Conway v The Station Quarters CTS 45738 [2024] QCAT 420

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION Conway v The Station Quarters CTS 45738 [2024] QCAT 420 PARTIES: TALISIA JANICE CONWAY (applicant) v THE STATION QUARTERS CTS 45738 (respondent) APPLICATION NO/S: NDR 146-23 MATTER TYPE: Other civil dispute matters DELIVERED ON: 27 September 2024 HEARING DATE: On the papers DECISION OF: Member Taylor ORDERS: Pursuant to s 60 of Queensland Civil and Administrative Tribunal Act 2009 (Qld), it is declared that: (a) the tree or trees the subject of the Application for a Tree Dispute filed by the applicant on 9 August 2023 is a tree or are trees planted as a condition of a development approval; (b) pursuant to s 42(4)(c) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), it is not a tree, or they are not trees, to which Chapter 3 of that Act applies; and (c) the jurisdiction of the Queensland Civil and Administration Tribunal under s 61 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) has not been enlivened. Pursuant to s 47(1)(a) and s 47(2)(a) of Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Application for a Tree Dispute filed by the applicant on 9 August 2023 is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a neighbour to a home unit development complains about a tree on its common property overhanging the boundary with her land – where the complaining neighbour asserts the tree is causing substantial interference with the use and enjoyment of her land, and damage to her property – where -- 1 of 6 -- 2 the complaining neighbour sought relief from the Tribunal in terms of remedial action to the tree - where the tree is planted as part of the development approval for the construction of the home units – where as a consequence the tree is not a tree to which the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applies – where the jurisdiction of the Tribunal is not enlivened – where the applicant seeks a refund of the application fee she paid given the absence of jurisdiction Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 42, s 61 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 46, s 47, s 60, s 224, Schedule 2 s 9 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 57A 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 [1] The applicant (Ms Conway) is the owner of a property at 260 Pickering St, Gaythorne, a suburb of Brisbane. It has a dual street frontage, the other end of the property from Pickering St fronts Station Ave, Gaythorne. (the Applicant’s Land) [2] Immediately to the right side of the Applicant’s Land, when viewed from the Station Ave end, is a home unit development. It is at 37 Station Avenue. (the Respondent’s Land).The respondent (Station Quarters) is the registered owner of the common property thereon. [3] The Applicant’s Land and the Respondent’s Land share a relatively short common boundary, the remainder of the boundary on that side of the Applicant’s Land being shared with the property at 256 Pickering St.1 [4] A steel shed garage is located on the Applicant’s land close to that shared boundary. A large tree is situated on the Respondent’s Land on the other side of the shared boundary and also close to that boundary (the Tree). It is not in dispute that it is on the common property and thus Station Quarters is the proper respondent in this proceeding. It overhangs the boundary and in turn overhangs the shed garage. [5] Ms Conway complains that the overhanging branches, the associated leaf litter, and animal droppings from the possums that live in the Tree, are causing not only serious damage to the property on her land, namely the shed garage and cars parked there, but also substantial, ongoing, and unreasonable interference with the use and enjoyment of her land. 1 This fact is readily identifiable from a Brisbane City Council City Plan 2014 which is on the Tribunal record shown as having been filed 29 May 2024 together with copies of relevant current title searches. -- 2 of 6 -- 3 [6] On 9 August 2023 Ms Conway filed in this Tribunal an ‘Application for a Tree Dispute’ under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).2 Therein she expressed those complaints and sought an order that Station Quarters remove or prune the offending branches of the Tree, plus corresponding orders for implementation of that order. She also sought orders that Station Quarters pays for the costs of doing same, and that she be compensated for the damage to her land or property but without specifying an amount. [7] On 8 September 2023 Station Quarters filed its response to Ms Conway’s application. Therein, whilst it challenged the application on its merits arguing her complaints did not meet the criteria under the ND Act for the requested relief to be granted, critically it challenged this Tribunal’s jurisdiction to consider and determine Ms Conway’s application. This was on the basis that the Tree was planted and is maintained as a condition of a development approval, namely that given by the Brisbane City Council in 2009 and then extended in 2012 for the construction of the home unit development on 37 Station Ave, Gaythorne. [8] On 28 February 2024, by way of Directions given by this Tribunal, it was directed that the jurisdictional issue be decided as a preliminary matter, such posed as the following questions: (the Preliminary Points) Was the tree or trees in dispute planted and/or maintained as a condition of a development approval? - and if so (a) Whether the application for a tree dispute should be dismissed. [9] At the same time directions were given for the parties to file any submissions about the Preliminary Points. Ms Conway’s was due by 5 April 2024, Station Quarters’ was by 3 May 2024. It was also directed that unless either of the parties requests in writing an oral hearing, such to be made by 3 May 2024, the Preliminary Points would be atter determined on the papers. [10] On 6 March 2024, Ms Conway sent an e-mail to the Tribunal Registry in which the following statement appears: The tree I inquired about was under DA approval and therefore is a Brisbane City Council matter and the complaint needs to be handled by them. I’ve submitted a $300 fee upon application and I am requesting a refund of this. [11] On 29 May 2024, Ms Conway sent a second e-mail to the Registry. On that occasion it had attached to it a letter from the Brisbane City Council addressed to her and dated 7 March 2024. That letter contained a description that it was in reference to a 2 In the application filed, Ms Conway named the respondent as ‘Capitol Body Corporate’ which I infer from the fact of it being named that it is the Strata Manager for the relevant Body Corporate in terms of the Respondent’s Land. It seems that as the proceeding unfolded it quickly became evident that the named respondent was incorrect, and by a Decision of this Tribunal given 7 September 2023 Capitol Body Corporate was removed as the named respondent and Station Quarters was added as the proper respondent. -- 3 