Eddes v Bourke [2018] QCAT 69

CITATION: Eddes v Bourke & Bourke [2018] QCAT 69 PARTIES: Jeremy Eddes (Applicant) v Patrick Andrew Harley Bourke Peta Nicole Bourke (Respondents) APPLICATION NUMBER: NDR004-18 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 8 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The proceeding is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES – where application for a tree dispute filed – where it is alleged tree poses a serious risk of injury – where applicant seeks tree on respondents’ land to be removed – where no common boundary between applicant’s land and respondents’ land – whether applicant’s land ‘adjoins’ respondents’ land – requirement for physical contiguity for land to ‘adjoin’ – whether applicant a ‘neighbour’ for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether the Tribunal has jurisdiction to hear and determine application 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Eddes complains that a tree situated on Mr and Mrs Bourke’s land affects his land. Mr Eddes says that the tree has caused serious injury to persons on his land and that the branches of the tree overhang his land and pose a risk of serious injury to persons on his land. Mr Eddes also complains of the leaf litter created by the tree. Mr Eddes wants the tree removed. [2] In his Application for a tree dispute, Mr Eddes included a diagram of the location of the tree. The diagram indicated that Mr Eddes’ land and Mr and Mrs Bourke’s land may not adjoin. The Tribunal made directions for the parties to, among other things, file submissions addressing the issue of whether Mr Eddes’ land adjoins that of Mr and Mrs Bourke. [3] Mr Eddes says that his land shares the ‘same rear boundary line’ as the Bourkes’ land. He says that the southernmost side boundary of his land and the northern most side boundary of the Bourkes’ land are adjacent to each other in relation to where the respective side boundaries meet the common rear boundary line. Mr Eddes concedes that he is unsure of the definition or interpretation of what is considered adjoining in terms of proximity and distance.1 [4] In their Response, Mr and Mrs Bourke say that their land does not adjoin Mr Eddes’ land.2 The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) [5] The ND Act applies to trees situated on land recorded in the freehold land register.3 A ‘tree’ is defined.4 A ‘tree keeper’ includes the registered owner of freehold land on which a tree is situated.5 A ‘neighbour’ includes the registered owner of freehold land which is affected by a tree.6 [6] Land is ‘affected by a tree’ if both of the following conditions are met: any of the following apply: branches from the tree overhang the land;7 the tree has caused, or is likely within the next 12 months to cause: serious injury to a person on the land or serious damage to the land or property on the land;8 or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.9 1 Applicant’s submissions filed 19 January 2018. 2 Response filed 2 February 2018. 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1)(a). 4 Ibid s 45. 5 Ibid s 48(1)(a). 6 Ibid s 49(1)(a)(i). 7 Ibid s 46(a)(i). 8 Ibid s 46(a)(ii)(A)-(B). 9 Ibid s 46(a)(ii)(C). -- 2 of 4 -- 3 the land affected by a tree adjoins the land on which the tree is situated10 or would adjoin the land on which the tree is situated if it were not separated by a road.11 [7] A neighbour may apply to the Tribunal for an order in relation to a tree.12 On application to the Tribunal, the Tribunal may make orders it considers appropriate in relation to a tree13 after giving due consideration to a range of specified matters.14 The Tribunal 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 the Tribunal, land is affected by the tree.15 Is Mr Eddes a neighbour? [8] Mr Eddes is entitled to bring an application for a tree dispute in respect of the tree on the Bourkes’ land if he is a ‘neighbour’ for the purposes of the ND Act. As I have observed, a ‘neighbour’ must be an owner or occupier of land affected by a tree or the body corporate of scheme land affected by a tree. In order to establish that he is a neighbour, Mr Eddes must first establish that his land is affected by the tree. [9] Mr Eddes’ land can only be affected by the tree on the Bourkes’ land if, in addition to Mr Eddes satisfying the requirement set out at s 46(a) of the ND Act, the two properties adjoin or would adjoin if the properties were not separated by a road. [10] The word ‘adjoin’ is not defined for the purposes of Chapter 3 of the ND Act. In accordance with the usual principles of statutory interpretation the word should be given its ordinary meaning: ‘be next to, and joined with’.16 For land to ‘adjoin’ for the purposes of the Act is must be either physically contiguous or would, if not separated by a road, be physically contiguous. [11] In its review of the ND Act, the Queensland Law Reform Commission observed: The Act is intended to resolve disputes between neighbours as adjoining owners, but not disputes between non-adjoining landowners or disputes about trees in general.17 [12] If parliament had intended the ND Act to create rights and obligations upon persons other than neighbours whose land is physically contiguous it could have expressly said so. It did not. Rather, parliament has expressly stated that the ND Act deals only with disputes between adjoining land owners. 10 Ibid s 46(b)(i). 11 Ibid s 46(b)(ii). 12 Ibid s 62(1). 13 Ibid s 66. 14 Ibid s 73. 15 Ibid s 61. 16 Angus Stevenson (ed), Oxford English Dictionary (Oxford University Press, 3rd ed, 2010). 17 Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), at [3.205]. -- 3 of 4 -- 4 Further support for the conclusion that ‘adjoin’ requires physical contiguity between parcels of land is found in s 46(b)(ii). The only exception to the requirement for physical contiguity is the presence of a road preventing parcels of land from adjoining. [13] Mr Eddes’ application contains a diagram of the tree and the boundaries of Mr Eddes’ property and the Bourkes’ property. There is no common boundary between the respective parcels of land. [14] The registered plan identifying the parties’ respective parcels of land is before the Tribunal.18 There is no common boundary between lot 10 (Mr Eddes’ land) and lot 39 (the Bourkes’ land). There is no road separating the two parcels of land. [15] Mr Eddes’ land does not adjoin the Bourkes’ land. It follows that Mr Eddes’ land is not affected by the tree on the Bourkes’ land. Mr Eddes can only be a neighbour for the purposes of the ND Act if his land is affected by a tree. Accordingly Mr Eddes is not a neighbour for the purposes of the ND Act. Mr Eddes may only apply to the Tribunal in respect of a dispute about a tree if he is a neighbour whose land is affected by the tree.19 As Mr Eddes is not a neighbour, he is not entitled to apply to the Tribunal for an order under s 66 of the QCAT Act. Mr Eddes has no standing to bring the proceeding. Even if Mr Eddes had standing to bring the application, as his land is not affected by the tree as required by s 46 of the Act the Tribunal cannot make orders in relation to the tree in accordance with s 66(2) of the Act. [16] The Tribunal may strike out or dismiss a proceeding which the Tribunal considers is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.20 [17] The proceeding by Mr Eddes is misconceived and lacking in substance. The appropriate order is that the proceeding is dismissed. 18 Registered plan 176940. 19 Ibid, s 62(1). 20 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 47(2)(a). -- 4 of 4 --