Tosch v Poinciana Vistas CTS QLD 28937
[2025] QCAT 121
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- Unreported Judgment
- Tosch v Poinciana Vistas CTS QLD 28937[2025] QCAT 121
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Tosch v Poinciana Vistas CTS QLD 28937[2025] QCAT 121
Tosch v Poinciana Vistas CTS QLD 28937[2025] QCAT 121
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Tosch v Poinciana Vistas CTS QLD 28937 [2025] QCAT 121 |
PARTIES: | michael tosch (applicant) v poinciana vistas cts qld 28937 (respondent) |
APPLICATION NO/S: | NDR086-21 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 7 March 2025 |
HEARING DATE: | 12 December 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Acting Member Jensen |
ORDERS: | The tribunal does not have jurisdiction to hear and determine this application. |
CATCHWORDS | ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where lot owner in community title scheme filed application for a tree dispute naming the body corporate as respondent – where subject trees situated on common property – where body corporate submitted that the tribunal lacked jurisdiction to decide the application – whether the dispute falls within the exclusive jurisdiction of the Body Corporate and Community Management Act 1997 (Qld) - Body Corporate and Community Management Act 1997 (Qld) ss 227, 229 Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567 [2024] QCAT 287 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | David Johnstone |
REASONS FOR DECISION
- [1]This is an application for a tree dispute pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The applicant sought orders that the respondent remove certain trees on common property of the scheme, remove or prune the roots of the trees on common property of the scheme, an order that the respondent pay the costs for carrying out these orders, compensation of $2,100 and that an arborist prepare a report.
- [2]The application was scheduled for hearing on 12 December 2024. The applicant appeared and the respondent was represented by Mr David Johnstone, who described his position with the body corporate as chairman/secretary/treasurer. The parties appeared by Teams.
- [3]At the outset of the hearing, I raised the issue of whether the tribunal was vested with jurisdiction to hear and determine this matter in light of a recent decision of Matthew Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567 (‘Jenkin’).[1]
- [4]As this issue was new to the parties and after hearing the parties, I adjourned the hearing to a date a time to be fixed and allowed them the opportunity to provide submissions by 31 January 2025 in relation to the tribunal’s jurisdiction to hear and determine this application, with the issue then to be determined on the papers.
- [5]The following submissions were received from:
- (a)the applicant –
…….the precedence set from [Jenkin] …. details an identical body corporate tree dispute.
This being the case, I have no grounds to not respect this decision from QCAT and to close this case so further action can be taken by other means.
- (b)the respondent – submitted to the effect that the facts of this application and those in Jenkin “seems to be exactly the same.”[2] The respondent then relied on the reasoning in Jenkin to submit that the tribunal lacked jurisdiction to hear and determine this matter.
- [6]I am satisfied that the tribunal does not have jurisdiction to hear and determine this application for the following reasons:
- (a)Section 227(1)(b) of the Body Corporate and Community Management Act 1997 (Qld) (the ‘BCCMA’) defines a dispute as one between the body corporate for a community titles scheme and the owner of a lot included in the scheme;
- (b)The parties do not dispute that the:
- (i)trees (removed) and roots are located on the common property of the Poinciana Vistas Body Corporate CTS 28937 (the ‘scheme’); and
- (ii)the applicant is an owner of a lot in the scheme;
- (c)I am satisfied from a review of the materials filed in the tribunal and after hearing them on 12 December 2024 that the parties are in dispute;
- (d)Section 229(3) of the BCCMA then provides that the only remedy for a dispute (that is not a complex dispute) is the resolution of the dispute by the exclusive dispute resolution process provided for by the BCCMA;[3]
- (e)A dispute between a lot owner and a body corporate about a tree and roots on common property of the scheme does not fall with the meaning of a “complex dispute”;[4]
- (f)I am satisfied that the facts of this application are indistinguishable from those in Jenkin, and I agree with the reasoning and decision in that case;
- (g)As the dispute resolution process under the BCCMA is exclusive in relation to these facts, if follows that the tribunal lacks jurisdiction.
Order
- [7]The tribunal does not have jurisdiction to hear and determine this application.