of 6 -- 4 complaint made about ‘overhanging vegetation’ at 37 Station Ave, Gaythorne. In that e-mail this statement appears:3 Final decision was made by Brisbane city (sic) council (sic). Please see attached letter. The decision does not lie with QCAT as disclosed in the final advice by the judge. Therefore I would like a refund for my application as it isn’t within QCAT’s jurisdiction. [12] That was the extent of any further material from Ms Conway. Station Quarters did not file any further material. Neither party requested an oral hearing. [13] It is against this background that this proceeding came before me for determination. The Issue [14] The singular issue in this proceeding was the question of this Tribunal’s jurisdiction. [15] Whilst issues arose in terms of allegations made in Ms Conway’s application and the responses thereto by Station Quarters, which ordinarily would require determination before reaching a conclusion on the relief sought in the application, because of the decision I reached on the Preliminary Points there was not any need for me to descend into a consideration on any of those issues. Accordingly I have not discussed them here. [16] Before embarking on my discussion of that jurisdictional issue, for Ms Conway’s benefit I make these few observations given the content of her e-mails to the Tribunal Registry of 6 March 2024 and 29 May 2024 wherein she appears to have accepted that this Tribunal was without jurisdiction and so sought a refund of her application fee. [17] Once the jurisdictional issue was raised, and seemingly accepted by her, Mr Conway had the option of withdrawing her application under s 46(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) by taking the steps provided for under s 57A of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules). But that does not mean she would become entitled to a refund of her application fee. The provisions of s 224 of the QCAT Act provides a ‘rule- making power’ in terms of inter-alia matters mentioned in Schedule 2 of the QCAT Act. In turn under s 9 of that Schedule 2, in particular s 9(1)(a) read together with s 9(2)(c) therein, there is a provision that rules for the withdrawal of an application may provide for refunding fees for the application. The relevant rules are those found in the QCAT Rules Part 8 Division 1. But none of those rules provide for a refund on withdrawal. [18] However, the critical issue here is that Ms Conway did not formally withdraw her application. Thus it must be decided by this Tribunal. That being so, it is a determination of the application for which she paid a fee, such which will run its course in its entirety. 3 It is entirely unclear to me as to what is ‘the final advice by the judge’ to which she is referring. I infer from the sequence of events evidenced by the documents on the Tribunal file that it might be a reference to the content of the Directions of 28 February 2024, being what is shown to be the final directions issued before the matter came to me for determination, where the learned Member therein referred to s 42(4) of the ND Act and the absence of the Tribunal’s jurisdiction it gives rise to in the circumstances the tree in question was planted or maintained as a condition of a development approval. -- 4 of 6 -- 5 [19] For both of these reasons there is no premise for Ms Conway to be given a refund. Relevant Law [20] The sole issue in this proceeding fell to be decided under the provisions found in the ND Act, more particularly ‘Chapter 3 – Trees’ therein, and specifically Part 1 and Part 5 within that Chapter. For ease of reference, extracted here are the relevant provisions of that Act: Part 1 Introduction 42 Trees to which this chapter applies (1) Subject to subsections (2) to (5), this chapter applies to trees on the following land— (a) land recorded in the freehold land register; … … (4) This chapter does not apply to trees planted or maintained— …; or (c) as a condition of a development approval. … … Part 5 QCAT orders to resolve issues about trees 61 Jurisdiction QCAT has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree. Discussion on the Jurisdictional Challenge [21] In documentation accompanying its response filed 8 September 2023, Station Quarters provided a copy of the Decision Notice effectively providing the relevant development approval, together with proof of the extension thereto. [22] As is relevant to Ms Conway’s application and the complaint she makes about the Tree, the conditions of that approval required a detailed landscape plan to be prepared in accordance with the approved ‘Landscape Concept Plan’ referred to therein, and that in turn the landscaping be constructed in accordance with that detailed landscape plan, and that a ‘compliance certificate’ be submitted to the Council after construction to show that requirement had been met. That is, it required compliance with the Landscape Concept Plan. [23] The relevant Landscape Concept Plan is also included with its material. It is dated October 2008. On my inspection of that plan, together with my inspection of the photographs included in both her material and that provided by Station Quarters, I was readily able to observe that Tree, as complained of by Ms Conway, is at the very least one of the trees required to be planted along the common boundary between the Applicant’s Land and the Respondent’s Land in accordance with the Landscape -- 5 of 6 -- 6 Concept Plan. There is nothing contained in the material from either party to suggest that the Tree is not one of those trees planted as required by the development approval. [24] Station Quarters also included a copy of an ‘Inspection Certificate for Landscape Works’ dated 7 February 2014 wherein it is recorded by the Building Certifier named therein that “The landscape works have been completed in accordance with the approved landscape plan dated October 2008”. [25] In all respects, on the basis of this documentation, I find that the Tree is a tree planted as required by that development approval. Accordingly it is a tree which falls within the ambit of s 42(4)(c) of the ND Act and accordingly a tree to which Chapter 3 of the Act does not apply. [26] What follows is that this Tribunal’s jurisdiction under s 61 of the ND Act has not been enlivened. Conclusion [27] Ms Conway’s application was entirely misconceived given the absence of jurisdiction of this Tribunal. As discussed earlier in these reasons, she did not withdraw the application. For these reasons, the only outcome is that it must be dismissed. [28] Station Quarters did not seek an order for its costs (if any) in the manner contemplated under s 47(2)(c) and accordingly such was not an issue I gave any consideration to it. [29] For all the reasons discussed herein, orders were made in resolution of the Preliminary Points, firstly by way of a declaration pursuant to s 60 of the QCAT Act in answer to the first question, secondly as an order pursuant to 47 of the QCAT Act dismissing Ms Conway’s application. -- 6 of 6 --