Macdonald v Mantha [2025] QCAT 179

• [1] Mr and Mrs Macdonald ('the Applicant') filed in the Tribunal an Application for a tree dispute on 19 October 2023 ('the Application'). Mrs Mantha ('the Respondent') filed a Response on 8 November 2023. The parties own and occupy neighbouring properties in Bayview Heights, Queensland at 7-9 Jacana Close and 1-5 Jacana Close respectively.
• [2] The Applicant's material identifies and locates certain trees as being the subject of the Application.
• [3] The Respondent claims (inter alia) that a number of the trees identified by the Applicant as being the subject of the Application are covered by a condition of a development approval and, as such, are outside the jurisdiction of the Tribunal.
• [4] The Tribunal made (inter alia) the following directions on 17 June 2024:
  1. Under section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the Tribunal does not have jurisdiction over trees planted or maintained as a condition of a development approval. The following questions will be decided as a preliminary matter:
     1. Are all or some of the trees in dispute planted or maintained as a condition of a development approval? And, if so,
     2. Whether the Application for a tree dispute should be dismissed.
  2. Cairns Regional Council must file in the Tribunal one (1) copy of any additional evidence and written submissions about the preliminary matter on or before 4:00 pm on 9 August 2024.
• [5] Cairns Regional Council filed in the Tribunal on 31 July 2024 and copied to the parties a response to the Tribunal's directions including an explanation of the development approval affecting the Respondent's property and a copy of the approval and vegetation assessment ('development approval material').
• [6] The Tribunal made further directions on 4 September 2024 permitting the parties to make written submissions in relation to the development approval material. No further submissions have been filed by the parties.
• [7] The Tribunal has considered and decided the preliminary matter on the papers.

• [8] I summarise the relevant parts of the development approval material as follows:

(a) A Cairns Regional Council Development Approval dated 14 February 2022 approves the clearing of specified vegetation on the Respondent's property by a certified arborist.

(b) The vegetation for clearing is specified as: vegetation within the area described as the "Proposed Development Footprint" (as at 9 December 2021) as detailed on the Vegetation Assessment Plan (and map); and significant trees 1, 2, 17, 5, 18 identified in Table 1 and Appendix A of the Vegetation Assessment (map).

(c) All other trees are required to be retained and protected as part of Condition 10 of Part A - Material Change of Use of Approval. Condition 10 provides that vegetation adjacent to the approved development footprint (within the exception of significant trees 1, 2, 17, 5, 18) must be retained as landscaping to contribute to the landscape character and scenic amenity of hillslopes area, protect the scenic backdrop to the region and to not cause direct or indirect adverse impacts on areas of environmental significance.

(d) Condition 9 of Part B - Operational Works Permit provides that the arborist must ensure the extent of the approved clearing and vegetation to be retained is clearly demarcated on site and vegetation protection measures are in place in accordance with the applicable Australian Standards.

(e) An application must be submitted to the Council for approval prior to the clearing of any vegetation other than the specified vegetation.

• [9] The Applicant's material identifies and locates, on an aerial photograph, trees numbered 1 to 10 and named by description and species. Trees of the same description/species are assigned the same number. The numbering is the Applicant's and unrelated to the numbering used by the Council in the development approval material.
• [10] Referencing the Council's Vegetation Assessment Map, I consider that the trees numbered 1, 3, 3, 3, 10, 9, 3, 4, 5, 6, 7 and 8 and located to the north-east of the Respondent's driveway constitute vegetation contained within or adjacent to the approved development footprint. Accordingly, I find that the Tribunal does not have jurisdiction over these trees.
• [11] Referencing the Council's Vegetation Assessment Map, I consider that the trees numbered 1, 2, and 1 (being bamboo and grevillea) and located along the parties' shared boundary do not constitute vegetation contained within or adjacent to the approved development footprint. Accordingly, I find that the Tribunal has jurisdiction over these trees.