Beriley Pty Ltd v Novadeck Pty Ltd t/as Heran Building Group [2017] QCAT 29

CITATION: Beriley Pty Ltd v Novadeck Pty Ltd t/as Heran Building Group [2017] QCAT 29 PARTIES: Beriley Pty Ltd (Applicant) v Novadeck Pty Ltd t/as Heran Building Group (Respondent) APPLICATION NUMBER: NDR148-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 23 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a tree dispute is dismissed; 2. There is no order as to costs. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree maintained as a condition of a development approval - where Tribunal does not have jurisdiction to hear and determine an application for a tree dispute concerning a tree maintained as a condition of a development approval. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 46, s 48, s 59, s 62, s 66, Schedule Sustainable Planning Act 2009 (Qld), s 7, Schedule 3 Sustainable Planning Regulation 2009, Schedule 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 -- 1 of 7 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION What is this application about? [1] Beriley Pty Ltd owns land at Calamvale. Novadeck Pty Ltd owns land adjoining Beriley’s property. On Novadeck’s land there grows a scribbly gum which is a species of eucalyptus (the tree). Beriley says that the tree is likely to cause serious injury to a person on, or serious damage to, Beriley’s land within the next twelve months. Beriley also says that the tree substantially and unreasonably interferes with the use and enjoyment of its land. Beriley has filed an application for a tree dispute and seeks the removal of the tree or the pruning of tree branches. Novadeck says that the tree is retained pursuant to an order of the Planning and Environment Court and as a condition of a development approval. [2] The Tribunal made directions for the parties to file submissions addressing the following preliminary question for determination:1 Does the Tribunal have jurisdiction to hear and determine the application for a Tree Dispute relating to the tree identified as #1525 on drawing number VMP01 prepared by Walter Consulting Group. [3] The parties have filed submissions as directed and the preliminary question now falls for determination. The statutory framework – the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) [4] A tree keeper is responsible for the proper care and maintenance of the tree keeper’s tree.2 A ‘tree’ is defined.3 Land may be ‘affected by a tree’.4 A neighbour may apply to the Tribunal for an order if their land is ‘affected by a tree’.5 [5] The Tribunal may make orders it considers appropriate in relation to a tree after giving due consideration to a number of matters.6 1 Directions made 10 November 2016. 2 NDA, s 41(1). 3 Ibid, Schedule and s 48. 4 Ibid, s 46. 5 Ibid, s 62. 6 NDA, s 66. -- 2 of 7 -- 3 [6] The NDA does not apply to trees planted or maintained: under an order of a court or tribunal;7 or, as a condition of a development approval.8 Accordingly, any such tree is exempt from the operation of the NDA and the Tribunal has no jurisdiction to make orders in relation to such a tree. [7] Development approval is defined.9 Schedule 3 of the Sustainable Planning Act 2009 (the SPA) defines ‘development approval’ as: (a) a decision notice or a negotiated decision notice that— (i) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and (ii) is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or (b) a deemed approval, including any conditions applying to it. [8] ‘Development’ is defined.10 A ‘development application’ means an application for a development approval.11 A ‘decision notice’ is defined.12 ‘Assessable development’ means development prescribed under s 232(1)(c) SPA to be assessable development.13 What do the parties say? [9] In its submissions, Beriley acknowledges the operation of s 42(4) of the NDA but says that the section must be read subject to s 67 which provides: 67 Scope of order to override other laws (1) If QCAT is satisfied the application before it was made because of a genuine dispute, it may make an order for a person to carry out work on a tree even though— (a) consent is withheld by a local government or a tree-keeper under a vegetation protection order; or (b) a local law requires a consent or authorisation to be given before the work may be carried out; or (c) the work is otherwise restricted or prohibited under a local law. (2) Work carried out under an order made under subsection (1) is lawful despite a local law. (3) Except as provided under subsection (1), QCAT may not make an order for a person to carry out work on a tree that is prohibited under another Act. [10] Beriley says that if the Tribunal is satisfied there is a genuine dispute, the Tribunal may make an order in relation to a tree provided that order does 7 Ibid, s 42(4)(b). 