the cost of removal of the trees. In the application for a tree dispute filed in the Tribunal, Ms Smith identifies Mr Attawar and another person as the named respondents.

3. [3]           Mr Attawar seeks an order that the application for a tree dispute filed by Ms Smith be dismissed. Mr Attawar says that the trees, the subject of the dispute, are located on his land that is classified or zoned in its entirety as rural land. Mr Attawar says that the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) does not apply to trees situated on rural land. Further, Mr Attawar says that he is the registered owner of the land and is therefore the proper respondent who should be named in the proceedings.

4. [4]           In this matter a member of the Tribunal directed that a preliminary issue be determined on the papers, now set out below:

   a.(a)  Whether the Tribunal has jurisdiction in the dispute, having regard to the application for miscellaneous matters filed 12 February 2019 concerning whether the trees are on rural land, whether the parcel of land in question is more than four hectares, and whether the trees are planted or maintained for commercial purposes as a condition of a development approval;

   b.(b)  Consequently, whether the application for a tree dispute is to be dismissed.

c.[5]           The parties…