Fox v Wolfe

[2013] QCAT 294

CITATION: Fox v Wolfe & Anor [2013] QCAT 294

PARTIES:	Mrs Lynette Margaret Fox (Applicant)
V
Mr Paul de Wolfe Ms Leanne Turner (Respondent)

APPLICATION NUMBER: NDR183-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Jim Allen, Member

DELIVERED ON: 20 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application is dismissed in accordance with section 46 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

TREE DISPUTE-where respondent submitted want of jurisdiction as rural land-definition of rural-dismissal for want of jurisdiction.

Neighbourhood Disputes Resolution Act 2011
ss, 42(3), 62
Land Valuation Act 2010 ss 9 and 10
Izard v Cairns Regional Council [2010] QCAT 410

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).

REASONS FOR DECISION

1. Mrs Fox is the owner of land at 5 Melia Court, Mapleton and is the neighbour of Mr de Wolfe and Ms Turner who own land on which trees are situated at 1 Melia Court, Mapleton. Mrs Fox made an application to the Tribunal for orders to be made in respect of the tress on the land at 1 Melia Court, Mapleton.

2. Mr de Wolfe and Ms Turner have responded that the land on which the trees are located is rural land (6.9 acres) and that the Tribunal in accordance with s42 (3) of the Neighbourhood Disputes Resolution Act 2011 (now the Neighbourhood Disputes (now the Dividing Fences and Trees Act) 2011) does not have jurisdiction to hear the application. They have filed a copy of a Sunshine Coast Regional Council Limited Planning & development Certificate dated 21 April 2011 which shows the following details in relation to the planning scheme:

   Precinct class: Water resources Catchment Area

   Strategic Plan: Rural or valued habitat/urban/agricultural protection

   SEQ Regional Plan: Urban Footprint/Regional Landscape and Rural Production Area.

3. The Tribunal sought clarification from Mr de Wolfe and Ms Turner in regard to the zoning of the land and a copy of an email form the Sunshine Coast Regional Council to Mr Rob Cork, the respondent’s surveyor, was provided. This stated that:

   The zoning for 1 Melia Ct Mapleton:

   Precincts- Maroochy Central Hinterland Planning Area 9 water resource Catchment Area precinct Class.

   The south East Queensland Regional Plan land use class fro this site is SEQ Regional Plan land use Regional Landscape and Rural production Area.

4. Mrs Fox in her submission submitted that the claim by Mr de Wolfe and Ms Turner that the land is rural land is incorrect. Information of zoning by the Sunshine Coast Council confirms that our submission that this is not rural land. Attached is a copy of the Council’s zoning of 1 Melia Court.  The document provided is headed Maps-Sunshine Coast Regional Council the words 1 Melia Court Mapleton, are highlighted as are the words Water Resource Catchment Area.

5. The Tribunal has the jurisdiction[1] given to it under the NDR Act[2] to hear and determine applications about tree disputes. The Tribunals jurisdiction is conferred by s 62 of the NDR Act which is in Chapter 3 of that Act. Chapter 3 of the NDR Act does not apply to Rural Land in accordance with s42 (3) of the NDR Act. Rural Land is defined in the NDR Act to mean:

   Rural land under the Land Valuation Act 2010

   [1] Queensland Civil and Administrative Tribunal Act 2009, s 6.

   [2] Neighbourhood Disputes Resolution Act 2011.

6. Rural land in accordance with s9 of the Land Valuation Act 2010 (“LV Act”) land which is relevantly zoned rural land under s10 of that Act. The definition under s10(2)of the LV Act is relevantly:

   Also, an area of land is zoned rural land If, under a continued IPA planning scheme, more than half the land is-

   (a)   Zoned as rural land; or

   (b)   In a zone (whatever called) that is the nearest equivalent to rural land under the Queensland planning provisions.

7. A continued IPA planning scheme is in accordance with s10(5) of the LV Act a planning scheme made under the repealed Integrated Planning Act 1997 and continued in force under the Planning Act[3], sections 777 and 778.

   [3] Defined as the Sustainable Planning Act 2009 in the dictionary to the LV Act.

8. The documents from the Sunshine Coast Regional Council refer to the relevant planning scheme as the South East Queensland Regional Plan 2009-2031[4]. That plan was released by the Minister for Infrastructure and Planning in accordance with the Integrated Planning Act 1997 s2.5A 15 and 2.5C 11[5].

   [4] Found at - Release notes to the SEQ Regional plan.

9. The SEQ Regional Plan allocates all land into one of three regional land use categories:

   a)    Regional landscape and Rural Production

   b)    Urban footprint

   c)    Rural living area[6].

   [6] SEQ Regional Plan at 13.

10. The Regional Landscape and Rural Production Area is said in the SEQ Regional Plan[7] to identify land with regional landscape, rural production or other non-urban values. It protects this land from inappropriate development particularly urban or rural residential development.

    [7] SEQ Regional Plan at 15.

11. This is particularly important as s10(3)(b) of the LV Act states the following land is not zoned as rural land:

    Land in a zone (whatever it is called|) under a continued IPA planning scheme that is the nearest equivalent to rural-residential land under the Queensland planning provisions. [8]

    [8] Izard v Cairns Regional Council [2010] QCAT 410.

12. Therefore land zoned Regional Landscape and Rural Production could not be urban land or rural-residential land and so the Tribunal is satisfied that it is the equivalent of rural land.

13. The Tribunal accepts the submissions of Mrs Fox that the land is water resource Catchment Area. And this also appears in the limited town planning certificate supplied by Mr de Wolfe and Ms Turner but this relates to a precinct and is not a land use as defined in the SEQ strategic plan.

14. The land the subject of the application is zoned Regional landscape and Rural Production and the Tribunal is satisfied this is the equivalent of rural land. In accordance with s42 (3) of the NDR Act the Tribunal does not have jurisdiction to hear the application. In that case the Tribunal must dismiss the application under s47 of the QCAT Act as it is without substance.