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Grant v McKenzie-McHarg[2016] QCAT 134

Grant v McKenzie-McHarg[2016] QCAT 134

CITATION:

Grant & Anor v McKenzie-McHarg & Anor [2016] QCAT 134

PARTIES:

Peter Thomas Grant

Glenda Ann Grant

(Applicants)

 

v

 

Hugh William McKenzie-McHarg

La Vie Body Corporate CTS 47756

(Respondents)

APPLICATION NUMBER:

NDR164-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

27 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for a tree dispute is dismissed.

CATCHWORDS:

TREE DISPUTE – whether tree planted or maintained as a condition of a development approval – where development approval amended – where tree planted in accordance with amended development approval – whether tree keeper bound by original development approval – whether “development approval” has a restricted meaning

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 41, 42, 46, 48, 59, 62, 66, 67, 70, Schedule

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47

Sustainable Planning Act 2009 (Qld) ss 7, 334, Schedule 3

Sustainable Planning Regulation 2009 (Qld) Schedule 3

Mills v Meeking (1990) 169 CLR 214

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 application about?

  1. [1]
    Mr and Mrs Grant live in a duplex at Palm Beach on the Gold Coast. When they purchased their home, Mr and Mrs Grant enjoyed views of the beach and ocean. At the time they took possession, these views were obstructed, to some extent, by a multi-level apartment building. Subsequent to Mr and Mrs Grant moving into their home, another multi-story dwelling was constructed between their property and the beach. Whilst their views of the beach and ocean were further obstructed, a view corridor remained.
  2. [2]
    Associated with the construction of the new building, a pandanus tree (the tree) has been planted within the view corridor. Mr and Mrs Grant say that the tree severely obstructs their view and they have filed in the Tribunal an application for a tree dispute. The respondent body corporate says that the tree has been planted as a condition of a development approval and that the Tribunal has no jurisdiction to hear and determine the application by the Grants.
  3. [3]
    The Tribunal must determine, as a preliminary issue, whether it has jurisdiction to hear and determine Mr and Mrs Grant’s application for a tree dispute.

The nature of the dispute and what the parties say

  1. [4]
    Mr and Mrs Grant say that the tree has been planted on adjoining land owned by the body corporate. They say that the tree is 4.5 metres high and has a span of 4.7 metres. The tree has been planted 2.2 metres above ground level. Mr and Mrs Grant say that their ocean views are through a five metre gap between two adjoining multi-level apartment buildings and that the tree blocks 86% of their view. Mr and Mrs Grant say that when fully grown the tree will block all views that they have of the beach and ocean.[1]
  2. [5]
    Mr and Mrs Grant say that the obstruction of their view has led to a significant reduction in the value of their property.[2]
  3. [6]
    The respondents say that the tree has been planted as a condition of a development approval granted by the Gold Coast City Council. They say that when approving the landscaping upon the completion of the building works, the Gold Coast City Council accepted the deletion of several of the mature trees along the southern boundary. They say that the tree, which is at the eastern entry of the property, provides privacy screening from the main open staircase of the adjoining three storey walk-up flats, which are on the southern boundary.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’)

  1. [7]
    Chapter 3 of the NDA deals with trees. A tree keeper is responsible for the proper care and maintenance of the tree keeper’s tree.[3] A ‘tree’ is defined.[4] Land may be ‘affected by a tree’.[5]  A neighbour may apply to the Tribunal for an order if their land is ‘affected by a tree’.[6] 
  2. [8]
    The Tribunal may make orders it considers appropriate in relation to a tree after giving due consideration to a number of matters.[7]
  3. [9]
    The NDA does not apply to trees planted or maintained: under an order of a court or Tribunal;[8] as a condition of a development approval.[9] Accordingly, any such tree is exempt from the operation of the NDA.
  4. [10]
    Development approval is defined.[10] Schedule 3 of the Sustainable Planning Act 2009 (the SPA) defines ‘development approval’ as:
  1. (a)
    a decision notice or a negotiated decision notice that—
  1. (i)
    approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
  1. (ii)
    is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or
  1. (b)
    a deemed approval, including any conditions applying to it.
  1. [11]
    Development’ is defined.[11] A ‘development application’ means an application for a development approval.[12] A ‘decision notice’ is defined.[13]Assessable development’ means development prescribed under s 232(1)(c) of the Sustainable Planning Act 2009 (Qld) (‘SPA’) to be assessable development.[14]