8 Ibid, s 42(4)(c). 9 NDA – Schedule. 10 SPA – s 7. 11 SPA – schedule 3. 12 SPA – Schedule 3 – referring to s 334(1). 13 Ibid and Sustainable Planning Regulation 2009, Schedule 3. -- 3 of 7 -- 4 not require work to be carried out on the tree that is prohibited by another Act or in contravention of an order of a Court. [11] Beriley says that the outcome it seeks does not involve any action to override or change any condition of the Development Approval. In referring to the relevant Development Approval relied upon by Novadeck, Beriley says that Novadeck is required to maintain the health and stability of any retained trees and to reduce potential hazards. Beriley says that it is Novadeck’s responsibility to ensure that any potential hazards caused by the tree are reduced. [12] Novadeck says that the tree is required to be kept under a development approval in respect of a material change of use for multi-unit dwelling on its land. Novadeck says that in its most recent form, the development approval was issued by the Planning and Environment Court on 7 December 2015. The result of this, says Novadeck, is that the Tribunal has no jurisdiction to hear and determine the application for a tree dispute. Consideration [13] The tree is a “tree” for the purposes of s 45 of the NDA. Beriley is a “neighbour” and Novadeck is “tree keeper”. The tree is situated on Novadeck’s land. [14] On 7 December 2015, the Planning and Environment Court ordered that the Development Approval granted by the Court on 8 October 2008 (the original Development Approval), be changed (the Development Approval).14 The original Development Approval is not before the Tribunal. [15] The Development Approval is dated 4 December 2015 and relates to “Material Change of Use Development Permit – Multi-Unit Dwelling”. The Development Approval requires operational work: … to be carried out generally in accordance with the approved plans, drawing(s), and/or documents…15 [16] The Development Approval requires the development to be carried out: … in accordance with the approved drawing(s) and/or document(s).16 [17] The Development Approval requires the development to be maintained: … (including landscaping, parking, driveways and other external spaces) in accordance with the approved drawing(s) and/or documents …17 [18] Finally, the Development Approval refers to aboricultural requirements necessary to ensure the long-term health and safety of trees to be retained including: 14 Order of Jones DCJ, 7 December 2015 in BD 4153 of 2014. 15 Development Approval, condition 1. 16 Ibid, condition 4. 17 Ibid, condition 7. -- 4 of 7 -- 5 Any pruning, tree surgery and other maintenance works necessary to maintain the health and stability of any retained trees, and to reduce potential hazards, must be carried out in consultation with Development Assessment.18 [19] The term “drawings and documents” in the Development Approval includes documents described as “Tree Retention Removal Plan (a)” and “Landscape Plan – Part 1”. [20] The Tree Retention Removal Plan is before me, attached to submissions filed by Beriley.19 The Landscape Plan is before me, attached to submissions filed by Novadeck.20 It is not contentious that the tree is identified as “#1525” on both plans. On the Tree Retention Removal Plan the tree is colour coded green. The relevant legend identifies all trees colour coded green as “existing tree to be retained”. [21] It is clear from the Tree Retention Removal Plan and the Landscape Plan that the tree is required to be retained as a condition of the Development Approval. It is also required to be retained pursuant to an order of the Planning and Environment Court. Accordingly, the Act does not apply to the tree.21 [22] Beriley’s reliance upon the condition of the Development Approval requiring the maintenance of the health and stability of the tree, and to reduce potential hazards, is misplaced. Beriley cannot rely upon a condition of the Development Approval when it is the Development Approval that removes the tree from the jurisdiction of the Tribunal. [23] Beriley’s reliance upon s 67 of the NDA is also misplaced. Section 67 is concerned with the power of the Tribunal to make an order for work to be carried out on a tree notwithstanding consent being withheld for such work by a local authority under a vegetation protection order (VPO) or the application of a relevant local