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Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567[2024] QCAT 287

Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567[2024] QCAT 287

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567 [2024] QCAT 287

PARTIES:

MATTHEW JENKIN

(applicant)

v

BODY CORPORATE FOR GEMSTONE – STONES CORNER CTS 50567

(respondent)

APPLICATION NO/S:

NDR220-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

15 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Proceeding dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where lot owner in group titles scheme filed application for a tree dispute naming body corporate as respondent – where subject tree situated on common property – where the Body Corporate contends that the dispute cannot be determined by the Tribunal on the basis that the Body Corporate is the ‘neighbour’ as the tree is situated on ‘scheme land’ – whether the dispute falls within the meaning of  ‘dispute’ as that term is defined in s 227 of the Body Corporate and Community Management Act 1997 (Qld)

Body Corporate and Community Management Act 1997 (Qld), s 10, s 227, s 229, s 311

Land Title Act 1994 (Qld), s 4

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, 5, s 14, s 48, s 49, s 62

Black v Summer Waters Body Corporate CTS 19297 [2022] QCATA 067

Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39

Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Titles Scheme 33127 (2021) 9 QR 90

Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2

Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors [2019] QCAT 373

Dunstan & Anor v Hope Island Resort Principal Body Corporate (PBC) [2024] QCATA 20

Lowe v BGC Technical [2016] QCATA 124

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)

Applicant:

Self represented

Respondent:

Mahoneys

REASONS FOR DECISION

What is this decision about?

  1. [1]
    This proceeding is about a tree dispute. Mr Jenkin is the owner of a lot in a scheme of which the respondent is the body corporate. Mr Jenkin says that trees situated on the common property of the scheme affect his lot. Mr Jenkin has commenced a proceeding for a tree dispute.
  2. [2]
    The Body Corporate has applied to dismiss the proceeding. The application falls to be determined on the papers.

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

  1. [3]
    The relevant enabling Act is the ND Act.
  2. [4]
    A ‘neighbour’ may apply to QCAT for an order about a tree which is said to affect the neighbour’s land.[1] Section 49 of the ND Act provides that a ‘neighbour’ is:
    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. if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997 (‘BCCM Act’) - the body corporate for the community titles scheme;
    3. if land affected by the tree is a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980 - the body corporate for the plan.[2]
  3. [5]
    A ‘tree keeper’ is defined in s 48(1) of the ND Act as, inter alia:
    1. if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994—the registered owner of the lot under that Act;[3]
    2. 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 1997—the body corporate for the community titles scheme.[4]
  4. [6]
    Section 311(1) of the BCCM Act provides that the Body Corporate is taken to be the owner of the scheme land for the ND Act. ‘Scheme land’ is given the meaning at s 10 of the BCCM Act. Section 10 provides that a ‘community titles scheme’ is a single community management statement recorded by the registrar identifying land (the scheme land) and the scheme land.[5] Land may be identified as scheme land only if it consists of 2 or more lots and other land (the common property for the community titles scheme) that is not included in a lot.[6]
  5. [7]
    Under the Land Title Act 1994 (Qld) (‘Land Title Act’) a ‘lot’ means: a separate, distinct parcel of land created on the registration of a plan of subdivision, or the recording of particulars of an instrument, and includes a lot under the Building Units and Group Titles Act 1980 (Qld).[7] The BCCM Act defines a ‘lot’ as: a lot under the Land Title Act, but if the lot is included in a community titles scheme other than a basic scheme, the lot could be another community titles scheme.[8]

What do the parties say?

  1. [8]
    The Body Corporate says that Mr Jenkin is not a ‘neighbour’ that he is not a registered owner or occupier of a lot under the Land Title Act 1994 and he therefore lacks standing to bring the proceeding.
  2. [9]
    The Body Corporate relies upon s 311 of the BCCM Act to which I have earlier referred. It is useful to refer to the provision in full:

311Body corporate to be taken to be owner of parcel for certain Acts etc.

  1. The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts—
  • Land Act 1994
  • Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
  1. For applying subsection (1) to a layered arrangement of community titles schemes, the body corporate for the principal scheme for the arrangement, and not the bodies corporate for the community titles schemes that are subsidiary schemes for the principal scheme, is taken to be the owner of scheme land for the principal scheme.
  2. However, for the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land.

