McGahey v Judd

CITATION:

McGahey v Judd [2014] QCAT 407

PARTIES:	Susan McGahey (Applicant)
v
Richard Judd (Respondent)

APPLICATION NUMBER:

NDR062-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

21 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

TREE DISPUTE – where respondents submits want of jurisdiction as rural land – dismissal for want of jurisdiction

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), ss 42(3), 62

Izard v Cairns Regional Council [2010] QCAT 410

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 (Qld) (QCAT Act).

REASONS FOR DECISION

Mrs McGahey is the owner of land at 267 Mossybank Road, Eudlo and is the neighbour of Mr Judd who owns lands on which trees are situated at 202 Perrins Road, Eudlo.
Ms McGahey has made application to the Tribunal for orders in respect of the trees on the land at 202 Perrins Road, Eudlo.
Mr Judd has made an application for miscellaneous matters to strike out the primary application on the basis that the land is classified as rural land and therefore the Tribunal does not have jurisdiction to hear the matter.
In regard to jurisdiction, Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Act’) deals with trees and in accordance with s 42(3)(a) of the NDR Act the Chapter does not apply to trees situated on rural land.
Mr Judd has provided evidence to the Tribunal in the form of a rates notice, a copy of part of the plan of survey for the land and an email from the Sunshine Coast Council which confirms that the land at 202 Perrins Road, Eudlo is defined under the 2014 Sunshine Coast Planning Scheme which was adopted on 21 May 2014 as being rural zoning.
Mrs McGahey has not provided any submissions in reply to Mr Judd’s submissions. The Tribunal accepts that the land in question is zoned as rural land.
The Tribunal’s jurisdiction to hear tree dispute applications is contained in s 62 of the NDR Act which is part of Chapter 3 and in accordance with s 42(3)(a) Chapter 3 does not apply to rural land. The Tribunal therefore does not have jurisdiction to hear this application.
Where the Tribunal does not have jurisdiction the Tribunal may dismiss the proceedings in accordance with s 47(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis that the application is lacking in substance in accordance with s 47(1)(b) of the Act.[1]
[1]Izard v Cairns Regional Council [2010] QCAT 410.
The order of the Tribunal is that the application is dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

CaseChat Overview and Summary

This matter involves a dispute between Susan McGahey, the applicant, and Richard Judd, the respondent, regarding trees located on Mr Judd's property. The Tribunal was asked to make orders in relation to these trees, but Mr Judd argued that the Tribunal lacks jurisdiction over the matter because the land in question is classified as rural land. This case was heard and determined on the papers, without an oral hearing, in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

The primary legal issue the Tribunal had to decide was whether it had jurisdiction to hear the matter. This was based on the classification of the land as rural under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDR Act). Specifically, section 42(3)(a) of the NDR Act excludes trees situated on rural land from the application of Chapter 3 of the Act. Mr Judd provided evidence in the form of a rates notice, part of a plan of survey, and an email from the Sunshine Coast Council confirming that the land at 202 Perrins Road, Eudlo, is zoned as rural under the 2014 Sunshine Coast Planning Scheme. The Tribunal accepted this evidence as correct and determined that it did not have jurisdiction to hear the matter.

The Tribunal dismissed the application under section 47 of the Queensland Civil and Administrative Tribunal Act 2009, on the basis that it was lacking in substance in accordance with section 47(1)(b) of the Act. This was because the Tribunal did not have jurisdiction to hear the matter due to the rural zoning of the land. The decision was based on the clear exclusion of rural land from the application of Chapter 3 of the NDR Act, as confirmed by the evidence provided by Mr Judd. The Tribunal made no further orders beyond the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established