Lanyon v Lucas

[2014] QCAT 180

CITATION: Lanyon v Lucas [2014] QCAT 180

PARTIES:	Debbie Lanyon (Applicant)
v
Michelle Lucas (Respondent)

APPLICATION NUMBER: NDR216-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 6 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for miscellaneous matters is refused;

2.    Ms Debbie Lanyon is no longer an applicant;

3.    Body Corporate for Coterie CTS 25228 is joined as the applicant and is substituted as the applicant in respect of all material filed in respect of the application to date; and

4.    The application is listed for a directions hearing on a date to be advised.

CATCHWORDS:

TREE DISPUTE - application to dismiss -whether applicant is neighbour where land is part of a Community Titles Scheme.

Neighbourhood Disputes (Dividing fences and Trees) Act 2011 (Qld) ss 46, 48, 62
Body Corporate and Community Management Act 1997 (Qld) ss 10, 170.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47

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

1. Ms Lanyon is the owner of a unit located at 2/447 Hawthorne Road, Bulimba and claims that tree roots emanating from Ms Lucas’s property have caused damage to her courtyard.

2. The application is made under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act). Ms Lucas has made a preliminary application to have the application dismissed[1] on the basis that Ms Lanyon is not a proper applicant for the purpose of the Act. Further that she has entered into an agreement with the Body Corporate concerning the matter in question.

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.

3. Ms Lucas says that she has complied with the agreement by removing the tree and that the body corporate agreed to solely look after the repair of the root damage already occurred on “Coterie” property.

4. This is on the basis that only a neighbour[2] may make an application[3] under the ND Act and Ms Lanyon does not qualify as a neighbour for the purposes of the Act.

   [2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 49.

   [3]Ibid s 62.

5. The land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997 (BCCM Act) in which case the neighbour is the body corporate. That is the applicant should be the Body Corporate for Coterie CTS 25228.

6. Ms Lanyon submits that the courtyard though common property under the scheme has been made the subject of an exclusive use by-law in her favour and therefore she is the proper applicant.

7. There is also a letter from the Body Corporate which confirms that Ms Lanyon is the secretary of the body Corporate and that she is authorised to carry on the application on behalf of the body corporate.

8. Scheme land consists of 2 or more lots and other land (the common property for the community titles scheme) that is not included in a lot[4]. An exclusive use by-law attaches to a lot and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of, or other special rights about common property[5].

   [4]Body Corporate and Community Management Act 1997 (Qld) s 10(2).

   [5]Ibid ss 170(1)(a).

9. The land affected by the tree in this case is common property of the Body Corporate and that is not affected by the fact that it may be subject to an exclusive use by-law. As the land is common property it is scheme land in accordance with the BCCM Act and the neighbour is then the Body Corporate and not Ms Lanyon.

10. The Tribunal may dismiss an application where it is frivolous, vexatious or misconceived or lacking in substance[6]. While clearly Ms Lanyon is not the proper applicant that is not to say that the application lacks merit. As to the agreement which Ms Lucas states that she has made with the body corporate that will obviously be an issue for consideration in the application but the Body Corporate will need to be heard in that regard.

    [6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.

11. There is provision in the QCAT Act[7] to join a party where the Tribunal considers the person should have the benefit of the proceeding and may be done on the Tribunal’s initiative.

    [7]Ibid s 42.

12. The parties have both contemplated that the body corporate is a possible applicant and the Tribunal is satisfied that the body corporate is the proper applicant.

13. The orders of the Tribunal are that:-

    a)    The application for miscellaneous matters is refused;

    b)    Ms Debbie Lanyon is no longer an applicant;

    c)    Body Corporate for Coterie CTS 25228 is joined as an applicant and is substituted as the applicant in respect of all material filed in respect of the application to date; and

    d)    The application is listed for a directions hearing on a date to be advised.