Lowe v BCG Technical Ltd[2015] QCAT 408

APPEARANCES:

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

What is this matter about?

1. [1]
   Arthur and Eileen Lowe (‘the Lowes’) own a property at Hope Island. BGC Technical Ltd (‘BGC’) owns an adjoining property. The Lowes complain about a number of trees situated on BGC’s property. They filed an application in the Tribunal, following which a tree assessor was appointed and a report prepared. After the Lowes filed their statements of evidence in the Tribunal, potential jurisdictional issues arose. The parties were directed to file in the Tribunal submissions in relation to the Tribunal’s jurisdiction to determine the Lowes’ application.

Background

2. [2]
   The Lowes live in a waterfront property at Hope Island on the Gold Coast. BGC owns an adjoining property. A number of trees grow on BGC’s property close to the boundary fence with the Lowes’ property. The Lowes say that the trees have caused damage to the boundary fence.
3. [3]
   The Lowes say that they engaged in discussions with representatives of BGC over a lengthy period of time in an attempt to resolve the issues relating to the trees and the damage to the fence. Those discussions did not lead to a resolution.
4. [4]
   Eventually in June 2014, the Lowes wrote to the Body Corporate for Rosebank GTP 3033 (‘the body corporate’) requesting the assistance of the body corporate in resolving the issues relating to the trees.
5. [5]
   It is appropriate here to make some observations about the properties in question.
6. [6]
   The Lowes’ property is described as Lot 17 on GTP 3033, County of Ward, Parish of Coomera. BGC’s property is described as Lot 18 on GTP 3033.^[1] There is, before the Tribunal, a copy of Group Titles Plan No. 3033.^[2] Lots 17 and 18 are geographically contiguous.
7. [7]
   Following the request by the Lowes for the body corporate’s assistance, a committee meeting of the body corporate was held on 24 September 2014. It was resolved at that meeting that the body corporate’s facilities manager would hold an on-site meeting with BGC to review and discuss the trees and the damage to the boundary fence.^[3]
8. [8]
   The body corporate’s involvement did not lead to a resolution of the issues in dispute.
9. [9]
   The Lowes subsequently filed an application for a tree dispute in the Tribunal on 24 December 2014.
10. [10]
    The issue of whether the Tribunal has jurisdiction to consider the application has been raised. The parties have been directed to file submissions. The issue now falls for consideration and determination.

What do the parties say?

11. [11]
    The Lowes say that the ‘Rosebank’ scheme is subject to the Building Units and Group Titles Act 1980 (Qld) (‘the BUGTA’) by operation of the transitional provisions in the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’).^[4] They say that the Rosebank scheme is subject to the Sanctuary Cove Resort Act 1985 (Qld) (‘the SCRA’). Although the submissions do not specifically articulate the basis of the application of the SCRA, I accept that the Rosebank scheme is a subsidiary body corporate within the meaning of that term in the SCRA.^[5]
12. [12]
    I therefore accept the submissions by the Lowes that the BUGTA applies in respect of the ‘Rosebank’ scheme.
13. [13]
    The Lowes refer to the obligations imposed upon the body corporate by the BUGTA and specifically s 37.^[6] They also refer to s 123 of the BUGTA and say that by operation of s 123, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDR Act’) applies in respect of the common boundaries between lots in a group titles plan as if the proprietors of the lots were the owners of adjoining land.
14. [14]
    The Lowes say that fencing between common property and scheme lots will normally be the joint responsibility of the body corporate and the lot owner. They contend however that in the present circumstances, the boundary between their property and BGC’s property is a boundary between scheme lot owners and that the body corporate therefore has no responsibility. The BUGTA does not, argue the Lowes, impose upon the body corporate responsibility for repairs to boundary walls between adjoining scheme lots. They say that the body corporate by-laws do not provide for fencing repairs to be carried out.
15. [15]
    The Lowes rely upon the definitions of ‘owner’, ‘adjoining owners’ and ‘adjoining land’ as contained in Chapter 2 of the NDR Act. Chapter 2 deals with dividing fences. The Lowes contend that they are ‘neighbours’ of BGC’s property.
16. [16]
    The Lowes say that the dividing fence between their property and BGC’s property has suffered substantial damage as a result of the trees in dispute, that the fence is on the boundary between two scheme lots and that the trees are situated on one scheme lot and have damaged the fence on the common boundary between the lots.
17. [17]
    The Lowes argue that the combined effect of s 123 BUGTA and the definitions contained in Chapter 2 of the NDR Act of ‘owner,’ ‘adjoining owners’ and ‘adjoining land’ is that the Tribunal has jurisdiction to determine the tree dispute.
18. [18]
    BGC has filed no submissions.

