Sewell v PC Properties Pty Ltd

CITATION:

Sewell v PC Properties Pty Ltd [2014] QCAT 381

PARTIES:	Lyle Sewell (Applicant)
v
PC Properties Pty Ltd (Respondent)

APPLICATION NUMBER:

NDR248-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

4 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a tree dispute filed on 19 December 2013 and the amended application for a tree dispute filed on 3 March 2014 are dismissed.

2. Lyle Sewell is to be refunded the amount of $400.00 he paid towards the cost of the tree assessment.

CATCHWORDS:

TREE DISPUTE – JURISDICTION – whether trees situated on a parcel of land that is more than 4 hectares

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1), s 42(3)(b)

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

Mr Sewell has made an application to the Tribunal concerning trees situated on land at 51 Lawnton Pocket Road, Lawnton that is owned by PC Properties Pty Ltd.
PC Properties Pty Ltd has made an application to the Tribunal to dismiss the primary application in accordance with s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
PC Properties Pty Ltd has provided a copy of the annual land valuation notice for the property at 51 Lawnton Pocket Road, Lawnton that shows the area of the property as 7.279 hectares.
Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) deals with tree disputes. Section 42 states that subject to subsections (2) to (5) this chapter applies to trees on the following land, relevantly here land recorded in the freehold land register. The land here is recorded in the freehold land register so without there being any other considerations the Chapter concerning trees would apply.
In accordance with s 42(3)(b) though Chapter 3 does not apply to trees situation on a parcel of land that is more than 4 hectares. Clearly, the trees here are situated on land with an area greater than 4 hectares it being situated on land of an area of 7.279 hectares.
Where the Tribunal does not have jurisdiction to hear an application that is a ground for dismissal of the application in accordance with the decision in Fleri v Commissioner of State Revenue.[1]
[1][2012] QCAT 135.
The Tribunal considers that the proceeding in this case is lacking in substance due to lack of jurisdiction in accordance with s 47(1) of the QCAT Act. The Tribunal has discretion to order that the proceeding be dismissed in accordance with s 47(2) of the QCAT Act where it is lacking in substance. Mr Sewell has indicated that he accepts that the application should be dismissed.
The Tribunal notes that Mr Sewell has paid an amount of $400 towards the cost of a tree assessor being appointed by the Tribunal and those monies will be refunded to him.
The order of the Tribunal is:
1. The application for a tree dispute filed on 19 December 2013 and the amended application for a tree dispute filed on 3 March 2014 are dismissed.
2. Lyle Sewell is to be refunded the amount of $400.00 he paid towards the cost of the tree assessment.

Sewell brought an application under the Tree Protection Act 2005 (Vic) against PC Properties, disputing the latter's intention to remove certain trees from a parcel of land that exceeds 4 hectares. The parties had engaged in a tree assessment process, resulting in a fee paid by Sewell. The application was filed and subsequently amended, but PC Properties argued the VCAT lacked jurisdiction to hear the matter due to the size of the land parcel. The court was required to determine whether it had jurisdiction to hear the application and, if so, to decide on the dispute regarding the removal of the trees.

The court found that the size of the land parcel was a critical factor in determining its jurisdiction. The Act specified that the tribunal only had jurisdiction to hear disputes about trees on land parcels of 4 hectares or less. Given that the parcel in question exceeded this limit, the court did not have the authority to proceed with the dispute. Sewell's application, both the original and the amended versions, was therefore dismissed. The court further ordered that Sewell be refunded the $400 he paid for the tree assessment.

This case underscores the importance of jurisdictional limits in statutory proceedings. The court's decision highlights that the tribunal's power is strictly confined by the statutory framework, and any deviation from the prescribed parameters will result in a lack of jurisdiction. The outcome also serves as a reminder for applicants to ensure that their claims fall within the tribunal's jurisdictional scope before proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established