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  • Unreported Judgment

Schmidt & Duarte v Freeme

 

[2016] QCAT 251

CITATION:

Schmidt & Duarte v Freeme [2016] QCAT 251

PARTIES:

Martin Schmidt and Ana Pereira Duarte

(Applicant)

v

Gary Freeme and Susan Freeme

(Respondent)

APPLICATION NUMBER:

NDR033-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

12 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Tribunal finds that the subject tree is not the subject of a condition of a development approval.

CATCHWORDS:

TREES – Whether a particular tree was planted or maintained as a condition of a development approval – Where no approved landscaping plan requiring retention of the tree was in evidence – Where no written condition of approval required retention of the tree – Whether Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applies

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42(4)(c)

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

  1. [1]
    Mr Schmidt and Ms Duarte (the ‘neighbours’) live at 43 Atrium Way, Everton Hills. Mr Freeme and Ms Freeme (‘the tree keepers’) live next door at 1097 South Pine Road, Everton Hills.
  1. [2]
    A large spotted gum tree is located near the joint boundary. Branches from it have at times hung over the fence and over the neighbours’ property.
  2. [3]
    The neighbours filed an application in the Tribunal on 2 March 2015, seeking an order for the removal of the tree.
  3. [4]
    The tree keepers had developed their property in 2002 as Cluster Housing, comprising of five dwellings. The development was approved by the responsible local authority at the time, the Pine Rivers Shire Council.
  4. [5]
    A further Development Application was made in late 2006 by the tree keepers to reconfigure the lots from two lots into three lots.
  5. [6]
    A further development application was approved on 9 December 2014 by the current local authority, the Moreton Bay Regional Council. That application was for a ‘Material change of use – Development Permit for Commercial Service (Day Spa)’.
  6. [7]
    The tree keepers submitted in the proceedings[1] that the application was beyond the jurisdiction of the Tribunal due to the operation of s 42(4) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
  7. [8]
    Chapter 3 of the Act provides for the ways in which a person may deal with an issue about a tree affecting the person’s land, which includes applying to the Tribunal for an order.[2] Section 42(4)(c) of the Act provides:

(4) This chapter does not apply to trees planted or maintained –

(c) as a condition of development approval

  1. [9]
    The tree keepers submit that the gum tree is maintained under a condition of development approval. The neighbours disagree with that submission.
  2. [10]
    The Tribunal gave Directions on 15 March 2016 that:

The preliminary issue, namely whether the tree is the subject of a condition of a development approval, will be determined on the papers, without an oral hearing, not before 8 April 2016.

  1. [11]
    Submissions on the preliminary issue have been received from all parties. This is the decision on the preliminary issue.

Submissions by the tree keeper

  1. [12]
    The tree keepers have filed a copy of a hand drawn plan referring to ‘proposed extra 5 cluster houses at back of block’.[3] That plan shows gum trees along the common boundary. It has a stamp upon it which is faint and unclear on the copy, but appears to say ‘Pine Rivers Shire Council’ and ‘Approved’ and has the reference ‘2002/14-MCUCI’ and the date of 14 June 2002.
  2. [13]
    A separate hand drawn plan was apparently attached to one of the documents that were part of one of the development applications, and shows several gum trees near the common boundary. That plan is entitled ‘Landscape Design Lot 95 SL11116’, is undated, does not disclose the author, and does not bear any approval stamp.
  3. [14]
    The tree keepers had a Development Assessment Report prepared for ‘Proposed Combined Application – 5 Units to 6 Units, Art Gallery and Subdivision 1 into 2 lots’. The author of the report is blanked out. The report states that it was prepared for Gary & Susan Freeme. The date of the report is December 2006. In section SO14 as to Landscaping outcomes, the response PS14.3 is ticked:

Established trees within the site will be retained where their removal is not required to facilitate approved construction works.

  1. [15]
    The tree-keepers have filed a copy of the cover page of ‘Pine Rivers Shire Council Development Permit No 2006/11006’. That permit relates to a ‘Material change of use (Multiple Dwelling Unit and Art Gallery and reconfiguring a Lot) for land described as ’Lot 2 on RP205690 Parish of Kedron, Lot 95 on SL11116 Parish of Kedron’’. The permit was presumably issued after consideration of the Development Assessment Report.
  2. [16]
    The tree keepers refer to a letter they received from the Development Planning Manager of the Moreton Bay Regional Council dated 25 August 2015 that:

This letter is to confirm that there is a Development Approval for the above property approving a Cluster Housing Development. The approval was subject to a condition requiring the approval of a landscape plan for the development. Council approved operational work application for a landscape plan that included the retention of a number of existing trees one being the tree in question.