Examples—

A layered arrangement of community titles schemes consists of a principal scheme (scheme A) which in turn includes 2 basic schemes (scheme B and scheme C), and, of course, the common property for scheme A.

  • If a matter under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 concerns a boundary between scheme land for scheme A and a lot (lot X) that is not scheme land for scheme A or another community titles scheme, the owners are the body corporate for scheme A and the registered owner of lot X.
  • If a matter under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 concerns a boundary between scheme land for scheme B and scheme land for scheme C, the owners are the body corporate for scheme B and the body corporate for scheme C. This will apply even if the length of boundary that is of concern happens also to be the boundary between a lot included in scheme B and a lot included in scheme C.
  • If a matter under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 concerns a boundary between a lot (lot Y) included in scheme B and another lot (lot Z) included in scheme B, the owners are the owner of lot Y and the owner of lot Z.
  1. [10]
    The Body Corporate says that it operates as a community titles scheme under the BCCM Act and as such is the owner of scheme land and also the owner of the applicant’s lot.
  2. [11]
    The Body Corporate says that even if Mr Jenkin is a ‘neighbour’ as that term is defined in the ND Act, the dispute was required to be referred for resolution in accordance with Chapter 6 of the BCCM Act.
  3. [12]
    Mr Jenkin says that the application was not filed ‘within the 28 day timeframe’. He says that he is the registered owner of a lot under the Land Title Act 1994 and therefore a ‘neighbour’ for the purposes of s 49(1) of the ND Act.  Mr Jenkin says that the trees are situated on common property which is scheme land, and that the common property adjoins his lot.