Discussion

19. [19]
    The NDR Act requires a tree keeper to be responsible for the proper care and maintenance of the tree keeper’s tree.^[7] A ‘tree’ is defined.^[8] Land may be ‘affected by a tree’.^[9]  A neighbour may apply to the Tribunal for an order if their land is ‘affected by a tree’.^[10] 
20. [20]
    The Tribunal may make orders it considers appropriate in relation to a tree after giving due consideration to a number of matters.^[11]
21. [21]
    A neighbour is defined.^[12] If land affected by a tree is scheme land under the BUGTA the neighbour is the body corporate for the plan.^[13]
22. [22]
    The Lowes’ property is identified as Lot 17 on GTP 3033, County of Ward, Parish of Coomera. Copies of the certificates of title relating to the Lowes’ property and BGC’s property have not been filed. It is clear however from the material filed by the Lowes that their property is a parcel of land the subject of a plan under the BUGTA.
23. [23]
    Land may be subdivided into lots and common property by the registration of a plan under the BUGTA.^[14]
24. [24]
    Section 123 of the BUGTA relevantly provides:

123 Dividing fences

(1) For the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 the body corporate in respect of a plan shall be deemed to be the owner of the parcel the subject of that plan, other than such part (if any) of that parcel which is the subject of a lease accepted or acquired by the body corporate under section 21.

(2) The provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 apply in respect of the common boundaries between lots in a group titles plan as if the proprietors of the lots were the owners of adjoining land.

25. [25]
    The central question is, what is the scope of s 123 BUGTA by reference to the operation of the NDR Act?
26. [26]
    Section 123(1) is concerned with the parcel of land the subject of a plan. The body corporate is deemed to be the owner of the parcel of land other than such parts of the land which are the subject of a lease or acquired by the body corporate under s 21 BUGTA. Section 21 BUGTA relates to the acquisition by the body corporate of additional common property.
27. [27]
    ‘Parcel’ is defined in the BUGTA as ‘the land comprised in a plan.’^[15] A plan means ‘a building units plan or a group titles plan.’^[16] Accordingly I find that s 123(1) BUGTA applies to the entire parcel of scheme land comprising individual lots and common property.
28. [28]
    Section 123(2) BUGTA is concerned with common boundaries between lots in a group titles plan. In a building units plan, the common boundary of any lot with another lot or with the common property is the centre of the wall, floor or ceiling.^[17] There is no definition of ‘common boundary’ or other guidance as to the meaning of that term contained in the BUGTA relating to group titles plans. The term should be given its ordinary meaning – ‘common’ meaning ‘shared by’ and ‘boundary’ meaning ‘a line that marks the limits of an area.’^[18]
29. [29]
    ‘Common boundary’ is defined in the NDR Act.^[19] The definition is limited to chapter 2 of the NDR Act. As I have noted, Chapter 2 relates to dividing fences. Chapter 3 of the NDR Act relates to trees. Chapters 2 and 3 of the NDR Act are each self contained.
30. [30]
    The definitions of ‘owner for land,’ ‘adjoining owners’ and ‘adjoining land’ are contained in chapter 2 of the NDR Act. Chapter 2 refers to the obligations of ‘owners’ and ‘adjoining owners’ in respect of fencing separating ‘adjoining land’. These provisions do not extend in their application to Chapter 3 of the NDR Act.
31. [31]
    The references in s 123 BUGTA to ‘common boundaries’ and ‘owners’ of ‘adjoining land’ are, in my view, significant.
32. [32]
    The liability of a property owner to contribute to fencing work arises if there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land.^[20] A dividing fence means a fence on the common boundary of adjoining lands.^[21] As I have noted, the definition of ‘common boundary’ in the NDR Act applies only to Chapter 2.
33. [33]
    Section 123 BUGTA was amended upon the enactment of the NDR Act.^[22] Prior to amendment, s 123 BUGTA referred to the Dividing Fences Act 1953 (Qld) rather than the NDR Act.

