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  4. 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach - [2023] QCAT 170

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21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach[2023] QCAT 170

21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach[2023] QCAT 170

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola CTS 13135 v Body Corporate for Oceana on Broadbeach CTS 24163 [2023] QCAT 170

PARTIES:

21 Broadbeach Blvd Pty Ltd

(first applicant)

BODY CORPORATE FOR KAROOLA CTS 13135

(second applicant)

v

Body Corporate for Oceana on Broadbeach CTS 24163

(respondent)

APPLICATION NO:

NDR197-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

12 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDER:

The tribunal has jurisdiction.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the tribunal had jurisdiction – whether it was a condition of a development approval that a tree be maintained

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, s 41, s 42

Schmidt & Duarte v Freeme [2016] QCAT 251

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Jurisdiction?

  1. [1]
    For approximately 70 years a Norfolk Island pine tree (Tree) has been growing on the land owned by the Body Corporate for Oceana on Broadbeach CTS 24163, the respondent to these proceedings (tree-keeper).  The bodies corporate of the neighbouring property (neighbour) have applied to this tribunal for an order that the Tree be removed.  The tree-keeper submits that this tribunal has no jurisdiction. 
  2. [2]
    The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Trees Act) provides rules about responsibility for trees so that neighbours are generally able to resolve issues about trees.[1]  It provides for ways in which a person may deal with an issue about a tree affecting the person’s land,[2] including by making an application to this tribunal.
  3. [3]
    The Trees Act does not apply to trees maintained as a condition of a development approval.[3] 
  4. [4]
    The respondent submits that this tribunal does not have jurisdiction to deal with the application because the Tree must be maintained as a condition of Town Planning Consent Permit No. 820/094/011 (Permit) issued by the Gold Coast City Council (GCCC) on 15 December 1994.  In particular, the respondent relies on the following conditions in the Permit:
    1. (a)
      (14) The landscaping is to be established and maintained to the reasonable satisfaction of the Planning and Development Manager at all times;
    2. (b)
      (15) The open space and setback areas are to be landscaped in accordance with a properly prepared planting plan to be submitted to and approved by the Planning and Development Manager prior to the issue of a building approval…;
    3. (c)
      (66) Any tree with a girth of 400mm or more at waist height shall not be removed without first obtaining the consent of the Chief Engineer.  Exceptions will be made in the case of trees within an approved future road reserve or where necessary to install water and sewerage works, drainage lines, etc…..
  5. [5]
    The respondent argues that it is bound to maintain the Tree by the Permit, which attached to the land on which the Tree grows.
  6. [6]
    The applicants concede that the Permit is a development approval under the Trees Act, but argue that the only relevant condition is condition 66.  They submit that condition 66 does not require retention of the Tree because:
    1. (a)
      it is general in nature and does not refer to the Tree;
    2. (b)
      it has flexibility to seek consent to removal of a tree; and
    3. (c)
      in any event, the GCCC has granted permission to remove the Tree.

Chronology

  1. [7]
    Unsurprisingly, given the effluxion of time, there is little in the way of relevant documentary material from the 1990s. 
  2. [8]
    On 15 December 1994 the GCCC issued the Permit.
  3. [9]
    On 22 April 1995 a Building Application was lodged with the GCCC.[4]
  4. [10]
    On 8 August 1996 the manager of statutory planning for the GCCC wrote to the developer’s architect advising that Town Planning and Landscape finals would not be approved until the following requirements were met:
    1. (a)
      removal from below power lines of 2 Norfolk Island pines;
    2. (b)
      removal from Council land of all Norfolk Island pines planted within 3 metres of any fences fronting Broadbeach Boulevard;
    3. (c)
      removal of all Norfolk Island pines fronting Armrick Avenue.[5]
  5. [11]
    The Permit was granted under the Local Government (Planning and Environment) Act 1990 (Qld) (‘LGA’).  The LGA was repealed by Integrated Planning Act 1997 (Qld) (‘IPA’).  In turn the IPA was repealed by the Sustainable Planning Act 2009 (Qld).  In turn the Sustainable Planning Act 2009 (Qld) was repealed by the Planning Act 2016 (Qld) (‘Planning Act’). 

