Brown v Wallace [2014] QCAT 461

CITATION: Brown & Anor v Wallace [2014] QCAT 461 PARTIES: Robyn Brown and Peter Dimond (Applicant) v Baden Wallace (Respondent) APPLICATION NUMBER: NDR207-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 17 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Applications are dismissed. 2. Each party pays its own costs. CATCHWORDS: TREE DISPUTE – Whether Tribunal has jurisdiction – where neighbour is defined by Act – where statutory definition is exhaustive – where land registered under Building Units and Group Titles Act 1980 - where applicant is not owner or occupier of land registered under Land Title Act 1994 – where applicant not authorised to represent body corporate – COSTS – whether costs payable – where not in interests of justice to order costs Body Corporate and Community Management Act 1997 (Qld) s 100 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 4, 48, 49, 62, 66 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 48, 100 and 102 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 La Bella Waters Body Corporate v Northaust -- 1 of 4 -- 2 Leisure Pty Ltd [2014] QCAT 372 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 APPEARANCES and REPRESENTATION (if any): 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] Robyn Brown and Peter Dimond claim that Baden Wallace’s bamboo obstructs the sunlight to their unit. They claim that the lack of sunlight has led to health issues, mildew and their washing taking longer to dry. [2] They want an order to remove or prune the bamboo. Does the Tribunal have jurisdiction? Who may apply to the Tribunal? [3] A neighbour may apply for an order from the Tribunal.1 [4] The Tribunal’s jurisdiction is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land.2 Who is a neighbour? [5] The Act specifically states that the dictionary in the schedule defines particular words used in this Act.3 The Schedule to the Act defines “neighbour” as “for chapter 3, see section 49”. [6] For Chapter 3 of the Act, a neighbour is as it is defined by the Act and does not extend to its ordinary meaning.4 [7] Ms Brown and Mr Dimond are the owners of Unit 16, Fig Tree Court, 34 Old Pacific Highway, Oxenford. The report from their own arborist defines the site as follows: For the purposes of this report, the property known as Fig Tree Court – 34 Old Pacific Highway, Oxenford, shall be referred to as “the site”. The site, shall specifically include, the rear land areas of four (4) units (these being units 19, 18, 17 and 16) and the rear facades to a height of 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 62. 2 Ibid s 66(2). 3 Ibid s 4. 4 La Bella Waters Body Corporate v. Northaust Leisure Pty Ltd [2014] QCAT 372 at paragraphs [6] to [16]. -- 2 of 4 -- 3 2.3 metres from existing ground level (this height being the line of guttering), their common garden areas at existing ground level, as well as the raised common garden area between the common boundary fence line of property 3 Sussex Court and units 19, 18, 17 and 17 of Fig Tree Court… The site shall be identified as falling in a northern orientation, at a mild gradient for an approximate length of 6.3 lineal metres and vegetated with grass/lawn, leading to a common garden area of approximately 1.35 metres wide. The existing ground level then changes to a raised common garden area, retained by a common block retaining wall at an approximate height of 1.5 metres and mild batter width of approximately 700 millimetres. This raised common garden area continues in an (sic) northerly orientation, for an approximate width of 1.65 metres, leading to the common boundary fence line that divides, properties Fig Tree Court and 3 Sussex Court, Oxenford…5 [8] Section 49 defines “neighbour” in relation to a particular tree or the tree- keeper for a particular tree as: - A registered owner or occupier of land under Land Title Act 1994 (Qld); - A body corporate for land under the Body Corporate and Community Management Act 1997 (Qld); - A body corporate for land under the Building Units and Group Titles Act 1980 (Qld).6 [9] The findings in the report relate to an area that encompasses Unit 16, other units and the common area. Lots and land comprising Fig Tree Court are registered under the Building Units and Group Titles Act 1980 (Qld) by Group Titles Plan No. 3904.7 This includes Unit 16 owned by Ms Brown and Mr Dimond. Ms Brown and Mr Dimond are therefore not a registered owner or occupier of land under the Land Title Act 1994 (Qld). [10] Because they are natural persons, they are also not a body corporate for land under the Building Units and Group Titles Act 1980 (Qld). [11] Ms Brown and Mr Dimond are therefore not a “neighbour” as defined by the Act. [12] In response to the question “What is your connection with the land affected by the tree?”, in her original application, Ms Brown ticked the box “Body Corporate for land”.8 Ms Brown also purported to file an application for the Figtree Court Body Corporate to be joined as a party to the proceeding9, some ten months after the original application. Ms Brown and 5 Report of Mark Brombal, Arboricultural and Landscape Consultant dated 22 July 2013 at paragraphs 2.1.1, 2.1.2 and 2.1.6. 6 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 49(1). 7 Report of Mark Brombal, Arboricultural and Landscape Consultant dated 22 July 2013 at Appendix 2. 8 Application for a tree dispute – Neighbourhood Disputes Resolution Act 2011 filed 2 November 2012. 9 Application to be joined to a proceeding filed 23 September 2013. -- 3 of 4 -- 4 Mr Dimond have also signed correspondence to the Tribunal as “Resident Managers”.10 [13] However, a body corporate acts through its committee unless it is a decision on a restricted issue.11 Neither Ms Brown nor Mr Dimond has adduced evidence of being authorised to act on behalf of the Body Corporate. There is therefore no application by the Body Corporate before the Tribunal. [14] It is not appropriate to join the Body Corporate in the absence of evidence that it supports the application or would be amenable to an order of the Tribunal in the proceeding.12 [15] Both applications are therefore misconceived and lacking in substance. Costs [16] Through his solicitors, Mr Wallace offered to settle the dispute on the basis that the proceedings be dismissed with no order as to costs.13 However, Mr Wallace did not apply to strike out the proceedings for lack of jurisdiction. [17] Both parties failed to identify the lack of jurisdiction and continued the proceedings. [18] The circumstances do not warrant departing from the strong indicator against awarding costs in Tribunal proceedings.14 What are the appropriate Orders? [19] The appropriate Orders are: 1. The Applications are dismissed;15and 2. Each party pays its own costs. 10 Letter Robyn Brown and Peter Dimond to Queensland Civil and Administrative Tribunal dated 21 November 2012. 11 Body Corporate and Community Management Act 1997 (Qld) s 100. 12 Coral Homes (Qld) Pty Ltd v. Queensland Building Services Authority [2012] QCATA 241 at paragraph [11]. 13 Letter Anthony Delaney Lawyers to R Brown dated 28 May 2014. 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100 and 102; Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29]. 15 Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48. -- 4 of 4 --