Ginardi Wright Holdings Pty Ltd v Body Corporate for Whitehaven CTS3635 - [2024] QCAT 321

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ginardi Wright Holdings Pty Ltd and Anor v Body Corporate for Whitehaven CTS3635 [2024] QCAT 321

PARTIES:

GINARDI WRIGHT HOLDINGS PTY LTD

(first applicant)

SIOBHAN REITHMEIER

(second applicant)

v

BODY CORPORATE FOR WHITEHAVEN CTS3635

(respondent)

APPLICATION NO/S:

NDR083-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

31 July 2024

HEARING DATE:

14 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Davies

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where dispute about the location of the trees

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 46, s 47, s 48, s 49, s 53

APPEARANCES & REPRESENTATION:

First Applicant:

Daniel Wright, Director of First Applicant

Second Applicant:
Respondent:

Self-represented

Kate Mathers

REASONS FOR DECISION

Introduction

This is a tree dispute between neighbours. In June 2020 a Peter Stuart Armstrong (‘Mr Armstrong’) made an application to the Queensland Civil and Administrative Tribunal (‘QCAT’). That application (‘Application’) was in Form 51 and was made under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘ND Act’).
In the Application Mr Armstrong described himself as the registered owner of the land. This being a reference to land at 14 Dunlop Street, Bowen Hills, an inner Brisbane suburb. Although Mr Armstrong was the sole applicant the Application was signed by both him and a ‘W Armstrong’.
A title search conducted in July 2020 disclosed that Mr Armstrong and Wendy Anne Armstrong (‘Ms Armstrong’), as joint tenants, were the registered owners of an estate in fee simple of land described as Lot 23 on RP 10110 and Lot 3 on RP 212536.
In the Application Mr Armstrong named the ‘Body Corporate for Whitehaven’ as the respondent. The Body Corporate’s Form 52 response to application for a tree dispute (‘Response’) was dated 29 July 2020. The Response was in the name of ‘Body Corporate for Whitehaven CTS 3635’. The Response identified the Body Corporate’s land, being land that adjoined the land registered in the names of Mr and Ms Armstrong. The street address of the Body Corporate was given as 15 Roche Avenue Bowen Hills. A title search conducted in July 2020 showed that the Body Corporate for Whitehaven CTS 3635 is the registered owner of land described as ‘Common Property of Whitehaven Community Titles Scheme 3635 Community Management 3635’.
By Tribunal directions dated 18 September 2020, Ms Armstrong was joined as an applicant and the name of the respondent was amended to ‘Body Corporate for Whitehaven CTS 3635’.[1]
[1]Although the Body Corporate was styled as ‘Applicant’ in the Directions it is clear reference to the Respondent.
There was a further amendment to the parties on 13 October 2021 when, by Tribunal directions, the present first applicant, Ginardi Wright Holdings Pty Ltd and the present second applicant, Siobhan Reithmeier were joined as applicants. Some nine months later, in July 2022, Mr and Ms Armstrong were removed as applicants by a further Tribunal direction.
Thus, the parties at the time of the hearing were Ginardi Wright Holdings Pty Ltd (‘First Applicant’), Ms Reithmeier (‘Second Applicant’)[2] and the Body Corporate for Whitehaven CTS 3635 (‘Respondent’). There has been no application to amend the Application by the Applicants. Therefore, the terms of the Application remained, at the hearing, in the terms it was filed.
[2]Collectively ‘the Applicants’.

