Dunstan v Hope Island Resort Principal Body Corporate (PBC)
[2024] QCATA 20
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- Dunstan v Hope Island Resort Principal Body Corporate (PBC)[2024] QCATA 20
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Dunstan v Hope Island Resort Principal Body Corporate (PBC)[2024] QCATA 20
Dunstan v Hope Island Resort Principal Body Corporate (PBC)[2024] QCATA 20
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Dunstan & Anor v Hope Island Resort Principal Body Corporate (PBC) [2024] QCATA 20 |
PARTIES: | NEIL GLEN DUNSTAN ELVIRA DUNSTAN (appellants) v HOPE ISLAND RESORT PRINCIPAL BODY CORPORATE (PBC) (respondent) |
APPLICATION NO/S: | APL026-23 |
ORIGINATING APPLICATION NO/S: | NDR171-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 27 February 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – trees, vegetation and habitat protection – disputes between neighbours – where appellants are registered owners of a lot in a group title plan – where land affected by trees is scheme land under the Building Units and Group Titles Act 1980 (Qld) – where Tribunal below found that the appellants do not have standing as ‘neighbours’ under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether a lot owner under the Building Units and Group Titles Act 1980 (Qld) is a ‘neighbour’ pursuant to s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether error in the Tribunal’s decision to dismiss the appellants’ application Building Units and Group Titles Act 1980 (Qld), s 7 Land Title Act 1994 (Qld), Schedule 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 46, s 49, s 62, s 66 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 146 Black v Summer Waters Body Corporate CTS 19297 [2022] QCATA 67 Brown & Anor v Wallace [2014] QCAT 461 Lowe v BGC Technical [2016] QCATA 124 Young and Anor v Puck [2021] QCAT 231 |
APPEARANCES: | 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
- [1]The question arising on this appeal is whether the appellants are ‘neighbours’ for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’), such that they have standing to commence proceedings under the NDA in relation to trees situated on the common property of the respondent.
- [2]By s 62 of the NDA, a ‘neighbour’ may apply to the Tribunal for an order under s 66. The latter provision sets out the orders that may be made by the Tribunal where a tree affects a neighbour’s land.[1]
- [3]Section 49 of the NDA is headed ‘Who is a neighbour’ and provides:
- Each of the following entities is a neighbour in relation to a particular tree or the tree-keeper for a particular tree—
- if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994—
- a registered owner of the lot under that Act; and
- an occupier of the land;
- 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;
- 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.
- However, subsection (1)(a)(ii) does not apply for part 4.
- [4]By s 8 of the Building Units and Group Titles Act 1980 (Qld) (‘the BUGTA’), land may be subdivided into lots and common property by the registration of a group title plan. The appellants are the registered owners of Lot 37 in Gracemere Island Two Group Title Plan 107093. Lot 37 contains a dwelling and adjoins the respondent’s land. Approximately two metres from the southern boundary of Lot 37, on land belonging to the respondent, stand the four subject Poinciana trees, which are approximately four to six metres high.
- [5]In dismissing the application pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) for want of jurisdiction, the Tribunal at first instance followed the decision in Brown & Anor v Wallace,[2] where it was found that an individual lot owner in a group title scheme is neither a registered owner nor an occupier of land under the Land Title Act 1994 (Qld) (‘the LTA’), nor, as a natural person, a body corporate for land under the BUGTA. In Brown & Anor v Wallace, in the absence of evidence that the appellant was authorised to act on behalf of the body corporate or that it supported the application, the application was dismissed as ‘misconceived’ and ‘lacking in substance’.
- [6]The appellants submit that the Tribunal Member erred in law in finding that the Tribunal does not have jurisdiction; in particular, in finding that the appellants are not ‘neighbours’ within the meaning of the NDA. No submissions have been filed by the respondent.
Discussion
- [7]In Brown & Anor v Wallace it seems to have been presumed that where land affected by a tree is registered under the BUGTA the application can be brought only by the relevant Body Corporate. In any event, as in the present matter at first instance, there was no separate consideration as to whether the applicant qualified as a ‘registered owner of the lot’ within the meaning of s 49(1)(a)(i) of the NDA.
- [8]Section 49(1) of the NDA provides that ‘each’ of the specified entities is a ‘neighbour’. That gives rise to the question of whether the appellants are the ‘registered owners’ of a ‘lot’ under the LTA.
- [9]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 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.
- [10]The term ‘parcel’ (of land) is defined at s 7 of the BUGTA as meaning ‘the land comprised in a plan’, while the term ‘plan’ means ‘a building units plan or a group titles plan’.[3]
- [11]A title search filed in the Tribunal shows that the appellants are the registered owners as joint tenants of an estate in fee simple of Lot 37 on Group Titles Plan 107093.
- [12]As noted, s 49 of the NDA provides that ‘each’ of the specified entities is a ‘neighbour’ within the meaning of that Act. Section 49 should also be read 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.
- [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.
- [15]By the terms of s 49 of the NDA, the appellants are ‘neighbours’ and have standing to bring the present application before the Tribunal. To the extent that the Tribunal at first instance held to the contrary there has been an error of law.
- [16]Pursuant to s 146(c) of the QCAT Act, the decision of the Tribunal at first instance is set aside and the matter is returned to the Tribunal to enable appropriate directions to be made for the hearing of the matter.
Footnotes
[1] As to when land is ‘affected by a tree’, see s 46 of the NDA.
[2] [2014] QCAT 461.
[3] See also Lowe v BGC Technical [2016] QCATA 124, [16]; Young and Anor v Puck [2021] QCAT 231, [9]; Black v Summer Waters Body Corporate CTS 19297 [2022] QCATA 67, [78].
[4] Lowe v BGC Technical [2016] QCATA 124, [34]-[36].