Watson v Barua

[2013] QCAT 465

CITATION: Watson v Barua [2013] QCAT 465

PARTIES:	Mr Reuben Phillip Watson (Applicant)
V
Mr Nilotpal Barua (Respondent)

APPLICATION NUMBER: NDR113-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: 3 September 2013

HEARD AT: On the papers

DECISION OF: Jim Allen, Member

DELIVERED ON: 3 September 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Mr Nilotpal Barua is the proper respondent in respect of this application.

CATCHWORDS:

TREE DISPUTE - tree located on land subject to easement - question of whether respondent is tree keeper

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48
Land Titles Act 1994 s 82

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Watson has filed an application for a tree dispute naming Mr Barua as the respondent, Tree-keeper in respect of trees located at 4 Government Road, Labrador described as lot 12 on registered plan 87291. Mr Barua in his response to the application states that the tree is on an easement adjacent to his land and that as the tree is not on his land the application should be dismissed

2. The Tribunal gave each party an opportunity to make submissions as to whether Mr Barua is the Tree-keeper of the tree the subject of the application and that question is now before the Tribunal for determination.

3. The term Tree-keeper is defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 as the registered owner of the lot under the Act if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994[1]. In this case the current title search for lot 12 on registered plan 87291 did not disclose and easement but the registered plan showed the land in question as being A “EMT”. For this reason Mr Barua considered that the land was not part of his lot.

   [1]        Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48.

4. Mr Watson has provided the Tribunal with a copy of the original certificate for lot 12 of registered plan 87291. This certificate of title shows the lot as including the area which is covered by EMT A. A copy of plan 97291 is also included which states that it includes “survey of subdivisions 1 to 26 (& resub A (EMT) of Sub 12). There is a partial copy of a for sale sign which bears the alleged shape of lot 12 and on which in handwriting is marked the words “My property” with an X.

5. Mr Barua in an affidavit he provided states that Mr Watson has provided him with a copy of certificate of title volume 3327 folio 82 suggesting that the thin strip of land (referred to as “easement” is encompassed by the land owned. He notes that the dimensions of the property indicated in registered plan no. 87291 differ from the dimensions of the land indicated in certificate of title volume 3327 folio 82.

6. If the land which is described as A “EMT” in plan 87291 is taken with the land described as lot 12 the resulting land has the same dimensions as the land set out on the certificate of title volume 3327 folio 82. This accords with the law in regard to the creation of an easement which specifies that an easement over a lot may only be created by registering an instrument of easement[2]. The instrument must state the nature of the easement and its terms and the land to be benefitted and burdened, by the easement[3].

   [2]        Land Titles Act 1994 s 82(1).

   [3]        Land Titles Act 1994 s 82(2).

7. The significant phrase is “easement over a lot” in that the easement is not separately owned to the lot but the owner of the lot is subject to the burden of the easement. In this case A “EMT” is drawn on part of the lot described as lot 12 in the plan drawn on the certificate of title of which Mr Barua is currently the owner of. From a perusal of the title to the land there is no easement registered over lot 12. It is clear though that there provision was made in registered plan 87291 for such an easement.

8. The Tribunal is satisfied that the tree which is subject to the dispute is located on the land described as lot 12 on registered plan 87291. The Tribunal orders that as Mr Barua is the owner of that lot he is the Tree-keeper and the prosper respondent.