Body Corporate for Oceana on Broadbeach v 21 Broadbeach Blvd Pty Ltd & Ors [2024] QCATA 65

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Oceana on Broadbeach v 21 Broadbeach Blvd Pty Ltd & Ors [2024] QCATA 65 PARTIES: BODY CORPORATE FOR OCEANA ON BROADBEACH CTS 24163 (applicant) v 21 BROADBEACH BLVD PTY LTD (first respondent) BODY CORPORATE FOR KAROOLA CTS 13135 (second respondent) APPLICATION NO/S: APL170-23 ORIGINATING APPLICATION NO: NDR197-22 MATTER TYPE: Appeals DELIVERED ON: 10 June 2024 HEARING DATE: 12 February 2024 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – where neighbourhood tree dispute – where development approval – where Act excludes jurisdiction of Tribunal if tree is to be maintained as a condition of development approval – whether it was a condition of development approval that the tree be maintained – whether Tribunal has jurisdiction to determine dispute Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 42, s 61 Planning Act 2016 (Qld), s 49 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach [2023] QCAT 170 BP Australia Ltd v Caboolture Shire Council [2004] QPEC 12 Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63 Campbell v Mullins [2016] QCATA 138 -- 1 of 7 -- 2 Grant & Anor v McKenzie-McHarg & Anor [2016] QCAT 134 Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51 Schmidt & Duarte v Freeme [2016] QCAT 251 APPEARANCES & REPRESENTATION: Applicant: BW Wacker of counsel, instructed by Frigo James Legal Respondent: BG Rix of counsel, instructed by Mills Oakley REASONS FOR DECISION [1] This is an appeal from a decision of the Tribunal at first instance, where it was held that the Tribunal has jurisdiction to hear and determine an application made by the respondent for the removal of a tree, a Norfolk Island pine (‘the Tree’), that is growing on the appellant’s land. [2] The appellant maintains that the Tribunal does not have jurisdiction. While by s 61 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) the Tribunal has jurisdiction to hear and decide specified matters where land is affected by a tree, the appellant relies on s 42(4)(c) of the Act, which provides: This chapter does not apply to trees planted or maintained— (a) … (b) … (c) as a condition of a development approval. [3] In the Schedule to the Act, ‘development approval’ means: (a) a development approval under the Planning Act 2016; or (b) a PDA development approval under the Economic Development Act 2012. [4] The term ‘development approval’ is defined at s 49(1) of the Planning Act 2016 (Qld) (‘Planning Act’), though it is noted that the development approval in the present case was issued under the then Local Government (Planning and Environment) Act 1990 (Qld). [5] In any event, it is not in issue between the parties that the relevant Town Planning Consent Permit (‘the Permit’) issued by the Gold Coast City Council on 15 December 1994 under the Planning Act was and is a ‘development approval’ for the purposes of s 42(4)(c) of the Act.1 What is in issue is whether the Tree is a tree to be ‘maintained’ as a condition of that approval. [6] It is the appellant’s submission that the Tree is a tree to be maintained as a condition of the development approval and that, accordingly, the Tribunal does not have 1 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach [2023] QCAT 170, [6] (‘21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach’). See also submissions on behalf of the respondent filed 29 November 2023, [4]. -- 2 of 7 -- 3 jurisdiction. However, consistent with the submissions of the respondent, the Tribunal at first instance found that s 42(4)(c) of the Act does not apply in the circumstances of the present case and that the Tribunal does have jurisdiction to determine the matter. [7] Broadly, the appellant makes two submissions. First, that the Tribunal erred in finding that the conditions of the development approval did not require that the Tree be maintained. Second, the Tribunal erred in finding, in the alternative, that the condition would not prohibit the removal of the Tree, but rather regulate it. [8] In relation to the second submission, the Tribunal at first instance relied on the decision in Schmidt & Duarte v Freeme.2 Reference was made to the following paragraphs in Schmidt:3 [33] It is notable that the development approval for the cluster housing was given in 2002, which is 14 years ago. Vegetation is a living organism, and consideration must be given to changes over time. [34] The retention of a tree may have been perfectly reasonable in 2002, but may be quite inappropriate in 2016, due to the growth and