The application of s 123 BUGTA to the NDR Act

34. [34]
    Section 123 BUGTA specifically relates to the application of the NDR Act. The section heading is ‘Dividing Fences.’ The heading to a section forms part of the provision to which it is a heading if the Act is enacted after 30 June 1991 or the heading is amended or inserted after 30 June 1991.^[23] The BUGTA was enacted prior to 30 June 1991. The heading to s 123 BUGTA was not amended or inserted after 30 June 1991. Accordingly, the heading does not form part of the Act.
35. [35]
    Even without reference to the heading, I am of the view that s 123 BUGTA is clear and unequivocal in its terms and application.
36. [36]
    The application of the provisions of the NDR Act by operation of s 123(2) BUGTA is specifically limited to issues relevant to common boundaries between lots in a group titles plan scheme. The definition of ‘common boundary’ is limited in the NDR Act to dividing fences.
37. [37]
    I should note that Chapter 3 of the NDR Act does make reference to ‘common boundary’:

    • Branches overhanging the common boundary between lots^[24]; and
    • the powers of the Tribunal to direct that a survey be undertaken to identify a tree’s position by reference to the common boundary between lots.^[25]
38. [38]
    The mere fact that Chapter 3 contains these references does not alter my view that s 123(2) BUGTA is limited in its application to dividing fences.
39. [39]
    The concept of a ‘common boundary’ is central to the application of Chapter 2 of the NDR Act. A dividing fence means a fence on the common boundary of adjoining lands.^[26] In contrast, what is central to Chapter 3 of the NDR Act is not the common boundary between lots, but the presence of a ‘tree’ on land which may affect adjoining land.
40. [40]
    Chapter 3 of the NDR Act, rather than referring to adjoining owners, sets out the obligations of ‘tree keepers’ and the rights and entitlements of ‘neighbours’ whose land is ‘affected by a tree.’ Whilst land must adjoin in order to be affected by a tree^[27] it is not the “common boundary” between two parcels of land that is at the heart of Chapter 3. Rather, it is the ‘tree’. In Chapter 3, the common boundary between parcels of land is relevant to the extent that the land must adjoin, branches may overhang the boundary or a tree may be growing on or over the boundary.
41. [41]
    There is not, in my view, any uncertainty arising out of what may appear to be an inconsistency between s 123 BUGTA and the NDR Act. The NDR Act provides that an owner for land in respect of scheme land under the BUGTA or the BCCMA is the body corporate for the plan or community titles scheme.^[28]
42. [42]
    At first blush, this does not appear to sit easily with s 123(2) BUGTA.
43. [43]
    There is however, in my view, no inconsistency. The body corporate for scheme land is the owner for land in circumstances where a dividing fence issue may arise on the common boundary between scheme land and an adjoining parcel of land that is not scheme land. This much is clear from s 14(1) of the NDR Act.
44. [44]
    In circumstances where a dividing fence issue arises between adjoining lot owners within a group titles plan scheme, s 123 BUGTA applies. The result is this: for the purposes of the resolution of the dividing fence issue, the lot owners and not the body corporate are the relevant adjoining owners for the purposes of Chapter 2 of the NDR Act.
45. [45]
    Section 123 BUGTA is limited in its application to dividing fence disputes under chapter 2 of the NDR Act. The provisions of Chapter 2 of the NDR Act insofar as the Act relates to fencing disputes between adjoining group titles plan scheme lot owners under the BUGTA, must be read subject to s.123 BUGTA.
46. [46]
    If the intention of the legislature had been to bring tree disputes within s.123 BUGTA, the opportunity to do so in clear and unequivocal terms presented itself at the time of the amendment to s.123 BUGTA upon the commencement of the NDR Act.  The legislature did not do so.
47. [47]
    That the amendment to the s.123 BUGTA was limited to the omission of the reference to the Dividing Fences Act 1953 and the insertion of the reference to the NDR Act reinforces my view that s.123 BUGTA does not have application in respect of disputes relating to trees under Chapter 3 of the NDR Act.

The NDR Act

48. [48]
    As I have observed, if land affected by a tree is a parcel of land the subject of a plan under the BUGTA, the neighbour is the body corporate for the plan.^[29] 
49. [49]
    The Lowes’ property is a parcel of land the subject of a plan under the BUGTA.^[30] The Lowes are not the Body Corporate for Group Titles Plan 70358. They are therefore not a ‘neighbour’. Only a neighbour may apply to the Tribunal in respect of land affected by a tree.^[31] The Lowes therefore do not have standing to bring the application.^[32]

Conclusion

50. [50]
    If a proceeding is found by the Tribunal to be frivolous, vexatious or misconceived or otherwise lacking in substance, the Tribunal may dismiss or strike out the proceeding.^[33]
51. [51]
    The Lowes do not have standing to bring the application. The application is therefore dismissed.

Orders

1.  The application is dismissed.