Fedrick & Anor v Malatino [2013] QCAT 291

CITATION: Fedrick & Anor v Malatino [2013] QCAT 291 PARTIES: Howard Fedrick and Lynette Fedrick (Applicant) v Giuseppina Rosa Malatino (Respondent) APPLICATION NUMBER: NDR013-13 MATTER TYPE: Other civil dispute matters HEARING DATE: 18 June 2013 HEARD AT: Brisbane DECISION OF: Bevan Hughes, Member DELIVERED ON: 18 June 2013 DELIVERED AT: Brisbane ORDERS MADE: The trees in this Application are not excluded from the Tribunal’s jurisdiction by section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. CATCHWORDS: Application of Act to tree – tree maintained as condition of development approval - jurisdiction Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, sections 42, 61 and 64 Cohn and Ors v Gandhi and Anor [2012] QCAT 84, considered APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION -- 1 of 4 -- 2 What is this Application about? [1] On 17 January 2013, Mr Howard Fedrick and Mrs Lynette Fedrick applied to the Tribunal to have the trees removed from their neighbouring property at 26 Tick Street, Mount Gravatt East. That property is owned by Mrs Giuseppina Malatino1. [2] The Brisbane City Council elected to appear in the proceedings2. This is because vegetation on the property is protected by Council’s Natural Assets Local Law 2003. [3] Mrs Malatino contends that because the trees are maintained as a condition of development approval, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (“the Act”) does not apply. She therefore contends that the Tribunal does not have jurisdiction. Does the Tribunal have jurisdiction? [4] The Tribunal may only make orders about trees to which the Act applies.3 The Act does not apply to trees planted or maintained as a condition of development approval.4 [5] On 15 December 2009, the Council approved development of the property5. Relevant conditions of the approval6 are: 16 Fauna Spotter Prior to site works commencing, a Fauna Spotter… shall inspect the site to ensure identification of any wildlife (fauna) or habitat features (eg. Nests, tree hollows) prior to clearing. a) Vegetation Clearing Not to Commence Clearing operations and other site works are not to commence until the Fauna Spotter has certified that the site has been fully inspected and any necessary fauna protection measures or relocation procedures implemented. A brief letter / report from the Fauna Spotter is to be supplied to the Ecologist, Development Assessment, to demonstrate compliance with this condition, prior to the commencement of site works. 17 Landscape the Site – Concept Plan approved 1 Submissions on behalf of Respondent filed 11 March 2013, paragraph 4. 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 64. 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 61. 4 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 42(4)(c). 5 Letter Brisbane City Council to Queensland Civil and Administrative Tribunal, dated 14 March 2012. 6 Letter Brisbane City Council to Queensland Civil and Administrative Tribunal, dated 14 March 2012, Attachment A. -- 2 of 4 -- 3 Retention of existing trees shown as being retained on the approved plans. [6] There is no dispute that the trees in this Application are not part of the trees to be retained as part of the Landscape Plan under condition 17. The Council notes that the approved plan “shows two trees to be retained in the south west corner… located well away from the vegetation the subject of the dispute”.7 [7] However, Mrs Malatino contends that the trees are maintained under condition 16(a) of the development approval and “cannot be cleared or otherwise dealt with”8. Mrs Malatino then cites a previous Tribunal decision9 as authority for the proposition that the Act therefore does not apply to the trees. This is despite the council expressly stating that in its view, the trees are not maintained as a condition of development approval10. [8] At the outset, I find that the previous Tribunal decision cited by Mrs Malatino is confined to its own facts. The learned Member determined that the trees in that particular application were maintained as a condition of the development approval before her.11 I do not consider there is any general principle from the learned Member’s reasoning to be applied here. [9] Condition 16 does not require maintaining the trees. Condition 16 imposes obligations on the land owner prior to commencing site works. By using the terminology “clearing operations”, condition 16 expressly contemplates that the trees may well be cleared. By using the terminology “and other site works”, condition 16 expressly contemplates other work. There is no reason why this clearing or other work should not extend to work ordered by the Tribunal. [10] This is because Condition 16 simply requires that the land owner undertake fauna protection, if necessary, before clearing or other work (whether of the land owner’s own volition or in compliance with a Tribunal order). [11] Condition 16 therefore does not require that the trees be maintained as part of any work. It simply requires due diligence about the fauna and their habitats before clearing or other work, including any work ordered by the Tribunal. 7 Letter Brisbane City Council to Queensland Civil and Administrative Tribunal, dated 14 March 2012. 8 Submissions on behalf of Respondent filed 11 March 2013, paragraph 11. 9 Cohn & Ors v. Gandhi and Anor [2012] QCAT 84. 10 Letter Brisbane City Council to Queensland Civil and Administrative Tribunal, dated 14 March 2012. 11 Cohn & Ors v. Gandhi and Anor [2012] QCAT 84 at [16]. -- 3 of 4 -- 4 Conclusion [12] I therefore find that the trees in this Application are not planted or maintained as a condition of development approval. [13] I therefore find that the trees in this Application are not excluded from the Tribunal’s jurisdiction. -- 4 of 4 --