behaviour of the tree and the change of the risk profile over time. [35] The possibility that trees planted or maintained under a landscape plan may need periodic review is implicit in the maintenance condition of the Development Permit for Operational Works Landscaping, which anticipates that replacement planting may be permitted throughout the life of the development. In the context of this application, that requirement would act not to prohibit the removal of a tree, but rather to regulate it, and to provide that if a tree needs replacing (which could occur through mortality, accident, or intentional removal) that a replacement planting be effected. [9] Those observations need to be understood in the context of a finding that in terms of s 42(4)(c) of the Act, the Tree in question was not a tree that was to be maintained as a condition of a development approval. It was found that there was no approved landscaping plan in evidence that clearly identified the tree in question and required its retention. However, reference was also made to a general condition headed ‘Maintenance and Landscaping’, which stated that ‘…replacement planting shall be undertaken on the site throughout the life of the development as required’.4 It was in that context that the observations in Schmidt, at paragraph 35, were made. It is not readily apparent that it was being suggested that the Tribunal would have jurisdiction to determine an application to remove a tree where the Tree was in fact the subject of a s 42(4)(c) condition. [10] The Tribunal at first instance in the present case prefaced its remarks in relation to the decision in Schmidt with the observation that even if the maintenance of the Tree is a condition of the Permit, it ‘…would not prohibit the removal of a tree, but rather regulate it’.5 Reference is then made to condition 14 of the Permit, which required the landscaping to be maintained to the reasonable satisfaction of the Planning and 2 [2016] QCAT 251 (‘Schmidt’). 3 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach (n 1) [33]-[35]. 4 Schmidt (n 2) [23], [49]-[50]. 5 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach (n 1) [24]. -- 3 of 7 -- 4 Development Manager at all times, and it was added that it is implicit ‘…that consideration must be given to changes over time’.6 [11] To the extent that the Tribunal at first instance decided in the alternative that in those circumstances the Tribunal would have jurisdiction, there has been an error on the part of the Tribunal. By its terms, s 42(4)(c) of the Act makes clear that Chapter 3, which is headed ‘Trees’, does not apply to trees planted or maintained as a condition of a development approval. There is nothing in s 42(4) to suggest that the provision should be given a restricted meaning so as to enliven the jurisdiction of the Tribunal where the issue is whether a tree should be removed.7 The term ‘maintained’ is not defined in the Act or the Acts Interpretation Act 1954 (Qld). The definition in the Cambridge Dictionary includes ‘to continue to have’ and ‘to keep in existence’, while in the Oxford Dictionary there is reference to ‘cause to continue’ and ‘keep in good order’. Generally, the very purpose of maintenance is to retain, which is the antithesis of its destruction. [12] More generally, while the objects of the Act, at s 3, include ‘to facilitate the resolution of any disputes about … trees that do arise between neighbours’ and those disputes may relate to matters other than preservation of a tree, such as where there is a perceived need to trim an intrusive tree, it is evident that the object of s 42(4)(c) of the Act is to avoid conflict between conditions imposed as part of planning approval and any decision of the Tribunal. The drawing of a distinction between ‘maintenance’ and removal also begs the question of in what circumstances would the Tribunal have jurisdiction to order removal and, also, whether the jurisdiction of the Tribunal might be invoked where it is sought to remove only a branch that has withered or died. Also, it is noted that by s 42(4)(a), Chapter 3 does not apply to trees planted or maintained for commercial purposes. A narrow interpretation of ‘maintained’ could leave room for the jurisdiction of the Tribunal in relation to commercial trees. [13] Accordingly, it is apparent that where it is found that a condition of a development approval requires the ‘maintenance’ of specified trees, the Tribunal has no jurisdiction in relation to any disputes involving those trees, including, as here, where the Council has since authorised removal. The latter does not detract from