Marshall v Rodgers[2022] QCAT 226

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Marshalls live in a house next door to a four dwelling unit complex.  Ms Rodgers resides in, and is the registered owner of, the unit closest to the fence separating the Marshalls’ land and the unit complex.  The Marshalls seek orders against Ms Rodgers under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) in relation to certain trees on the unit complex’s side of the fence.
2. [2]
   Directions were made at a Directions hearing for submissions to be made and for a preliminary issue to be decided on the papers.  The issue is whether Ms Rodgers is the ‘tree-keeper’ for the purposes of the Act and whether the Application should be dismissed or whether the body corporate is the proper respondent.^[1] 
3. [3]
   Submissions have been received.^[2]  I now proceed to decide the preliminary point.  The delay in determining this matter, since the submissions have been filed, is due to resourcing issues.
4. [4]
   The parties were specifically directed to address in their submissions the definition of ‘tree keeper’ in section 48(1)(f) of the Act.  Neither party specifically addressed this matter in any detail.
5. [5]
   Section 62 of the Act provides:

The neighbour may apply, as provided under the QCAT Act to QCAT for an order under section 66.

6. [6]
   Section 49 of the Act relevantly provides:

1. (1)
   Each of the following entities is a neighbour in relation to a particular tree or the tree-keeper for a particular tree—

   1. if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994—
      1. a registered owner of the lot under that Act; and
      2. an occupier of the land;

….

2. (2)
   However, subsection (1)(a)(ii) does not apply for part 4.

7. [7]
   A copy of a title search shows that the Marshalls are registered owners of the land claimed to be affected by trees in the Application.^[3]  I am satisfied the Marshalls are neighbours for the purposes of the Act.
8. [8]
   Section 66 of the Act relevantly provides:

2. (2)
   QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

   1. to prevent serious injury to any person; or
   2. to remedy, restrain or prevent—
      1. serious damage to the neighbour’s land or any property on the neighbour’s land; or
      2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
3. (3)
   However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—

1. the tree rises at least 2.5m above the ground; and
2. the obstruction is—
   1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
   2. (ii) severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.

4. (4)
   Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.
5. (5)
   Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

   1. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

•an order that requires the removal of the tree within 28 days

•an order that requires particular maintenance work on the tree during a particular season every year

•an order that requires particular work to maintain the tree at a particular height, width or shape

2. (b)
   require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
3. (c)
   require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
4. (d)
   authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
5. (e)
   require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
6. (f)
   require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
7. (g)
   require a report by an appropriately qualified arborist.

6. (6)
   In this section—

window includes a glass door, window forming part of a door, skylight or other similar thing.

9. [9]
   Section 48 of the Act relevantly provides:

   1. (1)
      The following person is the tree-keeper for a tree—

……

5. (e)
   if the land on which the tree is situated is common property for a community titles scheme under the Body Corporate and Community Management Act 1977— the body corporate for the community titles scheme;
6. (f)
   if the land on which the tree is situated is common property comprised in a plan under the Building Units and Group Titles Act 1980 —the body corporate for the plan.

……

2. (2)
   Nothing in this chapter confers ownership of a tree.

10. [10]
    The Marshalls’ submissions in essence are that they do not know whether Ms Rodgers or the Body Corporate is the tree-keeper.  Ms Rodgers’ submissions include a letter from a person identified as the secretary of the Body Corporate. He describes the trees and gardens as being within the ‘fenced bounds (sole use areas)’ of each unit and the responsibility of each lot owner.^[4]
11. [11]
    The Marshalls say, if the Body Corporate is the proper respondent, it will cause delay.  Any such delay is unfortunate but the issue for the Tribunal is that the Act sets out requirements before orders can be made. They include that the applicant has ‘made a reasonable effort to reach agreement with the tree-keeper’^[5] and the giving of a copy of the application to the tree-keeper.^[6] 
12. [12]
    Since the submissions were filed the parties have filed statements of evidence in relation to the substantive dispute. Ms Rodgers has attached a copy of the Community Management Statement and a copy of the by-law which grants exclusive use of the courtyard to her.^[7]  Although she says that she accepts that she is the tree-keeper for the purposes of section 48(1)(f), the Tribunal must be satisfied as to the identity of the tree-keeper under the Act.
13. [13]
    A copy of Building Unit Plan no 10330 is in evidence before me.  It shows that the unit complex and the body corporate were originally established under the Building Unit and Group Titles Act 1980 (Qld) (BUGTA). 
14. [14]
    For the purposes of this preliminary point, I find that the trees the subject of the dispute are situated in the fenced courtyard adjoining Ms Rodgers’ lot.  The Building Unit Plan shows Ms Rodgers’ lot in two parts.  Each of those parts have a measured area and solely relate to the building and not the land adjoining.  Ms Rodgers’ statement concedes this point.^[8] 
15. [15]
    Community titles schemes were established in place of many, but not all, building unit plans under BUGTA under transition arrangements in the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act).^[9]  On the face of the Community Management Statement in evidence before me it establishes the body corporate under the BCCM Act as the Body Corporate for Bullima Gardens Community Titles Scheme 5018 (the Body Corporate).
16. [16]
    I find that the land, on which the trees the subject of the dispute are situated, is common property for a community titles scheme under the BCCM Act. 
17. [17]
    The Tribunal has previously found^[10] and I agree that:

An exclusive use by-law attaches to a lot and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of, or other special rights about common property.^[11]  The exclusive use by-law does not affect the status of the land as common property.^[12]

18. [18]
    Although a by-law grants Ms Rodgers exclusive use of the land on which the trees are situation the land legally remains common property. 
19. [19]
    I find that the Body Corporate is the tree-keeper under section 48(1)(e) of the Act and is the party against which proceedings should have been commenced.  Given the transition to the BCCM Act section 48(1)(f) is not applicable.
20. [20]
    The Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that the person should be bound by or have the benefit of the decision in a proceeding or the person’s interest may be affected.^[13]  Such an order may be made on application or of its own initiative.^[14] 
21. [21]
    The tree-keeper of the trees the subject of the dispute is a proper and necessary party. I join the Body Corporate for Bullima Gardens Community Titles Scheme 5018 as a respondent to the proceedings.  I make directions in relation to compliance with the Act and for the future conduct of the Application.
22. [22]
    A party may be removed from a proceeding if the party’s interests are not or are no longer affected by the proceedings.^[15]  Such an order may be made on application or of its own initiative.^[16] 
23. [23]
    Ms Rodgers is a person who has exclusive use rights to the land upon which the trees are situated but is not the tree-keeper under section 48 of the Act.  Ms Rodgers and the Body Corporate maintain that Ms Rodgers is responsible for maintenance of the exclusive use area.  In the absence of detailed submissions on this point, I am satisfied that Ms Rodgers should remain a party.