Ballantine v Noosa Shire Council [2014] QCAT 655

CITATION: Ballantine v Noosa Shire Council [2014] QCAT 655 PARTIES: Ian Michael Ballantine (Applicant) V Noosa Shire Council (Respondent) APPLICATION NUMBER: NDR078-14 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 15 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: TREE DISPUTE – Whether Tribunal has jurisdiction in respect of council reserve for parks and gardens – if Tribunal does not have jurisdiction then the application must be dismissed. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42 and 61 Queensland Civil and Administrative Tribunal Act 2009 ss 47 Izard v Cairns Regional Council 2010 QCAT 410 APPEARANCES and REPRESENTATION (if any): 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 3 -- 2 REASONS FOR DECISION [1] Mr Ballantine resides next to the Lake Doonella Bushland Reserve and is concerned that trees on that part of the reserve, which adjoin his land, will experience limb or whole tree failure. He states “Noosa Shire Council have lopped the trees twice but if there were a tree failure, the trees would cause severe damage to his house”. Mr Ballantine has applied to the tribunal for an order that the Council remove the trees1 [2] In his application, Mr Ballantine described the land the tree is on as a reserve other than a reserve for community purposes. The Council have made an application to strikeout or dismiss Mr Ballantine’s application on the basis that the land known as Lake Doonella Bushland Reserve, which comprises Lot 504 on SP108677 is owned by the State Government and is a reserve for Park and Gardens under the control of the Noosa Shire Council as trustee. The issue is that if the trees are on land, which is a reserve for community purposes under the Land Act 1994 (Qld), then the Tribunal does not have jurisdiction to hear the application2. [3] Mr Ballantine stated in his response to the application to strike out or dismiss that “ordinarily reserve land owned by the state government would fall under the Land Act 1994 and within the jurisdiction of the Tribunals, except in circumstances where the land has been entrusted for a “community purpose”. Schedule 1 of the Land Act defines what constitutes a community purpose3”. He concedes that it is likely that the Land would have almost certainly been transferred to the Council for a community purpose. Mr Ballantine then discusses the obligations placed on the Council under the Land Act 1994 (Qld) and notes Council is conducting a review of its relevant maintenance program in respect of the trees. He asked that the Tribunal adjourn the application and make a direction that the Council consult with the affected parties. [4] The Tribunal is satisfied that the land in question is land held by the council under the Land Act 1994 (Qld) for community purposes and that as a result the Tribunal does not have jurisdiction to hear the application. Where the Tribunal does not have jurisdiction to hear an application this is grounds to dismiss the application under s 47 of the Queensland Civil an Administrative Tribunal Act 2009 (Qld)4 on the basis that the application lacks substance. Mr Ballantine has requested the Tribunal adjourn the application and make directions. [5] The Tribunal’s jurisdiction is either original or conferred by an enabling act5. The relevant enabling Act here is the ND Act and the Tribunal does not have jurisdiction under that Act. The Tribunal then does not have 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 62. 2 Ibid, ss42(1)(e). 3 Schedule 1 of the Land Act 1994 includes Parks and Gardens as community purposes. 4 Izard v Cairns Regional Council [2010] QCAT 410. 5 QCAT Act s 9. -- 2 of 3 -- 3 jurisdiction to make directions in relation to the dispute between Mr Ballantine and the Noosa Shire Council and the application is dismissed. -- 3 of 3 --