Discussion

  1. [12]
    On 3 July 2014, the Gold Coast City Council approved a development permit for Operational Works for Landscape on the land on which the tree is situated subject to conditions set out in a Decision Notice to Applicant (the development approval).[15]
  2. [13]
    The development approval required the landscaping works to be carried out in accordance with approved landscaping plans identified as LS-1 and LS-2 (landscaping plan LS-1 and landscaping plan LS-2).[16]  The landscaping plans are attached to the development approval. The development approval refers to the attached landscaping plans as ‘amended in red’. I infer from this that there are prior landscaping plans. If there are prior landscaping plans, they are not relevant to the present application before the Tribunal.
  3. [14]
    There is a tree identified on landscaping plan LS-1 as ‘1 x DYP LUT’. The plant schedule on landscaping plan LS-2 identifies ‘DYP LUT’ as Dypsis Lutescens. Dypsis lutescens is more commonly called a golden cane palm.
  4. [15]
    On 15 September 2015, the Gold Coast City Council approved a request to change the development approval (the amended development approval). The amended development approval required the landscape works to be carried out in accordance with amended landscaping plans LS-1 and LS-2[17] (amended landscaping plan LS-1 and amended landscaping plan LS-2). On amended landscaping plan LS-1, the description of the tree identified as ‘1 x DYP LUT’ on landscaping plan LS-1 is changed to ‘1 x PAN PEN (EX GND)’. In the plant schedule on amended landscaping plan LS-2, ‘PAN PEN’ is identified as Pandanus Pendunculatus. The minimum pot size is identified as ‘EX GND’ which I take to mean the plant has been growing in the ground rather than in a pot before being transplanted to the site.
  5. [16]
    It is common ground that the tree identified in the amended development approval as the Pandanus Pendunculatus is the tree. Mr and Mrs Grant say that they complained to the Gold Coast City Council about the amended development approval and the amendment to just one tree on the landscaping plans. Mr and Mrs Grant say that they requested the Gold Coast City Council to consider whether, by amending the development approval in respect of the tree, the Council had prevented Mr and Mrs Grant from pursuing an application for a tree dispute in the Tribunal.
  6. [17]
    Section 42(4) NDA, say Mr and Mrs Grant, refers to development approval conditions ‘covering such matters as screening purposes, existing trees, protection orders, planting compatible to surrounding development/street-scape or the like.[18] What Mr and Mrs Grant contend for is a restricted meaning of the circumstances in which a tree planted or maintained as a condition of a development approval is exempt from the NDA. 
  7. [18]
    Neither the definition of development approval in the NDA, the SPA or s 42(4)(c) NDA are restricted or otherwise qualified as contended for by Mr and Mrs Grant. If the language of a statute is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended.[19] The language of s 42(4)(c) NDA is neither ambiguous nor uncertain. It should be given its ordinary meaning. I do not accept the submission by Mr and Mrs Grant that the section should be given a restricted meaning as contended for.
  8. [19]
    Mr and Mrs Grant say that the tree, when planted, did not comply with the development approval. It is correct that the development approval refers to a golden cane palm. The amended development approval however refers to a pandanus pendunculatis. It is not argued by Mr and Mrs Grant that it is the pandanus pendunculatis that has been planted.
  9. [20]
