Cohn and Ors v Gandhi and Anor [2012] QCAT 84

CITATION: Cohn and Ors v Gandhi and Anor [2012] QCAT 84 PARTIES: Dr Peter Cohn Mrs Jacqueline Cohn Mr David Parker Mrs Sally Parker v Dr Maher Gandhi Dr Catherine Gandhi APPLICATION NUMBER: NDR019-11 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Kerrie O'Callaghan, Senior Member DELIVERED ON: 1 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Where a question of whether the Act applies to the tree – the tree has been maintained as a condition of development approval Neighbourhood Disputes Resolution Act 2011, ss 64 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] Peter and Jacqueline Cohn and David and Sally Parker filed an application against their neighbours Maher and Catherine Gandhi seeking orders in relation to a jacaranda tree located on the Gandhi’s property at 20 Batman Street, Clayfield. The Cohns and Parkers applied for orders that the tree be removed or alternatively that the tree branches and roots be pruned. [2] The Brisbane City Council were advised of the application and indicated that they would like to appear in the proceedings. They were entitled to do so pursuant to section 64 of the Neighbourhood Disputes Resolution Act -- 1 of 3 -- 2 2011 (the Act) as the tree was protected by Council’s Natural Assets Local Law 2003 and as such in terms of section 64 “carrying out work on the tree may require the consent or authorisation of the Brisbane City Council.” [3] Brisbane City Council also brought to the Tribunal’s attention the fact that the tree was required to be retained as a condition of a development permit. [4] The Tribunal may only make orders with respect to trees to which the Act applies. [5] Section 42 of the Act prescribes the trees to which the Act does not apply. [6] Section 42(4)(c) provides: “This chapter does not apply to trees planted or maintained as a condition of a development approval.” [7] As a consequence of the advice from the Brisbane City Council, before any further steps could be taken in the application the preliminary issue of whether the Tribunal had jurisdiction to make orders with respect to the tree needed to be determined. [8] I made orders seeking submissions from all parties and the Brisbane City Council as to whether the Tribunal had jurisdiction to make orders in light of section 43(4)(c) of the Act. [9] All parties and the Brisbane City Council filed submissions. [10] There is no dispute that the retention of the tree was a condition of the development approval granted on 9 January 2003 for development of the land at 52 Bellvue Terrace, Clayfield. [11] Brisbane City Council and the Gandhis submit that in that case the Act does not apply to the tree. [12] The Cohns and the Parkers reiterated in their submissions their concerns with respect to the tree and that they required an order that the tree be lopped. [13] They submitted that section 42(4)(c) is not applicable as “the development approval was only relevant during the construction stage of the units 10 years ago”. [14] I reject that argument. [15] It was pointed out by the Gandhis that section 245 of the Sustainable Planning Act 2009 makes it clear that a development approval attaches to the land the subject of the application and binds the owner and the owner’s successors. [16] The subject tree has been maintained as the condition of the development approval and as such the Act does not apply to the tree. -- 2 of 3 -- 3 [17] The Tribunal has no jurisdiction to make any order with respect to the tree and it follows that the application must be dismissed. I order accordingly. -- 3 of 3 --