Express conditions of the Permit

  1. [12]
    Condition 66 does not make specific reference to the Tree.  It contemplates, subject to exceptions for practical purposes, no tree with a girth of 400mm or more at waist height could be removed without the consent of the Chief Engineer. 
  2. [13]
    Condition 14 does not make specific reference to the Tree, but requires that the landscaping be maintained to the reasonable satisfaction of the Planning and Development Manager at all times. 
  3. [14]
    Condition 15 does not make specific reference to the Tree, but requires that the open space and setback areas be landscaped in accordance with a properly prepared planting plan to be submitted to and approved by the Planning and Development Manager prior to the issue of a building approval. 
  4. [15]
    The respondent was not able to produce the planting plan approved by the Planning and Development Manager prior to the issue of a building approval.  However, it is clear from the letter of 8 August 1996[6] that the GCCC took an active interest in management of the risk that might be posed by the Norfolk Island pine trees on the site. 
  5. [16]
    I find that it is not a condition of the Permit that the Tree be maintained.  Nor is it a condition of the Permit that any tree be maintained in perpetuity.

Do the drawings lodged with the Building Application impose a condition?

  1. [17]
    The respondent relies on drawings attached to the Building Application lodged with the GCCC to support its argument that the Tree must be maintained as a condition of the Permit.  It argues that the Drawings formed part of the Building Application and complied with the conditions imposed by the Permit. 
  2. [18]
    The Building Application lodged with the GCCC on 22 April 1995 (4 months after the Permit was issued) included:
    1. (a)
      Drawing BA-A-1.03, Level 1 Ground Floor Plan; and
    2. (b)
      Drawing LD-01, Landscape Site Plan.[7]
  3. [19]
    Drawing LD-01, Landscape Site Plan shows more than 30 trees around the perimeter of the site. 
  4. [20]
    Drawing BA-A-1.03, Level 1 Ground Floor Plan is annotated ‘RETAIN EXISTING NORFOLK PINE TREE’.  The unchallenged evidence before me is that the annotation refers to the Tree.[8]
  5. [21]
    The applicant submits that the Building Application is not a ‘development approval’ under the Trees Act.  The Trees Act defines a development approval as a development approval under the Planning Act 2016.[9]  In order to address this submission it is necessary to consider the legislative history of the Planning Act 2016 (Planning Act), which is as follows: 
    1. (a)
      Planning Act 2016

Section 49 Planning Act describes a development approval as

  1. (1)
    …
  1. (a)
    a preliminary approval; or
  1. (b)
    a development permit; or
  1. (c)
    a combination of a preliminary approval and development permit.
  1. (2)
    A preliminary approval is the part of a decision notice for a development application that—
  1. (a)
    approves the development to the extent stated in the decision notice; but
  1. (b)
    does not authorise the carrying out of assessable development.
  1. (3)
    A development permit is the part of a decision notice for a development application that authorises the carrying out of the assessable development to the extent stated in the decision notice.
  1. (4)
    …

Section 49(5) of the Planning Act provides that a reference to a development approval:

  1. (a)
    means the development approval as changed from time to time; and
  1. (b)
    includes the development conditions imposed on the approval.

The Planning Act repealed the Sustainable Planning Act 2009.  The transitional provisions of the Planning Act deal with documents in effect under the repealed Sustainable Planning Act 2009 by providing that a document in effect under the repealed Sustainable Planning Act 2009 continued in effect according to its terms and conditions, even if those terms and conditions could not be imposed under the Planning Act.[10] 

  1. (b)
    Sustainable Planning Act 2009

The Sustainable Planning Act 2009 repealed the Integrated Planning Act 1997 (IPA).[11]  The transitional provisions of the Sustainable Planning Act 2009 dealt with development approvals in force immediately before the commencement of the Sustainable Planning Act 2009.  Development approvals in force under the repealed IPA continued as a development approval under the Sustainable Planning Act 2009.[12]

  1. (c)
    Integrated Planning Act 1997

The IPA repealed the Local Government (Planning and Environment) Act 1990 (LGA).  The IPA gave continuing effect to permits and continuing approvals issued under section 4.13(12) of the LGA.[13]  Permits and continuing approvals and any conditions attached to a continuing approval had effect as if they were development approvals issued under the IPA.