Matters addressed in the Application and Response

The Application identified the species of tree that prompted the application as Celtis Sinensis – Chinese Elm. A diagram that formed part of the Application[3] identified six Chinese Elm trees that were sought to be removed. All six trees identified in the Application for removal were shown by Mr Armstrong as being on his side of the boundary.
[3]Application Part D, [32].
In addition, Mr Armstrong included in the Application a document entitled Tree Location Survey which was dated in March 2020 and bears the name ‘Ken McDonald Surveys’ (‘Tree Location Survey’). That document shows the location of a number of trees, including 6 Chinese Elms in relation to a line marked ‘Boundary Line’. There is a broad consistency between the diagram and the Tree Location Survey. The Tree Location Survey contains somewhat more information including tree trunk diameters[4] and detailing of exposed tree roots at existing ground level.
[4]Marked by the symbol Æ.
The Response, in summary, contended the trees identified by Mr Armstrong in the Application ‘traverse the common boundary and act as a vegetative barrier between the Applicant and the Respondent’.[5]
[5]Part C of the Response, 1.
In support of this contention the Respondent included in its Response a diagram[6] which shows five elm trees (identified as A-E) on the common boundary. In the case of the elms designated A, B and C the Respondent’s diagram shows those trees as being substantially on the Respondent’s side of the boundary line marked on that diagram
[6]Part C of the Response, 9.
As required by the relevant QCAT Forms, the Application and the Response also addressed other matters that are or may be germane to a tree dispute between neighbours under the ND Act. These matters include details of pre-Application attempts to resolve the dispute. The Response was somewhat more detailed in relation to the questions posed in the QCAT forms than the Application.
As will become apparent from what is set out below, the essence of the dispute retained this structure notwithstanding the change in the identity of the Applicants.
Before addressing the specific issues raised by this dispute it is appropriate to say something about the statutory framework under which disputes of this nature are determined.

Tree disputes – statutory framework

The governing statute for disputes of this nature is the ND Act. The objects of the ND Act are set out in s 3.[7] Relevantly, the objects are to provide rules about each party’s responsibility for trees with the aim of resolving issues about trees without a dispute arising. That object has not been achieved in this matter, so it is necessary to look to a second object of the ND Act which is to facilitate the resolution of disputes about trees that do arise.
[7]Unless otherwise indicated, all references to a specific section are to a section in the ND Act.
What is a ‘tree’ for the purposes of the ND Act is defined in s 45. There is no dispute between the parties that the Chinese Elms, the subject of the Application, are ‘trees’ for the purposes of this matter.
The ND Act provides, in s 41(1), that a ‘tree-keeper’, a term that is defined in s 48, is responsible for the proper care and maintenance of the tree-keeper’s trees. Determination of who is the tree-keeper is essential to the resolution of a dispute under the ND Act. This is because the term ‘neighbour’, defined in s 49, relevantly depends on the identity of the tree-keeper and whether land of the neighbour is ‘affected’ by a particular tree that is situated on the land of the tree-keeper.
The ND Act, in s 46, provides that land is affected by a tree if the tree has caused is causing, or is likely within the next 12 months, to cause serious damage to the land or any property on the land or substantial, ongoing and unreasonable interference with the neighbours use and enjoyment of the land and which adjoins the land on which the tree is situated.
Importantly for this matter, the ND Act sets out, in s 47, a test to be applied to determine if a tree is situated on land. It relevantly provides that ‘[a] tree is situated on land if the base of a tree trunk is … situated wholly or mainly on the land’.
QCAT is invested with ‘jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that as at the date of the application to QCAT, land is affected by a tree’.[8]
[8]ND Act, s 61.
The ND Act, in s 65 (requirements before order may be made) and s 66 (orders QCAT may make) govern QCAT’s jurisdiction in disputes of this nature and the orders that this Tribunal can make. Finally, Division 4 (ss 70-75) address matters for this Tribunal to consider in coming to a decision.

Evidence

At the hearing two expert witnesses gave evidence. The first of these was Ian Gray, a surveyor under whose supervision the Survey Plan that became exhibit 2 was prepared. The second expert witness was Jonathan Hobbs, who was appointed pursuant to directions of the Tribunal dated 16 September 2021. Mr Hobbs produced a Tree Assessment Report dated 19 March 2022which was admitted into evidence as exhibit 3.
Both expert witnesses were examined by the parties or their representatives

