Campbell v Mullins [2016] QCATA 138

CITATION: Campbell v Mullins [2016] QCATA 138 PARTIES: Elizabeth Campbell (Applicant/Appellant) v Glen Mullins (Respondent) APPLICATION NUMBER: APL513-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 19 September 2016 DELIVERED AT: Brisbane ORDERS MADE: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: 1. Leave to appeal is refused. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the parties are owners of neighbouring riverside properties – where a stand of trees is partially on the common boundary between the properties – where the applicant seeks leave to appeal a tribunal decision that it did not have jurisdiction to hear the dispute – whether the relevant tree is planted and maintained as a condition of a development approval – whether the tree is exempt from the operation of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – whether the tribunal erred in law or fact – whether leave to appeal should be granted Integrated Planning Act 1997 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 41, 42, 48, 52, 61, 64 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61, 71, 72, 88 -- 1 of 9 -- 2 Sustainable Planning Act 2009 (Qld) Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 S v Crimes Compensation Tribunal [1998] 1 VR 83 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). REASONS FOR DECISION [1] This application for leave to appeal or appeal is from a tribunal decision in the neighbourhood disputes jurisdiction dismissing an application for an expert arborist’s report on the safety of a tree (the red gum) on neighbouring land. The tree laws [2] Section 61 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) gives QCAT jurisdiction to hear and determine any matter about a tree. Chapter 3 NDA applies to trees and land mentioned in s 42. It provides for ways in which a person (applicant) may deal with an issue about a tree defined in s 45 NDA affecting relevant land. Relevant land is affected by a tree if the tree is likely to cause serious injury or damage or unreasonable interference with the enjoyment of relevant land adjoining that on which it is situated (neighbouring land). [3] The tribunal has a discretion to make appropriate protective or preventative orders (a tree order) including for an assessment, maintenance work or removal order1 but safety is the paramount consideration,2 and a living tree should only be removed as a last resort.3 [4] Non-compliance with the terms of a tree order within the allowed time may result in enforcement action being taken by the local authority (BCC).4 Otherwise, ignoring a tree order without a reasonable excuse is a fineable offence. [5] However, s 42(4) NDA provides: This chapter does not apply to trees … maintained— … (b) under an order of a court or tribunal; or (c) as a condition of a development approval. 1 QCAT Act s 71. 2 Ibid s 72. 3 Ibid ss 61(a),(g), (2). 4 Ibid s 88(5)(b). -- 2 of 9 -- 3 The context [6] The applicant and respondent own neighbouring riverfront land in Brisbane. The subject matter of the dispute is a red gum affecting the applicant’s land maintained by the respondent. The red gum is one of a stand of three trees “overwhelmingly” on the respondent’s side of the common boundary, while the other two are admittedly on the applicant’s land. [7] The respondent, as the owner of the neighbouring land, is the “tree keeper”5 responsible for the proper care and maintenance of the red gum, including ensuring that it does not cause serious personal injury, property damage or unreasonably interfere with the applicant’s enjoyment of the land.6 He lodged Development Application A001847091 in 2007 to carry out building work – house or small lot. It was approved by the BCC on 15 February 2008 and the Planning and Development Court on 21 August 2009. [8] The DA makes no specific reference to the red gum, but the tribunal held that the term “drawings and documents or similar expressions” it uses included a landscape drawing forming part of the approval7 which sufficiently identifies the red gum as the tree in issue and notes it as “protect and retain”. [9] Condition 7 of the DA requires the development (including landscaping ... and other external spaces) to be carried out (except for ‘minor changes’) in accordance with the approved drawings and/or documents. Other DA conditions with a bearing on the dispute are: Landscape Architecture and Open Space Planning 13) Private Certification – Concept Plan Submitted Implement the approved Landscape Plan for landscape areas nominated on the approved plans of layout (A.1.MP.1 Issue A dated 20 July 2007) in accordance with the approved Landscape Concept Plan, relevant City Plan Codes and Best Trade Practice. GUIDELINE This condition does not require the submission of an Operational Works or Schedule 12 application to Council for approval. PROOF OF FULFILMENT The Compliance Certificate – Landscape Works is submitted to Council together with As Constructed plans. Timing Prior to commencement of site works 5 NDA s 48(1). 