  1. (d)
    Local Government (Planning and Environment) Act 1990

Section 4.12 of the LGA allowed a person to apply to the local government for a town planning consent permit.  Section 4.13 of the LGA set out the potential contents of a permit that might be issued under section 4.12, which included identification of any conditions attaching to the permit. 

The right to use premises and to erect, re-erect or modify any structures for the purposes specified in the permit issued under section 4.12, subject to the conditions in the permit, attached to the land and bound successors in title and continued in force until revoked under section 4.14, lapsed, the use ceased to be lawful or was superseded by another use.[14]

  1. [22]
    From this history it can be seen that the effect of the transitional provisions of successive Acts is that the Permit remains in effect and falls within the definition of a development approval under the Trees Act.  However, even if I assume that the Building Application was approved as submitted[15] the annotation on Drawing BA-A-1.03 is not part of the Permit.  Accordingly, it is not part of the development approval under the Trees Act. 
  2. [23]
    I find that the annotations on the drawings attached to the Building Application, lodged with the GCCC 5 months after the Permit was granted, are not conditions of the Permit. 

Alternatively

  1. [24]
    If I am wrong and maintenance of the Tree is a condition of the Permit, or if the Building Application is a development approval, I adopt the approach of Member Paratz in Schmidt & Duarte v Freeme[16] that the condition would not prohibit the removal of a tree, but rather regulate it.  He took the view, in a case in which the development approval had been given 14 years prior to the application, that as vegetation is a living organism, consideration must be given to changes over time.  In his view while retention of a tree may have been perfectly reasonable in 2002, it may be quite inappropriate in 2016, due to the growth and behaviour of the tree and the change of the risk profile over time.[17]  He recognised the possibility that trees maintained under a landscape plan may need replacing due to mortality, accident, or intentional removal and that periodic review was implicit in the maintenance condition in the Development Permit, which anticipated that replacement planting may be permitted throughout the life of the development.[18]
  2. [25]
    In the context of this application, it is implicit in Condition 14 of the Permit, which requires that the landscaping be maintained to the reasonable satisfaction of the Planning and Development Manager at all times, that consideration must be given to changes over time.  This is demonstrated by the fact that in 1996 the GCCC ordered the removal of a number of Norfolk Island pines prior to final approval.  While retention of the Tree may have been reasonable in 1994, it may be inappropriate in 2023. 
  3. [26]
    I find this tribunal has jurisdiction.

Footnotes

[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 3(a).

[2]Ibid s 41(2).

[3]ibid s 42(4)(c).

[4]Statement of Ronald Frigo, Ex RWF-10.

[5]Statement of Ronald Frigo, Ex RWF-10, last page.

[6]Statement of Ronald Frigo, Ex RWF-10, last page.

[7]Statement of Ronald Frigo, Ex RWF-10.

[8]Ibid [20(f)].

[9]Ibid Dictionary

[10]Planning Act 2016, s 286.

[11]Sustainable Planning Act 2009, s 764.

[12]Sustainable Planning Act 2009, s 801.

[13]Integrated Planning Act 1997, s 6.1.23.

[14]Local Government (Planning and Environment) Act 1990, s 4.13(16).

[15]The GCCC cannot produce a copy of the Building Approval.

[16][2016] QCAT 251.

[17][2016] QCAT 251, [33] – [34].

[18][2016] QCAT 251, [35].

Close

Editorial Notes

  • Published Case Name:

    21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach

  • Shortened Case Name:

    21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach

  • MNC:

    [2023] QCAT 170

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    12 Apr 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Schmidt & Duarte v Freeme [2016] QCAT 251
4 citations
Jump To
Cite 1 - [2016] QCAT 251
Cite 2 - [2016] QCAT 251
Cite 3 - [2016] QCAT 251
Cite 4 - [2016] QCAT 251

Cases Citing

Case NameFull CitationFrequency
Body Corporate for Oceana on Broadbeach v 21 Broadbeach Blvd Pty Ltd [2024] QCATA 652 citations
1

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