Capo Di Monte v Tolmie & Anor [2013] QCAT 625

CITATION: Capo Di Monte v Tolmie & Anor [2013] QCAT 625 PARTIES: Capo Di Monte CTS 34920 (Applicant) v Robert Tolmie and Caroline Tolmie (Respondent) APPLICATION NUMBER: NDR186-12 MATTER TYPE: Other civil dispute matters HEARING DATE: 21 November 2013 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 21 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The trees in this Application are situated on rural land and thereby excluded from the Tribunal’s jurisdiction by section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011; and 2. The Application is dismissed. CATCHWORDS: Application of Act to tree – jurisdiction – trees situated on rural land – countryside precinct– rural or rural-residential equivalent Land Valuation Act 2009 s 9, 10 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 42, 61 McNamara v. Evans & Anor [2012] QCAT 219 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION What is this Application about? [1] On 11 September 2012, the Body Corporate of Capo Di Monte CTS 34920 applied to the Tribunal to have the trees removed or pruned from their neighbouring property at 42 Yuulong Street, North Tamborine. Mr Robert Tolmie and Mrs Caroline Tolmie own this property. [2] On 25 July 2013, the Tribunal directed the parties to provide evidence on whether the trees are on rural land and therefore outside its jurisdiction. [3] The Body Corporate claims that the property is not on rural land. The Body Corporate contends that the land is zoned as „Countryside Precinct‟ and therefore not the same as „Rural‟. The Body Corporate also contends that the use of the property “as a large ornamental garden… does nothing to enhance the existing character and amenity of the area.”1 [4] The parties have provided their evidence2 and the Tribunal must therefore determine jurisdiction. What is the Tribunal’s jurisdiction? [5] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 confers upon the Tribunal jurisdiction to make orders in relation to trees.3 The Tribunal‟s jurisdiction does not extend to trees situated on rural land.4 What is rural land? [6] “Rural land” means rural land under the Land Valuation Act 2010.5 [7] That Act relevantly provides land is rural land if it is zoned rural land or the valuer-general declares the land to be rural land.6 [8] An area of land is zoned rural land if: - under a planning scheme under the Planning Act, more than half the land is zoned as rural land7; - under a continued IPA planning scheme, more than half the land is zoned as rural land8; or - under a continued IPA planning scheme, more than half the land is in a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions. 9 1 Statement of Evidence with attachments by Capo Di Monte Body Corporate filed 7 August 2013. 2 Statement of Evidence with attachments by Capo Di Monte Body Corporate filed 7 August 2013 and Statement of Evidence with attachments by Robert and Caroline Tolmie filed 26 September 2013. 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 61. 4 Ibid s 42(3)(a). 5 Ibid, Schedule definition. 6 Land Valuation Act 2010 s 9. 7 Ibid s 10(1). 8 Ibid s 10(2)(a). -- 2 of 4 -- 3 [9] Additionally, land is not rural land if under a continued IPA planning scheme, it is in a zone that is the nearest equivalent to rural-residential land under the Queensland planning provisions. 10 How is the land zoned? [10] The land is zoned as the Tamborine Mountain Zone, Countryside Precinct under the Beaudesert Shire Planning Scheme – March 2007.11 That scheme was made under the Integrated Planning Act 1997 and continues. A planning scheme made under the repealed Integrated Planning Act 1997 and continued under the Sustainable Planning Act 2009 is a continued IPA planning scheme.12 [11] The land is therefore zoned under a continued IPA planning scheme. [12] Under the continued IPA planning scheme, the land is in the „Countryside precinct‟. Is ‘Countryside precinct’ land nearest equivalent to rural or rural- residential? What does ‘Countryside precinct’ mean? [13] Tamborine Mountain Zone‟s overall outcomes are deemed to be its purpose.13 The overall outcomes for „Countryside Precinct‟ are development of an agricultural character and non-farming development that maintains or enhances existing character and amenity.14 How does ‘Countryside precinct’ compare with rural? [14] To determine whether „Countryside precinct‟ is the nearest equivalent to rural land or rural-residential land, regard must be had to the purpose and outcomes under the Queensland planning provisions for land to be zoned as rural.15 [15] The mandatory purpose of the planning provisions for the rural zone includes agricultural uses and uses compatible with agriculture and the landscape character of the rural area.16 [16] The outcomes of the „Countryside precinct‟ and the rural zone under the Planning Provisions both include agricultural purposes and other compatible uses that enhance the character and amenity of the locality.17 This is supported by expert evidence submitted by Mr and Mrs Tolmie.18 9 Ibid s 10(2)(b). 10 Ibid s 10(3(b). 11 Letter Scenic Rim Regional Council to Bob Lake dated 26 July 2013. 12 Land Valuation Act 2010 s 10(5). 13 Beaudesert Shire Planning Scheme - March 2007, section 3.7.9. 14 Beaudesert Shire Planning Scheme - March 2007, section 3.7.10. 15 Land Valuation Act 2010 s 10(4). 16 Queensland Planning Provisions Version 3.0 dated 25 October 2013, Part 6-52. 17 Beaudesert Shire Planning Scheme - March 2007, section 3.7.10 and Queensland Planning Provisions Version 3.0 dated 25 October 2013, Part 6-52. 18 Letter Scenic Rim Regional Council to Bob Lake dated 26 July 2013, letters TJ Kelley Surveys Pty Ltd to Caroline Tolmie dated 19 July 2013 and 18 September 2013 and letter Buckley Vann Town Planning Consultants to Caroline Tolmie dated 19 September 2013. -- 3 of 4 -- 4 How does ‘Countryside precinct’ compare with rural-residential? [17] Where there are two possible zoning equivalents, as a matter of logic and fairness the nearest cannot be ascertained without regard to the purpose and outcomes of both. Failing to consider the rural-residential purpose and outcomes would be a failure to take into account a relevant consideration. Therefore, regard should also be had to the purpose and outcomes under the Queensland planning provisions for land to be zoned as rural- residential. [18] The mandatory purpose of the planning provisions for the rural-residential zone is to provide for residential developments on large lots where local government infrastructure and services may not be provided on the basis that the intensity of development is generally dispersed.19 This is not contemplated by the outcomes of „Countryside precinct‟. [19] A further contrast is the outcomes of the „Countryside precinct‟ focus on agricultural use and limit non-farming development, whereas the outcomes of the rural residential zone focus on residential use and limit non-residential development. How does the nearest equivalent affect zoning for the purpose of jurisdiction? [20] The purpose and outcomes of „Countryside precinct‟ overlap with rural zoning more than with rural-residential zoning. „Countryside precinct‟ is therefore the nearest equivalent to rural land under the Queensland planning provisions. The land is therefore zoned as rural land.20 Does the actual use of the property affect jurisdiction? [21] The Body Corporate‟s concern about the actual use of the property as a large ornamental garden has no bearing on jurisdiction - the criterion is whether the land is zoned as rural. 21 [22] The land is zoned as rural. The trees are situated on rural land. The Tribunal therefore does not have jurisdiction. Conclusion [23] I find that the trees in this Application are situated on rural land and therefore excluded from the Tribunal‟s jurisdiction. [24] The Application is dismissed. 19 Queensland Planning Provisions Version 3.0 dated 25 October 2013, Part 6-53. 20 Pursuant to the Land Valuation Act 2010, section 10(2)(b). 21 As noted by Senior Member O‟Callaghan in McNamara v. Evans & Anor [2012] QCAT 219 at paragraph [12]. -- 4 of 4 --