QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION: 	Ferguson v Rossiter [2021] QCAT 359
	
PARTIES:	nicola ferguson 	
	(applicant)	
	V	
	nicholas rossiter	
	(respondent)	
APPLICATION NO/S:	NDR0075-21	
MATTER TYPE:	Other civil dispute matters	
DELIVERED ON:	12 October 2021	
HEARD AT:	Brisbane	
DECISION OF:	Member Lember	
ORDERS:	The application is dismissed.  	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – where land is rural land – whether tribunal has jurisdiction
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes - where land rural
Land Title Act 1994 (Qld) 
Land Valuation Act 2010 (Qld), s 9, s 10, s 11
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(1), s 42(2), s 42(3), s 42(4), s 45, s48(1), s 52, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), 4(c), s 13, s 32(2), s 62(1), s 95(1)
	
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
What is the application about?
[1]	The applicant owns a property that she says is impacted by bamboo trees situated on and overgrowing from the adjoining land owned by the respondent. 
[2]	On 23 April 2021, the applicant applied to the tribunal for orders in relation to the respondent’s trees, following which the tribunal issued standard directions to progress the matter including that the respondent file a response by 9 July 2021. 
[3]	On 9 July 2021 the respondent filed a response seeking that the application be dismissed on the grounds that the tribunal lacks jurisdiction to hear it because: 
(a)	the land on which the trees are situated is rural land; and 
(b)	the trees are grown for commercial purposes. 
[4]	The tribunal issued directions that each party file submissions on the preliminary issue of whether the land is “rural land” by 22 September 2021, in order that the tribunal may determine that issue on the papers before the application progressed further. 
[5]	The applicant’s submissions state that the area of land the subject of the application is residential “despite being zoned rural” because a house is situated upon it.  The applicant also questioned the veracity of statements by the respondent that the bamboo trees are harvested for commercial purposes. 
[6]	The respondent tendered in evidence City Plan Property Reports – Gold Coast City Council dated 15 September 2021 that indicated that both properties are within the “Rural, Rural landscape and environment precinct” and are regulated under the “Rural zone code”.  
What laws apply? 
Jurisdiction over tree disputes
[7]	Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“NDA”) applies to trees situated on land recorded in the freehold land register but not to trees situated on: 
(a)	rural land; or 
(b)	a parcel of land that is more than four hectares; or 
(c)	land owned by a local government that is used as a public park; or 
(d)	land prescribed by regulation, 
and not to trees planted or maintained: 
(e)	for commercial purposes; or 
(f)	under an order of a court or tribunal; or 
(g)	as a condition of a development approval.  
[8]	A “tree” is defined in section 45 of the NDA. 
[9]	Tree keepers are responsible for their trees.  
[10]	Under section 48(1)(a) of the NDA a “tree keeper” is, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld), the registered owner of the lot under that Act. 
[11]	Whilst it is contested that the bamboo is grown for commercial purposes, the question upon which the application presently turns is whether the respondent’s land is “rural land” for the purpose of section 42(3)(a).  A residential home built on rural land does not preclude land being “rural land” under the NDA. 
[12]	In Schedule 4 to the NDA, “rural land” has the meaning given to that term in the Land Valuation Act 2010 (Qld) which says: 
9 What is rural land
Land is rural land if—
(a) under section 10, it is zoned rural land and it has not, under section 11, ceased to be zoned rural land; or
(b) under section 13 or 14, it has been declared to be rural land.
10 Zoned rural land
(1) An area of land is zoned rural land if more than half the land is zoned as rural land under a planning scheme made under the Planning Act (a Planning Act scheme).
(2) 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.
(3) To remove any doubt, for this section it is declared that the following land is not zoned as rural land—
(a) land zoned under a Planning Act scheme as rural–residential;
(b) land in a zone (whatever called) under a continued IPA planning scheme that is the nearest equivalent to rural–residential land under the Queensland planning provisions.
(4) For subsections (2)(b) and (3)(b), in deciding the nearest equivalent, regard must be had to the purposes and outcomes under the Queensland planning provisions for land to be zoned as rural.
(5) In this section— 
continued IPA planning scheme means a planning scheme made under the repealed Integrated Planning Act 1997 and continued in force under the Planning Act, sections 777 and 778.
Queensland planning provisions means the standard planning scheme provisions under the Planning Act, section 54.
11 Cessation of zoned rural land
Zoned rural land ceases to be zoned rural land and becomes non-rural land if, under a preliminary approval under the Planning Act approving a material change of use, it is used for an urban purpose.
[13]	Relying on the property reports tendered by the respondent, I am satisfied that the respondent’s land is currently zoned as “rural land” under the current Gold Coast City Council planning scheme. 
[14]	As rural land is expressly beyond the application of Chapter 3 of the NDA, the tribunal does not have jurisdiction to hear this application.  
The Tribunal’s role
[15]	The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the Tribunal, among other things, to: 
(a)	encourage the early and economical resolution of disputes before the Tribunal; and
(b)	ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice. 
[16]	Section 13 of the QCAT Act obliges the Tribunal to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application. 
Procedural powers 
[17]	Section 62(1) of the QCAT Act permits the Tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. 
[18]	Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.  These proceedings are known as decisions made “on the papers”. 
[19]	The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal.   
[20]	I am satisfied that the preliminary issue of jurisdiction is appropriate for an on-the-papers decision having regard to the tribunal’s mandate to conduct matters in a way that is quick and economical. 
[21]	I am also satisfied that the applicant was allowed a reasonable opportunity to give evidence and to make submissions prior to the making of this decision on the papers. 
Findings and Decision 
[22]	As the respondent’s land is rural land that is outside the application of the NDA, the bamboo trees that are causing the applicant concern are not trees over which the tribunal has jurisdiction. 
[23]	For those reasons, the application must be dismissed. 
[24]	Despite the necessary dismissal, noting that the response made a proposal to resolve the matter on the basis that the respondent would maintain the bamboo “to maintain essential screening between the two properties but otherwise to maintain the applicant’s views” at six weekly intervals, and the applicant’s reply accepting the same, the tribunal encourages the parties to reach an amicable resolution outside of the tribunal on the issues in dispute between them.