the fact that there is a condition that the trees be maintained, such that invokes s 42(4)(c) of the Act. Accordingly, any removal is subject to the directions of the relevant council. [14] That leaves the question of whether the Tribunal erred in its primary finding that the conditions of the development approval did not require the Tree to be maintained. [15] In submitting that the conditions did require the Tree to be maintained, in essence the submission of the appellant is in two parts. First, it is submitted that the plans referred to in conditions 1 and 2 of the Permit specifically required the preservation of the Tree. Second, it is submitted that the general provision in condition 66 of the Permit applies. That imposes a condition with regard to the removal and preservation of any tree with a girth of 400 mm or more at waist height. There is evidence that in 2022, the Tree had a girth of one meter at breast height. The appellant no longer places 6 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach (n 1) [25]. 7 See, for example, Grant & Anor v McKenzie-McHarg & Anor [2016] QCAT 134, [18]; Campbell v Mullins [2016] QCATA 138, [22]. -- 4 of 7 -- 5 reliance on conditions 14 and 15 of the Permit, which are referred to in the Reasons of the Tribunal at first instance.8 [16] Condition 1 is headed ‘APPROVED PLANS' and provides: The development shall be in accordance with the plans (and elevations) submitted by the applicant (Plan/Drawing No. 6390D SK1-8 submitted by DBI Design Corporation dated 29 July 1994) (as amended by the conditions of the approval). [17] Condition 2 is headed ‘BUILDING AND DEVELOPMENT COMPLIANCE’ and provides: Submission to and approved by Council of satisfactory building plans and specifications in accordance with the Building Act, Council’s By-laws where applicable and the City of Gold Coast Planning Scheme. These building plans are to accord with the plan approved in this Approval. The building is to be constructed in accordance with the approved building plans prior to the commencement of the use. [18] Condition 66 is headed ‘TREE PRESERVATION’ and provides: Any tree with a girth of 400mm or more at waist height shall not be removed without first obtaining the consent of the Chief Engineer. … Prior to any design or construction work commencing, arrangements shall be made with the Environmental Officer for an inspection to identify trees which are to be preserved. The results of the inspection will be valid only for the duration of this approval, and a fresh inspection will be required for any future approval. [19] In relation to conditions 1 and 2, the appellant acknowledges that the plans referred to in condition 1 were not before the Tribunal, but notes that those referred to in condition 2 were before the Tribunal. While the respondent submits that the latter plans are not the ‘approved’ plans referred to in condition 1, the appellant points to evidence that they were stamped ‘Application Approved’. The appellant then submits: Those approved plans comprise a ground floor plan and a landscaping plan. Given that Condition 2 required that the building plans ‘accord with the plan approved in the approval’ it is reasonable to infer that the plans referred to in Condition 1 were substantially the same as the plans referred to in Condition 2. [20] It is added: ‘The approved ground floor plan depicts the Tree and contains a note beside it ‘Retain existing Norfolk Pine tree’ and, consequently, the plans require the retention of the Tree. [21] There are several difficulties with that submission. First, the Tribunal is asked to infer that the plans referred to in condition 1 were ‘substantially’ the same as those before the Tribunal, submitted in accordance with condition 2. The word ‘substantially’ highlights the difficulty: whether or not they were the same, particularly in relation to the inclusion of the Tree, is a matter for speculation. The fact that the building plan referred to in condition 2 was stamped ‘Application Approved’ does not necessarily establish that the notation ‘Retain existing Norfolk Pine tree’ was also incorporated into the approved plan referred to in condition 1. Second, and this follows on from the previous point, there is a question of whether the tree depicted in the ground floor plan was part of the ‘plan approved in the approval’ or whether, on instructions from an 8 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach (n 1) [4], [13]-[14]. -- 5 of 7 -- 6 interested party, it was simply added to the plan. As noted by the Member at first instance,9 those drawings were lodged with the Council