Dennis v Kyle Grimshaw-Jones as personal representative of the estate of Neone Joy Grimshaw-Jones (deceased) [2016] QCAT 68

CITATION: Dennis v Kyle Grimshaw-Jones as personal representative of the estate of Neone Joy Grimshaw-Jones (deceased) [2016] QCAT 68 PARTIES: Susan Dennis (Applicant) v Kyle Grimshaw-Jones as personal representative of the estate of Neone Joy Grimshaw-Jones (deceased) (Respondent) APPLICATION NUMBER: NDR028-16 MATTER TYPE: Other civil dispute matters HEARING DATE: 14 April 2016 HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 22 April 2016 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL DIRECTS THAT: 1. The correct Respondent is Kyle Grimshaw-Jones as personal representative of the estate of Neone Joy Grimshaw-Jones (deceased). THE DECISION OF THE TRIBUNAL IS, BY CONSENT, THAT: 1. The application is dismissed. CATCHWORDS: TREE DISPUTE – trees situated on rural land – jurisdiction of Tribunal – consent order dismissing application Land Valuation Act 2010 (Qld) Sustainable Planning Act 2009 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42, Schedule Easterbrook v Janalan Pty Ltd [2015] QCAT 81 -- 1 of 3 -- 2 APPEARANCES: APPLICANT: Susan Dennis represented herself at the directions hearing on 14 April 2016 RESPONDENT: Kyle Grimshaw-Jones represented himself at the directions hearing on 14 April 2016 REASONS FOR DECISION [1] On 14 April 2016 at a directions hearing I dismissed the application for a tree dispute. The decision was by the consent of the parties. [2] The applicant, Susan Dennis, has requested reasons for my decision. Despite the fact that the order dismissing the application was one made by consent I will nevertheless outline the relevant considerations in order to assist the parties. [3] At the outset of the directions hearing, the capacity in which the respondent had been named was raised. A direction was made correcting the capacity in which Mr Grimshaw-Jones was named as a respondent and correcting the name of the deceased. [4] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) sets out particular trees in relation to which the Act does not apply.1 The Act does not apply to trees situated on rural land.2 Rural land is defined.3 It means rural land under the Land Valuation Act 2010 (Qld) (“LVA”). Under the LVA, an area of land is zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Planning Act.4 At the directions hearing both parties advised the Tribunal that the land on which the trees the subject of the dispute were situated was zoned rural land. [5] The parties were given the opportunity to make submissions on the jurisdiction of the Tribunal to hear and determine the dispute. Both parties submitted that the land upon which the trees were situated was zoned rural land. [6] By consent of both parties, the application was dismissed. [7] The request by Ms Dennis for these reasons appears to have arisen, at least in part, as a result of Ms Dennis’s view that despite the land on which the trees being situated is zoned rural land, the land is not in fact being used for rural purposes. The subjective view of the Tribunal as to the character 1 The Act, s 42(3). 2 Ibid, s 42(3)(a). 3 Ibid, Schedule. 4 Planning Act in the LVA is defined as the Sustainable Planning Act 2009 -- 2 of 3 -- 3 of the land is immaterial.5 The fact that the land on which the trees is situated is zoned rural removes the trees from the jurisdiction of the Tribunal. [8] Ms Dennis also raises an issue relating to the ‘Application checklist: Tree dispute resolution’ published by the Tribunal. That checklist contains a question ‘Is the tree/s growing on….a rural property’. Ms Dennis says that the reference to ‘rural property’ is confusing and could be interpreted as being a reference to the character of the land on which a particular tree or trees is situated. Of course, the checklist has no legal force or effect. I accept however that the reference to ‘rural property’ may be confusing and does not accord with the wording of the relevant legislative provisions and this may be a matter for further consideration by those charged with the promulgation of the checklist. 5 Easterbrook v Janalan Pty Ltd [2015] QCAT 81. -- 3 of 3 --