6 Ibid ss 41(1), 52. 7 A1.MP.1. -- 3 of 9 -- 4 13(a) Certify Works On completion provide written certification from: ● A qualified and experienced Landscape Architect that the prepared drawings comply with the relevant City Plan Codes and Best Trade Practice (Part A of the Compliance Certificate – Landscape Works); and ● A licensed and experienced Landscape Architect or Landscape Contractor that the completed landscaping complies with the detailed landscape plan, Council Standards and Best Trade Practice (Part B of the Compliance Certificate – Landscape Works). Submit a copy of the as-constructed detailed Landscape Plan together with the completed Compliance Certificate – Landscape Works, to the Landscape Architect, Development Assessment. PROOF OF FULFILMENT The Compliance Certificate – Landscape Works is submitted to Council together with As Constructed plans. 13(b) Construct Designed Works Construct landscaping in accordance with the prepared detailed Landscape Plan; the relevant City Plan Codes and Best Trade Practice. PROOF OF FULFILMENT The Compliance Certificate – Landscape Works is submitted to Council together with As Constructed plans. Prior to commencement of use Prior to the commencement of the use and then to be maintained 28) Carry Out The Approved Development Carry out the approved development generally in accordance with the approved drawing(s) and/or document(s). GUIDELINE This condition refers to the approved plans, drawings and documents to which the approval relates and is the primary means of defining the extent of the approval. Approved plans, drawings and documents are stamped PLANS and DOCUMENTS referred to in the APPROVAL and are dated to reflect the date of approval of the application of Council’s Delegate. While development is occurring on the site and then to maintained 30) Maintain The Approved Development To be maintained -- 4 of 9 -- 5 Maintain the approved development (including landscaping, parking, driveways and other external spaces) in accordance with the approved drawing(s) and/or documents, and any relevant Council or other approval required by the conditions. GUIDELINE This condition restricts changes that can be made to the approved development. Approved plans and documents are stamped PLANS and DOCUMENTS referred to in the APPROVAL and are dated to reflect the date of determination of the application by the Council’s delegate. The extent to which plans can be modified is constrained by the definition of ‘minor change’ in schedule 10 and the requirements of section 3.5.24 of the “Integrated Planning Act 1997”. It will be necessary to make a new application if the change is not a minor change. For any enquires (sic) about this condition, please contact the Assessment Manager. 36) Private Certification – Concept Plan Submitted Implement the approved Landscape Plan for landscape areas nominated on the approved plans of layout A1.MP.1 Issue A dated 20 July 2007 in accordance with the approved Landscape Concept Plan, relevant City Plan Codes and Best Trade Practice. GUIDELINE This condition does not require the submission of an Operational Works or Schedule 12 application of Council for approval. PROOF OF FULFILMENT The Compliance Certificate – Landscape works is submitted to Council together with As Constructed plans. 36(a) Certify Works On completion provide written certification from: ● A qualified and experienced Landscape Architect that the prepared drawings comply with the relevant City Plan Codes and Best Trade Practice (Part A of the Compliance Certificate – Landscape Works); and ● A licensed and experienced Landscape Architect or Landscape Contractor that the completed landscaping complies with the detailed landscape plan, Council Standards and Prior to commencement of site works Prior to commencement of use -- 5 of 9 -- 6 Best Trade Practice (Part B of the Compliance Certificate – Landscape Works). Submit a copy of the as-constructed detailed Landscape Plan together with the completed Compliance Certificate – Landscape Works, to the Landscape Architect, Development Assessment. PROOF OF FULFILMENT The Compliance Certificate – Landscape Works is submitted to Council together with As Constructed plans. 