Easterbrook v Janalan Pty Ltd [2015] QCAT 81

CITATION: Easterbrook v Janalan Pty Ltd [2015] QCAT 81 PARTIES: Pamela Anne Easterbrook (Applicant/Appellant) v Janalan Pty Ltd (Respondent) APPLICATION NUMBER: NDR192-14 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 9 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal has jurisdiction to determine the proceeding. CATCHWORDS: NEIGHBOURHOOD DIPSUTES – TREES – JURISDICTION – where tree situated on land designated as Rural Character Precinct – whether situated on rural land – whether tribunal has jurisdiction Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) s 42(3)(a) Land Valuation Act 2010 (Qld) s 10 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] An avenue of 29 Bunya trees flanks the long driveway on land owned by Janalan Pty Ltd. Ms Easterbrook, who lives next door, wants the trees removed. Before the tribunal can consider the merits of Ms Easterbrook’s application, it must first determine whether it has jurisdiction or whether jurisdiction is excluded because the trees are situated on rural land. -- 1 of 2 -- 2 [2] The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) does not apply to trees situated on rural land.1 “Rural land” means ‘rural land under the Land Valuation Act 2010 (Qld)’2 (LVA). [3] Land will be rural land under the LVA if an area of land is zoned rural land or if more than half the land is zoned as rural land under a planning scheme made under the Planning Act.3 Janalan’s property is not zoned rural land. [4] Land will also be rural land if more than half the land is in a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions.4 Janalan’s land is zoned “Tamborine Mountain” and within the “Rural Character Precinct”. The question for the tribunal is whether this zoning is the nearest equivalent to rural land. It is not for the tribunal to determine whether the zone has a rural character, rather it is for the tribunal to determine whether it is the nearest equivalent to rural land in the particular planning scheme. [5] The Tamborine Mountain precinct does not have a rural zone. Two designations might meet the description of “nearest equivalent” to rural land. One is the Rural Character Precinct, in which these lots belong. The other is “Countryside”. [6] The planning scheme states ‘Development within the Rural Character Precinct is characterised by pockets of good quality agricultural land and land which exhibits high landscape and amenity values. The Precinct provides for large rural residential allotments’. [7] The planning scheme states ‘Development within the Countryside Precinct has an agricultural character typified by broad hectare farming. Limited opportunity also exists for non-farming development – where such development maintains or enhances existing character and amenity’. [8] The closest equivalent to a rural zone in the Tamborine Mountain zone is, therefore, the Countryside Precinct. For that reason, I have determined that Janalan’s land is not rural land for the purposes of the Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) and the tribunal does have jurisdiction to determine the dispute. 1 Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 s 42(3)(a). 2 Ibid Schedule. 3 LVA s 10(1). 4 LVA s 10(2)(b). -- 2 of 2 --