five months after the Permit was granted. Third, condition 1 requires the ‘development’ to be in accordance with ‘the plans’, while condition 2 refers to ‘building plans’. It is not readily apparent whether they are referring to the same plans, or whether condition 2 refers more narrowly to the ‘building’ plans. Fourth, even if reference was made to the Tree in the condition 1 plans, it is not known whether or not any qualifications were included, in relation to applicable time frames or otherwise. Fifth, condition 66 is headed ‘Tree Preservation’ and makes no reference to the Tree. That begs the question of why preservation of the Tree was not included in the condition that deals directly with preservation if that was intended. There is no evidence as to the girth of the Tree in 1994, when the Permit was issued, as to which see below, [23]. [22] Leaving condition 66 to one side, it is not apparent that the preservation of the Tree was a specific condition of the development approval and the submissions of the appellant to the contrary are rejected. [23] As to the separate submission as to the applicability of condition 66, that condition, with specified exceptions, provides that any tree with a girth of 400 mm at waist height shall not be ‘removed’ without the consent of the Chief Engineer, but also provides that the Environmental Officer will identify trees that are to be ‘preserved’. [24] As framed, it is the Environmental Officer who determines which trees are to be preserved, while any large trees cannot be removed without the consent of the Chief Engineer. The required consent of the Chief Engineer rather than of the Environmental Officer or relevant planning body,10 appears to be more to do with ensuring that appropriate safety and technical processes are set in place prior to any removal, rather than conferring a decision-making authority in relation to whether or not a tree should be preserved. Otherwise, it would mean that while the Environmental Officer determines which trees are to be preserved, the Chief Engineer could make a contrary decision, but only in relation to large trees. [25] Also, the use of the distinct words ‘removed’ and ‘preserved’ in condition 66 suggest an intention to assign distinct roles to the Environmental Officer and the Chief Engineer. The Cambridge Dictionary defines ‘preserve’ as ‘to keep something as it is, especially in order to prevent it from decaying or being damaged or destroyed’. In relation to the role of the Environmental Officer, as distinct from the Chief Engineer, in condition 66 there is a timeframe within which the trees to be preserved must be identified, so that at all times the owner will be aware of the indicated trees. The time for the consent of the Chief Engineer, as in the present case, may be many years later and the giving of consent is likely to have been intended to apply to trees that were not required to be preserved or where a requirement of preservation has lapsed. [26] It is also telling that the provisions of the Permit that most directly relate to landscaping, conditions 14 to 15, make no reference to the preservation of trees. While condition 66 does so, it directly allocates the task of identifying the trees to be preserved to the Environmental Officer. As stated in Brisville Pty Ltd v Brisbane City 9 21 Broadbeach Blvd Pty Ltd and the Body Corporate for Karoola v Body Corporate for Oceana on Broadbeach (n 1) [23]. 10 It is noted that condition 14 provides that the landscaping is to be established and maintained to the reasonable satisfaction of the Planning and Development Manager. -- 6 of 7 -- 7 Council,11 a condition of a development approval ‘ought to be construed in the context of the approval as a whole’. Also, as noted in BP Australia Ltd v Caboolture Shire Council,12 ‘planning approvals ought to be construed in a way which places the least burden on the landowner when ambiguity arises’. An obligation to maintain or retain a tree places a burden on the landowner. [27] It is not apparent that pursuant to condition 66 it was the role of the Chief Engineer to determine which trees were to be preserved. That task was allocated to the Environmental Officer. There is no evidence as to any trees identified by the Environmental Officer for preservation. [28] The submissions of the appellant in that regard are rejected. There was no error on the part of the Tribunal at first instance such that would impact the outcome of the appeal. The appeal is dismissed. 11 [2007] QPEC 63, [13]. 12 [2004] QPEC 012, [6], citing Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51, 57. -- 7 of 7 --