36(b) Construct Designed Works Construct landscaping in accordance with the prepared detailed Landscape Plans; the relevant City Plan Codes and Best Trade Practice. PROOF OF FULFILMENT The Compliance Certificate – Landscape Works is submitted to Council together with As Constructed plans. Prior to the commencement of the use and then to be maintained [10] In a letter to the tribunal dated 30 September 2015, the BCC confirmed: “The development approval package at conditions number 28 and 36 relate to the landscape plan approved drawing A1.MP.1 issue A. The approved drawings and document section of the approval package lists one of the approved drawings as landscape plan A1.MP.1 issue A. The landscape plan identifies the eucalypt tree to be protected and retained. The timing requirement for condition number 28 is “while development is occurring on the site and then to be maintained”. Accordingly, council is of the view that the eucalypt tree in dispute is a tree maintained as a condition of development approval to which the NDA does not apply.” The grounds of the appeal [11] The applicant contends that the red gum does not qualify for exempt status under the NDA and that in wrongly deciding to the contrary, the tribunal misinterpreted the intended meaning and scope of the exemptions in subsection 42(4), misconstrued their legal effect or misapplied them to the facts of the case. [12] The applicant develops an assortment of intricate arguments in written submissions as to why the red gum is not maintained by the respondent as a condition of the DA (or under a court order) but essentially asserts that the tribunal, respondent and local authority (BCC) all fell into the trap of giving the text of subsections 42(4)(b) and (c) NDA too broad and literal a meaning instead of the preferable narrower, more nuanced and contextual -- 6 of 9 -- 7 interpretation that (she says) best achieves the NDA’s main purpose and stated objects. [13] The applicant argues the red gum is not exempt because the phrase “as a condition” refers to a specific condition containing a direct requirement or terms requiring the red gum to be maintained. Alternatively, she denies that the red gum is maintained pursuant to any of the DA conditions relied on in the tribunal reasons at [36], [42], [55] and [60] because they are general (two of them standard) conditions which, even read together, do not (a) clearly identify the red gum or (b) specify that it be maintained beyond the construction phase. [14] Moreover, she says, the retention of a tree does not even qualify as “development” in the nature of “landscaping work” under the Integrated Planning Act 1997 (Qld) (IPA) and, therefore, to the extent that conditions 28, 30 and 36 of the DA refer to the approved development (including landscaping) they do not include the red gum. [15] It is true that the IPA applied when the DA was made in 2008 but as at the date of the tribunal decision in 2015 it had been repealed and replaced by the Sustainable Planning Act 2009 (Qld). The definition of “development approval” in the two statutes is not materially different. [16] The IPA defines “development approval” as a decision notice that approves development applied for in a development application (whether or not the approval has conditions attached to it or not). “Condition” is undefined, but bears its common meaning. “Development” is relevantly defined in s 7 IPA as carrying out building or operational work; neither of which specifically include moving or maintaining a natural or landscape feature except in relation to a heritage listed place. [17] However, there is no compelling reason why the retention and the ongoing maintenance of the red gum has to meet the IPA definitions of development, landscaping or related activity to be a valid and binding condition of the DA. [18] The applicant also disputes whether A1.MP.1 is a development approval document because it was not certified as required by condition s 36(a) and (b) of the DA, and therefore, the approved “development” did not have to be carried out in accordance with it despite the specific reference to the retention of the red gum. [19] The tribunal rightly rejected the applicant’s submission that the lack of certification means that the concept landscape plans are not a “drawing or document” for the purposes of condition. It also found there was nothing in the relevant approval documentation suggesting that the protection and retention or maintenance of the red gum was limited to the construction phase. It would be absurd to conclude otherwise. [20] The issue of whether the red gum is NDA exempt, therefore, depends solely on (a) the intended legal meaning and effect of the words of exception in s 42(4), and (b) whether the agreed or probable facts meet that statutory -- 7 of 9 -- 8 description. This often (but not always) raises a question of law for appeal purposes8 because even when a legislative provision is correctly interpreted or construed, it can be wrongly applied because a flaw in reasoning somehow invalidates the decision. [21] In other words, where the correct legal test is applied a finding of fact may