Neighbours submissions

  1. [17]
    The neighbours have obtained documents from the Moreton Bay Regional Council under right to information provisions.
  1. [18]
    A copy of a Decision Notice issued under Section 3.5.15 of the Integrated Planning Act 1997 (Qld) (Integrated Planning Act) dated 14 June 2002 provides that:

Your application for a Development Permit for a Material Change of Use – Impact assessment, for an Undefined Use (Cluster Housing) 1097 South Pine Road, Everton Hills 4053 on land described as Lot 95 SL 11116 Parish Kedron, was assessed and approved with conditions on 14 June 2002.

There were no referral agencies involved in the consideration of your application.

Please find attached:-

  1. (1)
    Conditions of your approval as adopted by the Pine Rivers Shire Council.
  2. (2)
    Plans and Specifications approved by Council.
  3. (3)
    Rights of Appeal explanatory note.
  4. (4)
    Information Sheet on Environmental Nuisances.
  5. (5)
    Guidelines for Successful Tree Retention.
  1. [19]
    A copy of ‘Development Permit 2002-14/MCUCI’ issued to an unknown person (blanked out), whose address for service is ‘C/- AGF Security Unit 1, 71 Kremzow Road, Brendale’ dated 14 June 2002 has conditions attached. Condition 14 is as follows:

14. Landscape provision

A landscape plan and specification prepared by a qualified landscape architect or equivalent will be required to be approved by Council prior to the issuing of a development Permit for Building Works. The landscaping plan shall indicate additional landscaping to be provided on the site and should incorporate fast growing native species.

  1. [20]
    A copy of a fax from ‘AGF Security’ of 71 Kremzow Road, Brendale in Queensland to the Pine Rivers Shire Council dated 17 June 2002 from an unknown person (the name is blanked out) provides that:

Paul, Hi

As previously discussed could you please confirm that considering no trees are to be removed from site and that substantial improvements have already taken place, that a detailed Landscape plan drawn by myself will be sufficient. I did complete 2 years of forestry at A.N.U. before switching to music so I believe I not only have the practical knowledge but also the sensitivity required.

  1. [21]
    It is apparent that the fax was sent by Mr Freeme, the tree keeper, as he has forwarded emails to the Tribunal in the name of AGF Security, and he outlines in his response[4] that:

We have spoken to the Arborist, Matt Williams. The respondent, Mr Freeme advised the Arborist of his own experience, being two years at University of Queensland and one year at ANU, studying Forestry, and extensive experience working for the Forestry Department in South East Queensland and the Atherton Tablelands.

  1. [22]
    A further Decision Notice issued under Section 3.5.15 of the Integrated Planning Act dated 16 October 2002 provides that:

Your application for a Development Permit for Operational Works – (Landscaping) at 1097-1099 South Pine Road, Everton Hills on land described as Lot 95 SL 11116 Parish Kedron, was assessed and approved with conditions on 16 October 2002.

There were no referral agencies involved in the consideration of your application.

Please find attached:-

  1. (1)
    Conditions of your approval as adopted by the Pine Rivers Shire Council.
  2. (2)
    Plans approved by Council.
  3. (3)
    Rights of Appeal explanatory note.
  4. (4)
    Information Sheet on Environmental Nuisances.
  5. (5)
    Guidelines for Successful Tree Retention.
  1. [23]
    A copy of ‘Development Permit 2002-14/OPWL’ issued to an unknown person (blanked out), whose address for service is ‘C/- The Certification Professionals, PO Box 5070 Strathpine Qld 4500’ dated 16 October 2002 has conditions attached . Conditions 1 and 5 are as follows:
    1. (1)
      Approval

(i) The site shall be developed in substantial accordance with the Drawings lodged to Council with this Application and as amended by these conditions.

(5) Maintenance of Landscaping

All landscaping shall be maintained to a high standard and replacement planting shall be undertaken on the site throughout the life of the development as required.

