Lanyon v Lucas

Debbie Lanyon, a unit owner at 2/447 Hawthorne Road, Bulimba, sought relief under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) against Michelle Lucas, her neighbour, claiming damage to her courtyard caused by tree roots from Ms Lucas's property. Ms Lucas applied to dismiss the application on the basis that Ms Lanyon is not a proper applicant under the ND Act as the land in question is part of a Community Titles Scheme. Ms Lucas argued that the body corporate for the scheme, Coterie CTS 25228, should be the proper applicant.

The court had to determine if Ms Lanyon qualified as a neighbour for the purposes of making an application under the ND Act and if the body corporate should be the proper applicant. The court also had to consider whether the application should be dismissed as frivolous, vexatious, or lacking in substance under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Ms Lanyon argued that an exclusive use by-law in her favour made her the proper applicant, while Ms Lucas argued that the land was common property under the Body Corporate and Community Management Act 1997 (BCCM Act), making the body corporate the proper applicant.

The court found that Ms Lanyon was not the proper applicant under the ND Act as the affected land was common property, and therefore, the neighbour was the body corporate, not Ms Lanyon. However, the court noted that the application had merit and the issue of the agreement between Ms Lucas and the body corporate would need to be heard. The court decided to join the body corporate as the applicant and substituted it as the applicant in respect of all material filed in the application to date. The application for miscellaneous matters was refused, and the application was listed for a directions hearing.

The final orders were that the application for miscellaneous matters was refused, Ms Debbie Lanyon was no longer an applicant, the Body Corporate for Coterie CTS 25228 was joined as the applicant and substituted as the applicant in respect of all material filed in respect of the application to date, and the application was listed for a directions hearing on a date to be advised.