be overturned as an error of law if it is contrary to the “true and only reasonable answer”. Here, however, the classification of the red gum as NDA exempt is not such an error unless it is irrational or not open on the totality of the evidence.9 [22] A condition is something on which something else depends. It is the condition’s substance, not its form, of that counts. No one suggests that ss 42(4)(b) and (c) are intended to be understood in any unusual or are arranged in such a way as to change the everyday meaning of the words used. The language used in the provision is clear enough to negate the applicant’s propositions. [23] Her self-serving interpretation of s 42(4) is misconceived and plainly inconsistent with NDA purposes. There is nothing in the text or context suggesting that any obligation to protect and retain the red gum has to be the sole subject matter of a stand-alone condition in the DA for it to qualify as exempt. In statutory construction, the singular includes the plural. It might be different if the exemption applied to trees maintained “under” rather than “as” a DA condition. [24] The upshot is that the respondent’s development application was obviously approved subject to (or conditional on) the red gum being retained and maintained by the respondent. [25] The same conclusion could just as easily be reached by an alternate (more pragmatic) route. The BCC considers the maintenance of the red gum to be a condition of the DA. The respondent, no doubt, assumes ongoing responsibility for maintaining the red gum because the BCC holds the view that he is required to by the DA and a failure to do so would breach the DA and make him liable to potential breach action. [26] The first two proposed grounds, therefore, have no reasonable prospects of success on appeal, even by way of rehearing, because there is no demonstrable error in the construction of the NDA or the application process. [27] Neither of grounds three or four satisfy the gateway criteria for a grant of leave either. [28] Proposed ground three asserts that this is a case of mistaken identity because the tribunal made its decision about the wrong red gum because the notation on A1.MP.1 wrongly refers to the two eucalypts on her land, 8 Hayes v Federal Commissioner of Taxation (1956) 96 CLR, 47,51. 9 S v Crimes Compensation Tribunal [1998] 1 VR 83, 90-91. -- 8 of 9 -- 9 not the red gum. But the tribunal was satisfied of the fact that the red gum is the tree in question. This finding was plainly open on the evidence, including the applicant’s own photographs, and, therefore, there is no arguable case for overturning it on appeal. [29] The applicant also suggests that she is now forced to maintain the two eucalypts on her land as a condition of someone else’s development approval because the tribunal mistakenly thought they were on the respondent’s land. However, the only order the tribunal made was to dismiss the application. The mistaken finding at [60] of the published reasons does not affect the overall integrity of the decision or the validity of the order. What the applicant does with the trees on her land is a matter for her and any relevant laws or local authority regulations. [30] Finally, in ground four, the applicant complains about the tribunal receiving and acting on information from BCC because she says s 64 NDA is restricted to advice about work on a protected tree and does not authorise BCC to intervene in QCAT proceedings “to prosecute a preliminary point of law by application and written submission”. She wants the appeal tribunal to determine the correct meaning of s 64 NDA to help prevent such a “breach of natural justice” from happening again. [31] However, as the tribunal pointed out, aside from s 64 NDA, the procedure to be adopted is a matter within the tribunal’s discretion consistently with achieving justice without undue technicality including strict adherence to the evidentiary rules that apply to court proceedings. The tribunal was entitled to hear the BCC as the body responsible for administering and enforcing compliance with development approvals and give due weight to its opinion of the tree’s status without abdicating its obligation to decide questions of law for itself. The BCC letter was also relevant and significant for a collateral purpose. It explained why the respondent is maintaining the red gum as (or, at least, as if it was) a condition of the DA. In any case, the council’s view is merely consistent with what is, on any reasonable and common sense analysis, a legally and circumstantially sound tribunal decision. [32] For the stated reasons, the appeal is dismissed insofar as questions of law are concerned and leave to appeal is refused to the extent it is needed to argue errors of facts or mixed questions. -- 9 of 9 --