Factual background

The factual matters that are not in dispute can be summarised as follows:
(a)Subsequent to the Application, although the locus and dimensions remains the same, Mr Armstrong’s land, now registered in the names of the Applicants, had been reconfigured and acquired new property descriptions. The uncontradicted contention of the Applicants is that, at the time of the hearing, the First Applicant is the registered owner of a parcel of land now described as Lot 3 on SP324897 and the Second Applicant is the registered owner of land now described as Lot 4 on SP324897. Both Lots have a street frontage to Dunlop Street. In addition, Lot 4, being a corner block, also has a street frontage to Roche Street.
(b)The Application contained, in Part D, paragraph 32, a diagram that identified, by numbers, eleven trees.[9] By a handwritten note to that diagram Mr Armstrong noted ‘Trees 5, 6, 7, 8, 9 & 10 to be removed’.
(c)By a Tribunal Direction made on 8 July 2022, the parties were required, if an agreement was not adopted by the parties, to
file in the Tribunal a land survey of the properties at 14 Dunlop Street, Bowen Hills QLD 4006 and 15 Roche Avenue, Bowen Hills QLD 4006, which identifies the correct boundary line and the location of each tree to determine the correct tree keeper/s …
(d)In compliance with this direction the parties jointly commissioned the firm Lawson Surveys to prepare a survey plan.
(e)The survey plan was prepared by Lawson Surveys and was given the number IS314088. That plan was endorsed with the signature of Ian Gray, a director of Lawson Surveys on 13 October 2022. As required by the Tribunal Direction, Plan IS314088 set out the boundary between the properties of the parties and also set out the location of certain trees.
(f)Plan IS314088 was, with the agreement of the parties, marked with numbers identifying the trees which, at the time of the hearing, remained in contention between the parties. The numbering adopted was consistent with the numbering employed by Mr Armstrong in the diagram that formed part of the Application.
(g)The trees in contention at the time of hearing were the trees numbered by Mr Armstrong as trees 5, 6, 8, 9 and 10 (‘Trees in Contention’). Plan IS314088 was marked with numbers identifying the Trees in Contention and became exhibit 2.
(h)Of the Trees in Contention, trees marked 5 and 6 in exhibit 2 are in issue between the Respondent and the Second Applicant and trees marked 8, 9 and 10 are in issue between the Respondent and the First Applicant.
[9]Numbered by Mr Armstrong as 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13.
Notwithstanding the production of Plan IS314088, the location of each of the Trees in Contention and their relationship to the boundary remained in contention between the parties at the hearing. This is because, as will be discussed further below, the Respondent contends that exhibit 2 ‘is misleading and may be inaccurate as it measures the trees’ location at waist height rather than at the base of the trees.’[10]
[10]This contention, orally expressed at the hearing, was formulated in the quoted terms in the Respondent’s post hearing submissions.

Issues

Given the statutory and factual background set out above; to come to a determination of the respective rights and duties of the parties in this matter a number of issues need to be addressed. I consider that the following matters, phrased in the form of questions, provide a useful framework:
(a)On whose land are each of Trees in Contention situated?
(b)Who is the tree-keeper for each of the Trees in Contention?
(c)Who is the neighbour for each of the Trees in Contention?
An answer to the first question is of fundamental importance as the answers to questions (b) and (c) are contingent on an answer to question (a).