law. Section 67 only applies if the Tribunal is satisfied the application for a tree dispute has been made because of a genuine dispute. The section sets out specific circumstances in which the Tribunal may make an order in relation to a tree. Those circumstances relate to the existence of a vegetation protection order relating to a tree, or the application of a local law regarding work on a tree. A vegetation protection order means an order made by a local government under a local law to provide for or facilitate the protection of a tree.22 A local law means a local law made by a local government and includes a by-law or ordinance made by a local government.23 The term “genuine dispute” is not defined in the NDA. In accordance with usual principles of statutory interpretation, the meaning of the term is to be determined by reference to the text and the context in which it appears. Section 67 is contained in Part 5 of Chapter 3. 18 Development Approval, condition 24(d). 19 Submissions filed 21 October 2016. 20 Submissions filed 7 December 2016. 21 NDA, s 42(4)(b) and s 42(4)(c). 22 NDA, Schedule, Dictionary. 23 Acts Interpretation Act 1954 (Qld), Schedule 1. -- 5 of 7 -- 6 Part 5 deals with the orders the Tribunal may make to resolve other issues about trees and applies if a neighbour’s land is affected by a tree and the neighbour cannot resolve the issue using the process under part 4.24 For the reasons outlined, Chapter 3 of the NDA does not apply to the tree. Beriley’s land is therefore not affected by a tree for the purposes of Part 5 of Chapter 3. Part 5, and therefore s 67, has no application in circumstances where, as here, the tree is not one to which Chapter 3 applies. A “genuine dispute” is one in relation to which the Tribunal has jurisdiction. If the Tribunal does not have jurisdiction in respect of a tree dispute because the tree is exempted from the operation of the Act by s 42, s 67 is not enlivened. Conclusion [24] The tree, the subject of the application, is maintained as a condition of the Development Approval and the order of the Planning and Environment Court. Accordingly, the NDA does not apply to the tree. The Tribunal does not have jurisdiction to hear and decide the application by Beriley for a tree dispute. In circumstances where a proceeding is frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process, the Tribunal may dismiss or strike out the proceeding.25 The appropriate order is that the application for a tree dispute filed 13 September 2016 is dismissed. [25] Novadeck seeks its costs. It says that the application is misconceived and without merit; that Beriley persisted with the application despite the jurisdictional issue being brought to its attention; that Beriley has capacity to pay a costs order; and that Novadeck has acted reasonably in offering a sensible basis for resolution as contained in its response. Novadeck says that it has incurred costs including obtaining advice from a consultant town planners, an ecologist, an arborist and its lawyers. [26] Other than as provided under the QCAT Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.26 The Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers that the interests of justice require it to make the order.27 The discretionary power conferred by s 102(1) of the QCAT Act is a broad one.28 The Tribunal must determine whether the circumstances relevant to the discretion: …point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.29 [27] In determining whether it is in the interests of justice to award costs the Tribunal may consider a number of factors including the nature and complexity of the dispute; the relative strengths of the claims made by each 24 NDA, s 59. 25 QCAT Act, s 47. 26 QCAT Act, s 100. 27 QCAT Act, s 102(1). 28 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. 29 Ibid. -- 6 of 7 -- 7 of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.30 [28] The proceeding before the Tribunal is not a complex one. There is nothing before me to support the conclusion that Beriley has acted in a way that has unnecessarily disadvantaged Novadeck. The fact that Beriley’s claim has failed at the first jurisdictional hurdle does not mean that Beriley acted unreasonably in pursuing the application. [29] In all the circumstances, I am not persuaded that the presumption found in s 100 of the QCAT Act that the parties should bear their own costs has been displaced. Accordingly I make no order as to costs. Orders [30] I order that: a) The application for a tree dispute is dismissed; b) There is no order as to costs. 30 QCAT Act, s 102(3). -- 7 of 7 --