Morton v The Body Corporate for Halcomb Manor CTS 33521
[2024] QCAT 374
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Morton v The Body Corporate for Halcomb Manor CTS 33521[2024] QCAT 374
- Add to List
Morton v The Body Corporate for Halcomb Manor CTS 33521[2024] QCAT 374
Morton v The Body Corporate for Halcomb Manor CTS 33521[2024] QCAT 374
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Morton & Anor v The Body Corporate for Halcomb Manor CTS 33521 [2024] QCAT 374 | |
PARTIES: | JAZ ALI MORTON (first applicant) AND LORI ROSETTA ANNA AMURRI (second applicant) V THE BODY CORPORATE FOR HALCOMB MANOR CTS 33521 (respondent) | |
APPLICATION NO/S: | NDR222-23 | |
MATTER TYPE: | Other civil dispute matters | |
DELIVERED ON: | 4 September 2024 | |
HEARD AT: | Brisbane | |
DECISION OF: | A/Senior Member Lember | |
ORDERS: |
| |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether applicants are neighbours with standing to bring the application – where affected land is a lot in a community title scheme – application to strike out ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether the owner of a lot in a community title scheme has standing to bring an application in a tree dispute Land Title Act 1994 (Qld) sch 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 42, s 49, s 52 Dunstan 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). | |
REASONS FOR DECISION
What is the application about?
- [1]Mr Morton and Ms Amurri own Lot 2 on a survey plan in an identified Community Title Scheme (CTS), a property they say is impacted by bamboo growing from adjoining land owned by Mr Sarah and Ms Cataletta, which is also a lot in a CTS.
- [2]In an application for a tree dispute filed on 15 November 2023, Mr Morton and Ms Amurri seek orders that the encroaching bamboo is removed from their courtyard and kept pruned. The application was brought against the body corporate for the scheme in which Mr Sarah and Ms Cataletta’s lot is situated, and, with leave, Mr Sarah is representing that body corporate in these proceedings.
- [3]In its response filed 26 April 2024 and in an application for strike out filed the same day, the respondent body corporate submits that Mr Morton and Ms Amurri lack standing to bring the application for a tree dispute because they are not ‘neighbours’ within the meaning of s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). This decision addresses that question.
The legislative framework
- [4]
- [5]
(a) if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994 —
(i) a registered owner of the lot under that Act; and
(ii) an occupier of the land;
(b) if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997—the body corporate for the community titles scheme; and
(c) 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.
- [6]The term ‘lot’ is not defined in the NDA. However, the terms ‘lot’ and ‘registered owner’ (of a lot) are defined in Schedule 2 of the Land Title Act 1994 (Qld) (LTA):
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.
…
registered owner of a lot means the person recorded in the freehold land register as the person entitled to the fee simple interest in the lot.
- [7]In Dunstan v Hope Island Resort Principal Body Corporate (PBC) [2024] QCATA 20 the Appeal Tribunal noted the reference in s 49 of the NDA to ‘each’ of the specified entities being a ‘neighbour’ within the meaning of that Act and read it in the context of the objects of the NDA at s 3, which are:
- to provide rules about each neighbour’s responsibility for dividing fences and for trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and
- to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.
- [8]The Appeal Tribunal went on to say that:
[13] It is consistent with both s 49 and the objects of the NDA that a lot owner is able to make an application to the Tribunal, including where the relevant body corporate is disinclined to do so. Otherwise, where the body corporate fails to act, the person directly affected by a tree would be provided with no redress under the NDA and the adjoining property owner would be free of the responsibility envisaged by the object at 3(a) of the NDA.
[14] As noted by Justice Thomas, President and Member Browne in Lowe v BGC Technical (footnote omitted): [4]
[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.
[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. 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’.
[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.
- [9]Consistent with the decisions in Dunstan and Lowe and applying the terms of s 49 of the NDA, Mr Morton and Ms Amurri as registered owners or indeed occupiers of their lot are ‘neighbours’ of the respondent with standing to bring the application for a tree dispute to the Tribunal.
Decision
- [10]For those reasons, the application for strike out is dismissed.