Discussion

By a direction issued at the close of the hearing in this matter the parties were required, with reference to the evidence at the hearing, to provide written submissions addressing, amongst other matters, which party was the tree-keeper and why for each of the Trees in Contention. The issue of who is the tree-keeper necessarily involves a consideration of not only s 48 of the ND Act (who is a tree-keeper) but also s 47 (when is a tree situated on land)
The Applicants submitted that the First Applicant was the tree-keeper for Trees in Contention numbered 8, 9 and 10 and that the Second Applicant was the tree-keeper for the Trees in Contention numbered 5 and 6. In support of this submission the Applicants relied principally on the Joint Survey. That is, the Survey Plan prepared under the supervision of Mr Gray which became the basis for exhibit 2.
The Respondent submitted that the Trees in Contention are on the common boundary making the Applicants and the Respondent ‘joint tree-keepers and therefore joint tree-owners.’[11] The issue that the Respondent identified with exhibit 2 is that it ‘is misleading and may be inaccurate as it measures the trees’ location at waist height rather than at the base of the tree’.[12]
[11]Respondent’s post hearing submissions, 1 [1].
[12]Respondent’s post hearing submissions, 1, [6].
The difficulty with the concept of joint tree-keepers, as advanced by the Respondent, is that the ND Act is framed in binary terms – a person is either a tree-keeper or a neighbour – and the characterisation or a person being one or the other is, relevantly for present purposes, based on ‘the land on which the tree is situated’.[13]
[13]The quoted term is used consistently in the definition of who is a tree-keeper set out in s 48 of the ND Act.
In saying this I note that the ND Act does, in s 53, recognise that there may be more than one tree-keeper. However, I do not consider that this is a warrant for the concept of joint tree-keepers as advanced by the Respondent and re-stated in its post-hearing submissions. Rather, s 53 is in Chapter 3, Part 3 of the ND Act under the heading of ‘Responsibilities, liabilities and rights’ and immediately follows s 52 which sets out the responsibilities of a tree-keeper – that is a tree-keeper identified by recourse to s 48. I consider that s 53 does no more than recognize that there may be more than one registered owner of a lot under the Land Title Act 1994 (Qld). To suggest otherwise would, in my view negate the clear wording of s 47(1).
As mentioned above, the ND Act addresses the concept of when a tree is situated on land in s 47 (1). Given that the trees in issue are extant trees then the ND Act provides, relevantly for this matter, that the Trees in Contention are situated on land if the base of the relevant tree trunk is situated wholly or mainly on the land.
Thus, the apposite test for determining who, as between the Applicants and the Respondent, is the tree-keeper (and thus who is the neighbour) for each of the Trees in Contention is by addressing, with reference to the evidence, the question of on whose land is the base of the tree trunk wholly or mainly situated.
What does the evidence show? Exhibit 2, the identification survey plan produced by Lawson Surveys, shows that trees 5, 6, and 8 to be wholly on the land of the Applicants and trees 9 and 10 to be mainly on the land of the Applicants.
However, that is not necessarily determinative of the issue. That is because Mr Gray, the surveyor who supervised a survey of the land and endorsed the plan of survey that resulted from that survey,[14] said that the Trees in Contention marked on exhibit 2 were the position of the trees at waist height.[15] Given the terms of s 47 and its reference to the base of the tree trunk as the key to determining when a tree is situated on land, identifying the trees at waist height was, at best, unhelpful. It would have been preferrable if Lawson Surveys produced a plan which clearly set out the base of each tree trunk in relation to the boundary line between the land of each party.
[14]The identification survey (No IS314088) formed the basis for exhibit 2.
[15]Recording at 11:24 am and 11:26 am.
Mr Gray said initially that he could not confirm if the base of the Trees in Contention were in the lots as set out in exhibit 2 but then went on to say, ‘it looks as though the trees, even at ground level, are in those lots.’
When questioned about the Trees in Contention by the representative of the Respondent, Mr Gray was asked whether a lean in the trees toward the land of the Applicants would mean that the base of the trees would be in the land of the Respondent. Mr Gray[16] responded that the trees would not change position dramatically (i.e. that is between waist height and the base of the trunk).
[16]Recording at 11:26 am.
Some further light was thrown on this issue by the evidence of Mr Hobbs in his Tree Assessment Report dated 19 March 2022 (‘the Hobbs Report’).[17] The Hobbs Report mentions, in section 2.4 the uncertainty about the location of the trees and assumes, for the purposes of the report, that the trees are growing on the boundary.
[17]Exhibit 3.
Of more immediate relevance to the question of on whose land is the base of the trunk each of the Trees in Contention is the main photo on page 11 of the Hobbs Report. That photo shows the Trees in Contention. It is taken from the Respondent’s land looking toward the land of the Applicants. Whilst that photo does show a lean in some of the Trees in Contention it does not, in my view, show a sufficient lean in those trees from their base to waist height for me to conclude that the base of each of the Trees in Contention are wholly or mainly situated on the Respondent’s land. In that regard, I agree with the assessment of Mr Gray.
As a result, I have concluded that in respect of the Trees in Contention, the tree-keeper for the trees identified in exhibit 2 as trees 5 and 6, is the registered owner of Lot 4 on SP324897. That is, the Second Applicant. Further, that the tree-keeper for the trees identified in exhibit 2 as trees 8, 9 and 10 is the registered owner of Lot 3 on SP3824897. That is, the First Applicant. Consequently, the neighbour, as that term is used in s 49 of the ND Act is the Respondent.
A result of this finding is that the Application, instituted by Mr Armstrong and adopted by the Applicants, based as it was on Mr Armstrong’s belief that the trees in issue traversed the boundary, was premised on an unsound foundation.
The neighbour, the Respondent, has not advanced a case that its land is affected by any of the Trees in Contention. As a result, the decision is that this Application is dismissed with no further order.