Easterbrook v Janalan Pty Ltd

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

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.
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).
[1]Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 s 42(3)(a).
[2]Ibid Schedule.
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.
[3]LVA s 10(1).
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.
[4]LVA s 10(2)(b).
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”.
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’.
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’.
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.

CaseChat Overview and Summary

In Easterbrook v Janalan Pty Ltd, the plaintiff, Easterbrook, contested the jurisdiction of the tribunal to determine a dispute over trees situated on land designated as a Rural Character Precinct. The defendant, Janalan Pty Ltd, was the owner of the land in question. The dispute centred on the location and impact of the trees, which Easterbrook claimed were encroaching on his property and obstructing his view. The case was heard in the tribunal, which had to determine whether it had the authority to adjudicate over the matter given the specific designation of the land.

The primary legal issue before the tribunal was whether the trees in question were situated on rural land, and consequently, if the tribunal had jurisdiction to hear the dispute. Easterbrook argued that the trees were located on rural land, and thus, the tribunal had the requisite jurisdiction to proceed with the matter. Janalan Pty Ltd contended that the trees were not on rural land and that the tribunal did not have the jurisdiction to determine the dispute.

The tribunal found that the trees were indeed situated on land designated as a Rural Character Precinct, which qualified as rural land for the purposes of the legislation governing such disputes. Consequently, the tribunal concluded it had jurisdiction to determine the proceeding. The tribunal acknowledged that the designation of the land as a Rural Character Precinct was a critical factor in its jurisdictional determination, as it established the rural nature of the land in question. This jurisdictional finding allowed the tribunal to proceed with the merits of the dispute concerning the trees.

The tribunal's decision confirmed its jurisdiction to hear the dispute and set the stage for the resolution of the matter on its merits. The tribunal ordered that it had jurisdiction to determine the proceeding, paving the way for further consideration of the impact and location of the trees on Easterbrook's property.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established