Wishart v Korsinczky

[2024] QCATA 115

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wishart v Korsinczky [2024] QCATA 115

PARTIES:

PATSIE WISHART
(applicant/appellant)

v

MICHAEL KORSINCZKY

(respondent)

APPLICATION NO/S:

APL319-23

ORIGINATING APPLICATION NO/S:

NDR157-23

MATTER TYPE:

Appeals

DELIVERED ON:

21 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1.   The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where there is a neighbourhood dispute – where the dispute involves a tree – where application for a tree dispute dismissed by Tribunal at first instance on basis of lack of jurisdiction – whether adjoining land – whether land affected by a tree – whether Tribunal has jurisdiction  

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 15, s 46, s 47, s 61, s 66, s 70, Sch

APPEARANCES & REPRESENTATION:

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

1. The question on this appeal is whether the Tribunal has jurisdiction to determine the dispute between the parties in relation to a tree situated on the appellant’s land. In the Tribunal at first instance, it was held that the Tribunal does not have jurisdiction because the appellant’s land is not ‘affected by a tree’ within the meaning of s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).

2. Section 61 of the Act provides:

   QCAT has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

3. As to when land is ‘affected by a tree’, s 46 of the Act provides:

   Land is affected by a tree at a particular time if—

   (a)   any of the following applies—

   (i) branches from the tree overhang the land;

   (ii) the tree has caused, is causing, or is likely within the next 12 months to cause—

   (A) serious injury to a person on the land; or

   (B)   serious damage to the land or any property on the land; or

   (C)  substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

   (b)   the land—

   (i) adjoins the land on which the tree is situated; or

   (ii) would adjoin the land on which the tree is situated if it were not separated by a road.

4. For present purposes, the operation of s 46(b)(i) is in issue. That sub-section provides that land is affected by a tree if it adjoins the land on which the tree is situated. It is not in dispute that the tree in question is situated on the appellant’s land.

5. In the present case, the land of the respondent does adjoin the appellant’s land and, accordingly, the respondent’s land might be affected by the tree on the appellant’s land. However, no complaint has been brought by the respondent in relation to the tree and there is no suggestion that his land is affected by the tree.

6. Rather the submission of the appellant is that her land is land affected by the tree for the purposes of the Act, notwithstanding that the tree is on her land. In other words, notwithstanding that both the tree-keeper and the owner of the land that is said to be affected by the tree are one and the same person.

7. The underlying issue is that the appellant says that the actions of the respondent in removing the dividing fence and retaining wall between the two properties have impacted the tree to the extent that it now has to be removed for safety reasons. It is accepted by the appellant that the trunk of the tree is on her side of the boundary, though it is said that the roots extend beyond the boundary and many of those roots were severed by the respondent in the process of removing the dividing fence and retaining wall. In the initial application to the Tribunal, the appellant sought compensation.

8. The respondent has filed submissions in support of the decision of the Tribunal at first instance and states that photographic evidence indicates that the tree roots had not been severed. The latter is of no particular relevance in the present matter. The question is on whose land is the tree situated. Section 46(b) of the Act provides that land might be affected by a tree if the land adjoins the land on which the tree is ‘situated’. Section 47(1) then provides:

   A tree is situated on land if the base of the base of the tree trunk is, or was previously, situated wholly or mainly on the land.

9. As noted, it is not in dispute that the tree is situated on the appellant’s land.

10. The appellant submits that the Tribunal has jurisdiction by virtue of Part 5 Division 4 of the Act, referring in particular to s 70 of the Act, which provides:

    (1) This division states matters for QCAT to consider in deciding an application for an order under section 66.

    (2)     This division does not limit the matters QCAT may consider.

11. However, s 70 simply states the matters for the Tribunal to consider in deciding upon an order under s 66 of the Act. Section 66 sets out the orders that the Tribunal may make in relation to a tree affecting a neighbour’s land. Neither s 66 nor s 70 expand the jurisdiction of the Tribunal in relation to the disputes that the Tribunal may determine in relation to trees. In other words, it remains that the adjoining land must be affected by a tree within the meaning of s 46 of the Act.

12. Land that ‘adjoins the land on which the tree is situated’ must, by its terms, refer to land other than the land on which the tree is situated. It is that adjoining land that must be affected by a tree. The term ‘adjoining land’ is defined in the Act for the purposes of Chapter 2 only, which deals with dividing fences: see definition at s 15 and the Schedule of the Act. The Cambridge Dictionary defines ‘adjoin’ as ‘to be very near, next to, or touching’.

13. While the appellant might have an issue with the respondent in relation to the removal of the fence and dividing wall and any alleged severing of roots that have impacted the tree, that issue cannot be determined by the Tribunal within the ambit of Chapter 3 of the Act. The present dispute is not within the jurisdiction of the Tribunal.

14. Accordingly, the appeal is dismissed.