Bell v Griffiths [2013] QCAT 655

CITATION: Bell v Griffiths [2013] QCAT 655 PARTIES: Adrian Simon Bell (Applicant) V Andrew Griffiths (Respondent) APPLICATION NUMBER: NDR186-13 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 2 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: TREE DIPSUTE – Land affected by tree does not adjoin land of the tree-keepers and is not separated by a road – question of whether Tribunal has jurisdiction to hear application where land of neighbours does not adjoin nor is it separated by a road - dismissal of basis application lacks substance Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 48, 49, 66 Queensland Civil and Administrative Tribunal Act 2009 s 47 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 (QCAT Act). REASONS FOR DECISION [1] Mr Bell is the owner of land at 35 Dudley Street, Bardon. Mr Griffiths owns land at 37 Dudley Street, Bardon. The two properties are separated by a strip of land belonging to the owner of the property at 35A Dudley, Street. -- 1 of 3 -- 2 Mr Bell, as the neighbour1 alleges that his land is affected by a palm tree that is situated on the land owned by Mr Griffiths, as the tree-keeper.2 [2] The Tribunal has jurisdiction to make orders it considers appropriate in relation to a tree affecting the neighbours land.3 Land is affected by a tree in certain circumstances with the condition that the Land adjoins the land on which the tree is situated; or would adjoin the land on which the tree is situated if it were not separated by a road.4 The word adjoins is not defined in respect of its use in that section though road is defined in the Dictionary to the Act, an area of land dedicated to public use as a road; or an area that is open to or used by the public… [3] The Tribunal was concerned that there may have been a lack of jurisdiction in this case if Mr Bell’s land was found not to adjoin Mr Griffiths property or be separated from it by a road. The Tribunal made directions for the parties to file submissions in regard to that question and for the question of jurisdiction to be determined on the papers.5 [4] Mr Bell in his submissions described the positioning of the properties as “the defendant’s house and my house are approximately 7 metres apart. The actual boundaries of Mr Griffiths and my property are approximately (3) metres apart, being the width of an approximately 50 metre long sealed bitumen laneway between my property and the property of Mr Griffiths. A copy of a survey map is annexed to Mr Bell’s submission which clearly shows the separation of the properties. The laneway appears to go into another property marked on the plan as Waugh/McInery. [5] Mr Bell confirms that the house of Mr Waugh and Mrs McInery is situated at the end of the laneway and he refers to it as a battle axe block. Mr Bell refers to a definition of road taken from the Australian Concise Oxford Dictionary. Mr Bell notes that the laneway is sealed and it does not matter if it owns publicly or privately in terms of the definition which he has provided for a road. [6] Mr Griffiths in his submissions stated that the requirement that the land adjoins is not complied with as Mr Bell’s land adjoins that of Mr Waugh. Mr Griffith states that Mr Bell fails to satisfy the requirement that the land would adjoin if not separated by a road as the driveway is a private concrete driveway and there is no adjoining bitumen at the adjoining point. [7] The word adjoin is not a technical word and should be given its ordinary meaning that is “to be located next to or very near (a thing, place, or person); to be adjacent or contiguous to. (also) to be physically joined, attached, or connected to”.6 Here the two blocks of land are separated by 1 Neighbour Disputes (Dividing Fences and Trees) Act 2011 s 49. 2 Ibid s 48. 3 Ibid s 66. 4 Ibid s 46. 5 Queensland and Administrative Tribunal Act 2009 s 47(3). 6 Oxford English Dictionary Online edition. -- 2 of 3 -- 3 a strip of land owned by another party, that is Mr Waugh, and it cannot be said that the two blocks are located next to or contiguous with each other. [8] The ND Act takes account of lands which are separated by a road as defined in the ND Act, which requires that it be an area of land dedicated to public use. As the ND Act has its own definition of road this definition takes precedence and the definition of Mr Bell does not apply. The Tribunal accepts the submission of Mr Griffith’s that the area of land between Mr Bell and Mr Griffiths properties is a driveway for private use and therefore not a road. [9] For this reason it cannot be said that the requirements of s 46 of the ND Act are met as the two parcels of land do not adjoin and are not separated by a road in which case the Tribunal does not have jurisdiction to make any order under s 66 of the ND Act. [10] Where an application lacks substances or is misconceived the Tribunal may dismiss the application. One of the grounds upon which the Tribunal will determine that an application lacks substance or is misconceived is where the Tribunal lacks jurisdiction to determine the matter.7 [11] The Tribunal is satisfied that as a result of the fact that the Tree-keeper’s land does not adjoin the land that is allegedly affected by the tree nor is it separated by a road then the land is not affected by the tree in accordance with the ND Act and the Tribunal does not have jurisdiction to hear the application. The application lacks substance and is dismissed in accordance with s 47 of the QCAT Act. 7 See Fleri v Commissioner of State Revenue [2012] QCAT 135; Cowie v Commissioner of State Revenue [2012] QCAT 612; Naswari v Commissioner of State Revenue [2013] QCAT 66. -- 3 of 3 --