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
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
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
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.
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