Consideration

  1. [13]
    As may be seen from the definitions of ‘neighbour’ and ‘tree keeper’ a body corporate may be a ‘tree keeper’ only in respect of trees situated on common property, however may be a ‘neighbour’ if the land affected by the tree is ‘scheme land’. Scheme land comprises the lots in the scheme and the common property. It is on this basis that the Body Corporate says that the applicant is not a ‘neighbour’.
  2. [14]
    Section 311 of the BCCM Act is concerned with the ‘owner’ of scheme land for the purposes of the ND Act. By s 14(1)(e) of the ND Act, an ‘owner’ for land is: if the land is scheme land under the Body Corporate and Community Management Act 1997—the body corporate for the community titles scheme. However, s 14(1)(e) is only relevant for the purposes of chapter 2 of the ND Act which is concerned with dividing fences, and not chapter 3 which deals with trees. There is no equivalent to s 14 of the ND Act to be found in chapter 3. Furthermore, s 49 of the ND Act is concerned with who is a ‘neighbour’, and not who is an ‘owner’. Accordingly, s 311 has no application in determining who is a ‘neighbour’.
  3. [15]
    In the Explanatory Notes to the Bill, reference is made to amendments to (now) s 48(1)(e) of the Act. As originally drafted s 48(1)(e) provided that the body corporate was the tree keeper in respect of a tree situated on ‘scheme land’, which includes not only the common property but the lots in the scheme. The Explanatory Notes state that the intention of the clause was to capture the owners of common property only and that the registered owners of individual lots in the scheme were included in clause 48(1)(a) of the Bill. Section 48(1)(e) of the Act reflects this amendment.
  4. [16]
    The amendment to (now) s 48(1)(e) of the Act is not reflected in s 49 which defines ‘neighbour’. A ‘neighbour’ includes a registered owner of a lot recorded in the freehold land register under the Land Title Act 1994. A neighbour also includes the body corporate for a scheme if the land affected by a tree is ‘scheme land’.
  5. [17]
    In Lowe v BGC Technical[9] the Appeal Tribunal considered the meaning of s 49:
  1. [34]
    Section 49 when defining who ‘is a neighbour’ says that ‘each of the entities’ listed is a neighbour. Use of the word ‘each’ suggests that more than one entity can be ‘a neighbour’. It does not, for example, use words like ‘any one of the following’ which would lead to the conclusion that there can only be one neighbour. It is possible that, for a particular tree or the tree keeper of a particular tree, there may be more than one ‘neighbour’ who has standing to apply under s 62.
  2. [35]
    If both the registered owner and the Body Corporate are affected and the Body Corporate elects not to bring an application there would be a serious injustice to the registered owner of land (or a lot) if the registered owner was denied standing. An interpretation of s 49 which excludes the registered owner of land (or a lot) that is a parcel of land the subject of a plan under the BUGT Act is not consistent with the language and purpose of the provisions of the ND Act viewed as a whole.43 The objectives of the ND Act, set out under s 3 include, amongst others, to resolve issues about dividing fences and trees; and ‘facilitate resolution of any disputes’ about dividing fences and trees that ‘do arise between neighbours’.
  3. [36]
    The aim of s 49 is clearly to ensure that any person affected by a tree has the right to apply. Another example of this can be found in the words of s 49(1)(a)(i) and s 49(1)(a)(ii) where both the owner and occupier can be neighbours and are entitled to apply.
  4. [37]
    Section 49 of the ND Act must be read together with s 46 which sets out the circumstances in which ‘land is affected by a tree’. This is because s 49 refers to ‘land affected by the tree’.
  5. [38]
    The circumstances under which land is affected by a tree, includes if there is serious damage to the land; and substantial and an unreasonable interference with the use and enjoyment of the land. This may include a situation where (as in the present matter) the use and enjoyment of the registered owner’s land (or lot) is ‘affected by a tree’ because there is a boundary fence damaged by trees and there may be consequences (to the registered owner’s use and enjoyment of the land) as a result of such damage.
  1. [18]
    The decision in Lowe has application regardless of whether land affected by a tree is scheme land under the BCCM Act or a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980 (Qld).[10] As explained in Lowe, each of the persons or entities referred to in s 49(1) of the ND Act is a ‘neighbour’. The fact that a body corporate may be a neighbour does not preclude an individual lot owner in a scheme from also being neighbour in respect of a particular tree. It is not difficult to envisage such a scenario. For example, one or more lots in a scheme are adjacent to a separate parcel of land on which a tree is situated and the tree is said to affect the lots. If, as pressed by the Body Corporate in the present application, only the body corporate may be the neighbour where scheme land is affected by a tree, the individual lot owners would have no recourse under the ND Act if the body corporate elected not to bring a proceeding under the Act. And it is not difficult to envisage a scenario in which lot owners would not authorise the commencement of a proceeding in the Tribunal, and commit the resources of the body corporate to such a proceeding, in circumstances where only a small number of lots are affected by a tree. If s 49 operated as contended for by the Body Corporate, a lot owner would be precluded from exercising the right to bring an application for a tree dispute as a ‘neighbour’ within the meaning of s 49(1)(a)(i) of the ND Act.
  2. [19]
    The construction of s 49 preferred by the Appeal Tribunal in Lowe is consistent with the meaning of ‘tree keeper’ in s 48 of the Act. A body corporate can only be a tree keeper in respect of a tree situated on common property. A body corporate can hardly commence a proceeding against itself in respect of a tree said to affect common property. As I have observed, adopting the construction of s 49 pressed by the Body Corporate would leave a lot owner in a scheme without any recourse in respect of a tree on common property said to affect the owner’s lot. Adopting the reasoning in Lowe, and in the absence of an express legislative intent, s 49 cannot be construed to restrict the right of a lot owner whose lot is affected by a tree to bring a proceeding in the Tribunal.  The injustice of such an outcome was recognised by the Appeal Tribunal in Dunstan & Anor v Hope Island Resort Principal Body Corporate (PBC).[11]
  3. [20]
    The Body Corporate says that where, as here, the tree is situated on common property and the neighbour is a lot owner, the provisions of the BCCM Act apply and confer exclusive jurisdiction in respect of the dispute.
  4. [21]
    Section 5 of the ND Act provides: Unless otherwise expressly provided for in this Act, this Act does not affect the operation of another Act or law. Apart from s 48 and s 49 to which I have referred, the only other reference to the BCCM Act found in the ND Act is restricted to chapter 2 dealing with dividing fences.
  5. [22]
    Section 227(1)(b) of the BCCM Act defines a ‘dispute’ as, inter alia: a dispute between the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme. Section 229(2) of the BCCM Act provides that the only remedy for a ‘complex dispute’ is by way of an order of a specialist adjudicator under chapter 6 or an order of QCAT exercising the Tribunal’s original jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) or an order of the Appeal Tribunal on appeal from a specialist adjudicator or QCAT on a question of law. A ‘complex dispute’ is defined.[12] It is sufficient for present purposes to observe that a dispute between a lot owner and a body corporate about a tree on common property does not fall within the meaning of a ‘complex dispute’.
  6. [23]
    Section 229(3) of the BCCM Act provides that the only remedy for a dispute that is not a complex dispute is the resolution of the dispute by a dispute resolution process or an order of the appeal Tribunal on appeal from an adjudicator on a question of law.[13]
  7. [24]
    In Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Titles Scheme 33127[14] Daubney J stated:

It seems, therefore, that the proper way of reading s 227 is to understand the reference to “dispute” to being a dispute between a body corporate and an owner of a lot in their respective capacities in that regard. This present dispute is not a dispute involving the Applicant qua owner of a lot in the scheme, and it is therefore not a “dispute” for the purposes of s 227 BCCMA. Accordingly, it does not fall under the exclusive dispute resolution provisions provided for in s 229, and, this Court has jurisdiction to hear and determine the present application.

  1. [25]
    As may be seen from the foregoing, s 229 of the BCCM Act provides for an exclusive jurisdiction in respect of disputes falling within s 227 of the BCCM Act.
  2. [26]
    Whether s 227 and s 229 of the BCCM Act operate to prevent a lot owner, relying on the ND Act, from bringing a proceeding in the Tribunal against a body corporate in respect of a tree situated on common property has not been, as far as I have been able to ascertain, the subject of Tribunal or judicial consideration.
  3. [27]
    In Black v Summer Waters Body Corporate CTS 19297[15] the Appeal Tribunal considered the interaction between the dispute resolution provisions in the BCCM Act and the application of the ND Act. Black involved an appeal from a decision by an Adjudicator in the Office of the Commissioner for Body Corporate and Community Management. The dispute was between a lot owner and the body corporate concerning a fence on the boundary between the lot and the common property. The appellant said that the Adjudicator did not have jurisdiction to decide the dispute, arguing that the dispute was required to be determined by the Tribunal applying the provisions of the ND Act. The Appeal Tribunal rejected the appellant’s contention, stating:

In my view, in order to ground a conclusion that the NDA denies jurisdiction to determine a dispute that would otherwise fall within the dispute resolution processes under the BCCMA, that would need to be made plain on a proper construction of the NDA. I consider that the NDA, on its proper construction, does not support such a conclusion and the Adjudicator was correct in finding that the NDA did not operate to preclude the Adjudicator from determining the dispute about the Fence.

  1. [28]
    As the Appeal Tribunal noted in Black there is nothing in the ND Act conferring upon the Tribunal exclusive jurisdiction in respect of fence disputes. It should be added that the ND Act does not confer upon the Tribunal exclusive jurisdiction in respect of tree disputes.
  2. [29]
    Apart from the definition in schedule 6, the BCCM Act does not further clarify what a ‘dispute’ is. In Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors[16] the Tribunal stated:

The definition of “dispute” in Schedule 6 is descriptive. It provides that dispute generally, includes complaint (which is not defined) and, for Chapter 6, see s 227. The definition is therefore unconfined, except that it must include the complaint.

  1. [30]
    This approach was followed in Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd[17] where it was stated:

I also accept as a broad proposition the finding by Member Traves at [53] that the issue of what forms part of the “dispute” for the purposes of s 149B is fundamental to such applications as this and that “the definition of “dispute” in Schedule 6 is descriptive. It provides that dispute generally, includes complaint (which is not defined) and, for Chapter 6, see s 227. The definition is therefore unconfined, except that it must include the complaint. The concept in the context of s 149B has been approached broadly in the Tribunal so as to include the power to make injunctions and declarations regarding whether a resolution to terminate a caretaker contract was valid.