    Mr and Mrs Grant in effect argue that the body corporate should be bound by the original development approval. I do not accept this argument. An application to amend the development approval has been made and granted by the Gold Coast City Council. A modified decision notice was issued by the Gold Coast City Council on 15 September 2015. The modified decision notice attaches the relevant development approval conditions. The modified decision attaching the conditions is the development approval for the purposes of s 42(4)(c) NDA. If Mr and Mrs Grant wish to take issue regarding the process relating to the amendment of the development approval they will need to pursue that matter in another place. 
  10. [21]
    Mr and Mrs Grant say that the tree fails at least two of the assessment criteria ‘used in the new approval decision making’. These criteria, say Mr and Mrs Grant, require that the tree ‘not affect or impact directly adjacent infrastructure (including property boundary fencing) at the time of planting and at maturity’ and to ‘ensure the plant species are appropriate for the specific location of the site.[20]
  11. [22]
    It is unclear what assessment criteria Mr and Mrs Grant are referring to. In any event, if Mr and Mrs Grant are unhappy with the process undertaken by the Gold Coast City Council in relation to the granting of the amended development approval, this is not a matter in relation to which the Tribunal has jurisdiction. The powers of the Tribunal in relation to disputes relating to trees are clearly circumscribed by the NDA. The Tribunal cannot go behind the amended development approval.
  12. [23]
    Mr and Mrs Grant outline a number of matters which they say the Tribunal must consider in determining whether it has jurisdiction. Those matters are set out at s 73(1) NDA. Section 73 is contained in Chapter 3, Part 5, Division 4 NDA. Division 4 sets out the matters for the Tribunal to consider in deciding an application for an order under s 66.[21] An order under s 66 can only be made if the Tribunal is satisfied that land is affected by a tree.[22] For land to be affected by a tree, the NDA must apply to the tree.[23] Accordingly, the matters referred to by Mr and Mrs Grant are not relevant absent a finding that the tree is a “tree” to which the NDA applies.
  13. [24]
    Mr and Mrs Grant also seek to rely upon the powers conferred on the Tribunal by s 67 NDA. That section only has application in circumstances where the Tribunal is satisfied that there is a genuine dispute. In order for there to be a genuine dispute the subject of an application to the Tribunal, there must first be a tree to which the NDA applies.
  14. [25]
    I find that the planting and maintenance of the tree is a condition of the amended development approval. The amended development approval is a development approval under the SPA and therefore a development approval for the purposes of s 42(4)(c) NDA. As such, the NDA does not apply to the tree.
  15. [26]
    The Tribunal does not have jurisdiction in relation to the tree. Where a proceeding is misconceived or lacking in substance, the Tribunal may order that the proceeding be dismissed.[24] 
  16. [27]
    The application for a tree dispute is dismissed.

Footnotes

[1] Application 10 November 2015.

[2] Letter Jason Taylor to applicants 13 October 2015.

[3] NDA s 41(1).

[4] Ibid sch, s 48.

[5] NDA s 46.

[6] Ibid s 62.

[7] Ibid s 66.

[8] Ibid s 42(4)(b). 

[9] Ibid s 42(4)(c).

[10] Ibid sch.

[11] SPA s 7.

[12] Ibid sch 3

[13] Ibid sch 3 – referring to s 334(1).

[14] Ibid; Sustainable Planning Regulation 2009 (Qld) sch 3.

[15] Development approval 3 July 2014.

[16] Ibid at [1].

[17] Amended landscaping plans 28 August 2015.

[18] Applicant’s submissions 4 March 2015.

[19] Mills v Meeking (1990) 169 CLR 214.

[20] Applicants’ submissions 5 April 2016.

[21] NDA s 70(1).

[22] Ibid s 59.

[23] Ibid s 42.

[24] QCAT Act ss 47(1)-(2).

Close

Editorial Notes

  • Published Case Name:

    Grant & Anor v McKenzie-McHarg & Anor

  • Shortened Case Name:

    Grant v McKenzie-McHarg

  • MNC:

    [2016] QCAT 134

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    27 May 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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