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HG Alert: Neighbourhood tree dispute no jurisdiction for QCAT 29 July 2014

In this Alert, Special Counsel Anthony Pitt and Associate Samantha Hotton discuss how HopgoodGanim successfully acted for the owner of a large holiday home on Hamilton Island in dismissing an application for a tree dispute in the Queensland Civil and Administrative Tribunal (QCAT).

The application, brought under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Act), was dismissed as the adjacent owner did not have standing to make an application under the Act as they did not fall within the definition of a “neighbour” as required by the Act.

This decision is the first case that confirms that QCAT does not have jurisdiction to hear and determine certain applications for tree disputes brought by leasehold land holders.

The dispute

An adjacent owner lodged an application for a tree dispute seeking orders that the owner trim back various trees on the owner’s land as they were alleged to be blocking the adjacent owner’s views out to the Coral Sea.  

To have standing to file an application for a tree dispute in QCAT, the applicant must (amongst other things) be able to establish that their land is “land affected by a tree” and that they are a “neighbour” as those terms are defined in the Act.

Was the adjacent owner’s land affected by the owner’s trees? 

Under the Act, “land affected by a tree” includes a situation where the tree has caused, is causing, or is likely within the next 12 months to cause substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.

In this case, the adjacent owner alleged that the owner’s trees were causing severe obstruction of views and sunlight to their land. However, to satisfy the definition of “land affected by a tree”, the adjacent owner had to be a “neighbour” as defined in the Act. 

The definition of a “neighbour”

The Act defines “neighbour” as each of the following entities: a registered owner or occupier of freehold land, a body corporate for the community titles scheme (where the land is scheme land under the Body Corporate and Community Management Act 1997), or a body corporate for the plan (where the land is the subject of a plan under the Building Units and Group Titles Act 1980).

In this case, the adjacent owner claimed that they were a “body corporate for land” and therefore entitled to bring the application against the owner.

Dismissing the proceedings

HopgoodGanim, acting for the owner, applied to QCAT seeking an order that the adjacent owner’s proceeding be summarily dismissed on the basis that the definitions of “land affected by a tree” and “neighbour” were not satisfied, and the Act did not apply.

The owner argued that because Hamilton Island is Crown leasehold land, by virtue of the definition of “neighbour”, the Act only permits someone who is the registered owner of a freehold lot (as opposed to leasehold) to apply to QCAT. Further, the adjacent owner was not a body corporate under the Body Corporate and Community Management Act 1997 or the Building Units and Group Titles Act 1980

QCAT dismissed the adjacent owner’s proceeding and found that the definition of “neighbour” under the Act was inclusive and was limited to the three entities in that definition. Therefore, any relief under the Act relating to tree disputes is limited to those persons who satisfy the definition of “neighbour” under the Act. 

The decision demonstrates the importance of ensuring that all of the jurisdictional pre-requisites of the Act have been satisfied with respect to tree disputes before QCAT as QCAT’s jurisdiction is limited to the Act’s requirements. 

For more information on this decision or tree and other neighbourhood disputes generally, please contact HopgoodGanim’s Litigation and Dispute Resolution team.

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