  1. [31]
    Although Dream Suburbs and Body Corporate for the Lakes-Cairns involved a consideration of s 149B and the meaning of a ‘complex dispute’, the approach taken in those cases to the meaning of ‘dispute’ is directly relevant in the present case. The term should be construed broadly and consistently with the objects of the BCCM Act which include ensuring that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes[18] and providing an efficient and effective dispute resolution process.[19]
  2. [32]
    An adjudicator has broad powers to resolve a dispute. The Adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about inter alia, a claimed or anticipated contravention of the BCCM Act or the community management statement or the exercise of rights or powers, or the performance of duties, under the BCCM Act or the community management statement. This clearly encompasses the obligation imposed on the Body Corporate to maintain the common property.[20]
  3. [33]
    A dispute between a lot owner in a scheme and the body corporate relating to a tree situated on common property is therefore a dispute within the meaning of s 227(1)(b) of the BCCM Act.
  4. [34]
    It follows from the foregoing that the dispute between Mr Jenkin and the Body Corporate is a dispute for the purposes of s 227(1)(b) of the BCCM Act, the only remedy for which is the resolution of the dispute by a dispute resolution process or an order of the appeal Tribunal on appeal from an adjudicator on a question of law.
  5. [35]
    The Tribunal does not have jurisdiction to determine the dispute between the parties, at least not in its present form. In the absence of jurisdiction the proceeding must be dismissed pursuant to s 47 of the QCAT Act on the basis it is misconceived and lacks substance.
  6. [36]
    I order accordingly.
  7. [37]
    Mr Jenkin is not left without a remedy. It is however a remedy he must pursue in a different forum.

Footnotes

[1]ND Act, s 62(1).

[2]Ibid, s 49(1).

[3]Ibid, s 48(1)(a).

[4]Ibid, s 48(1)(e).

[5]BCCM Act, s 10(1), schedule 6 – definition of ‘scheme land’.

[6]Ibid, s 10(2).

[7]Land Title Act, s 4, schedule 2 – definition of ‘lot’.

[8]BCCM Act, schedule 6 – definition of ‘lot’.

[9][2016] QCATA 124 (‘Lowe’).

[10]In Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2, the Tribunal held that the owner of a lot created under the BUGT Act was not the registered owner of a lot under the Land Title Act 1994. Note however s 28 of the Land Title Act and the definition of ‘lot’ which includes a lot created under the BUGT Act. 

[11][2024] QCATA 20.

[12]BCCM Act, schedule 6, Dictionary.

[13]Section 229(3) is subject to s 229A which is not relevant for present purposes.

[14](2021) 9 QR 90.

[15][2022] QCATA 067.

[16][2019] QCAT 373 (‘Dream Suburb’).

[17][2023] QCAT 39 (‘Body Corporate for the Lakes-Cairns’).

[18]BCCM Act, s 4(e).

[19]Ibid, s 4(i).

[20]BCCM Act, s 152, Accommodation Module, s 170.

Close

Editorial Notes

  • Published Case Name:

    Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567

  • Shortened Case Name:

    Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567

  • MNC:

    [2024] QCAT 287

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    15 Jul 2024

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
Black v Summer Waters Body Corporate CTS 19297 [2022] QCATA 67
2 citations
Jump To
Cite 1 - [2022] QCATA 67
Cite 2 - [2022] QCATA 67
Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39
2 citations
Jump To
Cite 1 - [2023] QCAT 39
Cite 2 - [2023] QCAT 39
Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Title Scheme 33127(2021) 9 QR 90; [2021] QSC 263
2 citations
Jump To
Cite 1 - (2021) 9 QR 90
Cite 2 - (2021) 9 QR 90
Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2
2 citations
Jump To
Cite 1 - [2022] QCAT 2
Cite 2 - [2022] QCAT 2
Dream Suburbs Pty Ltd v Body Corporate for Persse Palace Community Titles Scheme [2019] QCAT 373
2 citations
Jump To
Cite 1 - [2019] QCAT 373
Cite 2 - [2019] QCAT 373
Dunstan v Hope Island Resort Principal Body Corporate (PBC) [2024] QCATA 20
2 citations
Jump To
Cite 1 - [2024] QCATA 20
Cite 2 - [2024] QCATA 20
Lowe v BGC Technical Ltd [2016] QCATA 124
2 citations
Jump To
Cite 1 - [2016] QCATA 124
Cite 2 - [2016] QCATA 124

Cases Citing

Case NameFull CitationFrequency
Tosch v Poinciana Vistas CTS QLD 28937 [2025] QCAT 1212 citations
1

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