  1. [24]
    The neighbours also refer to a letter from the Moreton Bay Regional Council dated 25 August 2015 that:

Whilst the landscape plan requires the retention of the tree, Council has no objection to the removal of the tree in question, subject to an application for Generally in Accordance with the existing Development Permit being approved. It is noted the land owner would need to make the application.

  1. [25]
    The neighbours note that they have received advices from the Council, and submit as follows:[5]

On 24 August 2015 we had a meeting with the Moreton Bay Regional Councillor Brian Battersby and the Development Planning Manager Amanda Dryden. Amanda Dryden informed us that on that same morning prior to our 3:00pm meeting she had contacted Gary Freeme by phone to advise him that (if submitted) she would approve a Generally in Accordance application for the removal of the tree from the landscape plan and would waive any fees in association with the application. Amanda Dryden said that Gary Freeme declined to make an application to council.

The respondents can at any time voluntarily remove the spotted gum tree from their landscape plan by contacting the Council. This therefore shows that the retention of the spotted gum tree is not a condition of development approval but rather a voluntary retention of the tree by the respondents.

Discussion

  1. [26]
    A development permit was given on 14 June 2002 for Cluster Housing, but was subject to a condition that a landscape plan and specification prepared by a qualified landscape architect or equivalent would be required to be approved by Council prior to the issuing of a development permit for Building Works.
  2. [27]
    The hand drawn plan that appears to have an ‘approved’ stamp on it is also dated 14 June 2002. The tree keepers seem to refer to that plan in their submissions as the approved landscape plan. However, that plan cannot be the approved landscape plan as it is dated on the same day as the development permit which requires the lodging of a landscape plan and specification prepared by a qualified landscape architect or equivalent.
  3. [28]
    Further, the hand drawn plan which has the stamp dated 14 June 2002 on it, does not have any notation on it referring to the tree and requiring its retention.
  4. [29]
    It seems that Mr Freeme requested the Pine Rivers Shire Council on 17 June 2002 to accept that a plan drawn by himself would be sufficient.
  5. [30]
    An apparent landscape plan is disclosed in the material which is the hand-drawn plan entitled ‘Landscape Design Lot 95 SL11116’, which is undated, does not disclose the author, and does not bear any approval stamp. This may be a plan prepared by Mr Freeme and lodged pursuant to the development application approval of 14 June 2002, and after 14 June 2002.
  6. [31]
    A Development Permit for Operational Works (Landscaping) was issued on 16 October 2002. It refers to drawings lodged to Council with the application. The actual drawings that were lodged with the Pine Rivers Shire Council as to the Operational Works - Landscaping, and approved, have not been identified and disclosed (although there would be a strong suggestion that they may be the hand drawn Landscape Design plan).
  7. [32]
    The Council has indicated to the neighbours that it would approve the removal of the tree if so requested by the tree keeper. That approval would presumably be predicated on the maintenance provisions of the development approval for landscaping works.
  8. [33]
    It is notable that the development approval for the cluster housing was given in 2002, which is 14 years ago. Vegetation is a living organism, and consideration must be given to changes over time.
  9. [34]
    The retention of a tree may have been perfectly reasonable in 2002, but may be quite inappropriate in 2016, due to the growth and behaviour of the tree and the change of the risk profile over time.
  10. [35]
    The possibility that trees planted or maintained under a landscape plan may need periodic review is implicit in the maintenance condition of the Development Permit for Operational Works Landscaping, which anticipates that replacement planting may be permitted throughout the life of the development. In the context of this application, that requirement would act not to prohibit the removal of a tree, but rather to regulate it, and to provide that if a tree needs replacing (which could occur through mortality, accident, or intentional removal) that a replacement planting be effected.
  11. [36]
    The Development Assessment Report provided by the tree keepers is a document that was prepared as part of the application process for a material change of use in 2006. It is a document produced by, or on behalf of, the tree keepers. It is not a decision of the Council, or a development condition, in itself.
  12. [37]
    The wording of PS 14.3 of the Development Assessment Report does not in any event commit the tree keepers to retain all established trees absolutely. The response indicates that established trees will be retained only ‘where their removal is not required to facilitate approved construction works’. Until the operational works application, and corresponding complying landscape plan, is received and approved, there is no certainty as to which (if any) established trees will be retained.
  13. [38]
    A plan is in evidence which has a stamp ‘approved’ on it, which shows trees on it. That plan is titled ‘Application plan of proposed reconfiguration and easement 1095-1097 South Pine Road, Everton Hills’ and is dated 24 April 2006. That date is about four years after the date of the initial approval for a material change of use. It has a notation on it that ‘This is an application plan only. Final boundaries and areas will be determined by survey’. That plan is not a landscape plan, and does not have any notations on it requiring retention of the particular tree, or any tree.
  14. [39]
    There is a discrepancy as to trees between the hand-drawn plan entitled ‘Landscape Design’ (which may have been produced for the 2002 Operational Works Landscaping application) and the Application Plan dated 24 April 2006.
  15. [40]
    The ‘Landscape Design’ plan as to Lot 95 SL11116 shows only eight gum trees on the Western and Northern boundaries. However, the Application Plan in 2006 shows as to Lot 1 that there are nine gum trees (one of which is marked ‘dead gum tree’) on those sections of the boundaries.
  16. [41]
    If that part of Lot 95 SL1116 corresponds to Lot I, then why was the tree marked ‘dead gum tree’ not marked on the ‘Landscape Design’ plan at all? That tree may have been dead in 2002 also, or could have died between 2002 and 2006, but it is not shown at all on the earlier plan. A proper plan would presumably show all trees, whether dead or not, as the later Application Plan did. If the specific trees were of such importance as to form the basis of a condition of development approval, then they all should have been shown on all plans.
  17. [42]
    The Moreton Bay Regional Council advised the neighbours in a letter dated 13 August 2015 as follows:

A condition of approval for the Cluster Housing development on lot 1 SP246846 required a landscape plan to be provided. A landscape plan has been approved for this development, identifying the retention of the particular gum tree amongst others, on the approved plan. No further conditions of approval have made any specific reference to the retention of the tree.

  1. [43]
    That advice of the Council is predicated on the statement that this tree is identified on an approved landscaping plan for retention, as a condition of a development approval. The basic issue remains as to whether that is the case.
  2. [44]
    The Council appears to accept that this tree was one of a number of existing trees that were indicated as required to be retained on an approved landscape plan, on the basis of which the Council approved the initial change of material use. However, such an approved landscape plan, noting a retention requirement, has not been identified, and does not appear on any of the material produced or exhibited, by any of the parties or the Council.
  3. [45]
    There may be an assumption made by Council that as this tree was part of the pre-existing vegetation, that therefore any approved landscaping plan would have included it, and would indicate its retention. That requires however that the plan is accurate, complete, and comprehensive, with suitable notations.
  4. [46]
    The condition requiring a plan to be drawn by a qualified landscape architect or equivalent, indicates that precision and sophistication is needed in such a plan, so that trees can be precisely described and identified as to location and species, and the plan can speak fully on its face by notations.
  5. [47]
    The development permit for a material change of use does not reference ‘all existing trees’ or a similar expression. It refers only in general terms to ‘landscaping’ identified on an approved landscaping plan.
  6. [48]
    There is therefore no copy of any approved landscaping plan before the Tribunal which shows that the planting or maintaining of this particular spotted gum tree was a condition of a development approval at any time.
  7. [49]
    The situation is that no approved landscaping plan requiring the retention of the spotted gum tree is in evidence; and no written condition requiring retention of the tree has been identified.
  8. [50]
    In the absence of an approved landscaping plan which clearly identifies this tree, and requires its retention by specific notation, or any other specific written condition of approval, the Tribunal cannot be satisfied that this particular spotted gum tree is planted or maintained as a condition of a development approval.
  9. [51]
    I therefore find that the tree is not the subject of a condition of a development approval.

Footnotes

[1]Submissions of the tree keepers filed 29 September 2015.

[2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) s 41(2)(c).

[3]Attached to the Response of the tree keepers filed 14 April 2015.

[4]Response of the tree keepers filed 14 April 2015, para 13.

[5]Neighbours submissions filed 8 October 2015.

Close

Editorial Notes

  • Published Case Name:

    Schmidt & Duarte v Freeme

  • Shortened Case Name:

    Schmidt & Duarte v Freeme

  • MNC:

    [2016] QCAT 251

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    12 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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