| CITATION: | Lowe v BGC Technical [2016] QCATA 124 |
| PARTIES: | Arthur Lowe Eileen Mabel Lowe (Applicant/Appellant) |
| v | |
| BGC Technical Ltd (Respondent) |
| APPLICATION NUMBER: | APL472-15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President Member Browne |
| DELIVERED ON: | 3 June 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal on ground three refused. 2. Appeal on grounds one and two allowed. 3. The decision of the Tribunal made on 15 October 2015 is set aside. 4. The applicants’ application for a tree dispute filed on 24 December 2014 is returned to the Tribunal for consideration according to law and the findings disclosed in these reasons. |
| CATCHWORDS: | APPEAL – NEIGHBOURHOOD DISPUTE – TREE DISPUTE – JURISDICTION OF TRIBUNAL – where lot owners filed application for a tree dispute – where ‘tree keeper’ owns adjoining property – whether a lot owner subject to the Building Units and Group Titles Act 1980 (Qld) is a ‘neighbour’ under s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) APPEAL – ERROR OF LAW – JURISDICTION OF TRIBUNAL – where Tribunal considered whether applicants are ‘neighbours’ under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where Tribunal found ‘land’ affected by the trees is scheme land under the Building Units and Group Titles Act 1980 (Qld) – where Tribunal found applicants do not have standing – whether error in the Tribunal’s decision to dismiss the applicants’ application Body Corporate and Community Management Act 1987 (Qld), s 325 Brown & Anor v Wallace [2014] QCAT 461; cited |
APPEARANCES:
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
Arthur and Eileen Lowe (the applicants) are lot owners of property at Hope Island on the Gold Coast. BGC Technical Ltd (the respondent) owns an adjoining property.
Both properties owned by the applicants and the respondent are managed by the Body Corporate for Rosebank GTP 3033 (the Body Corporate) and are subject to the Building Units and Group Titles Act 1980 (Qld) (the ‘BUGT Act’).[1]
[1]By operation of the transitional provisions in the Body Corporate and Community Management Act 1997 (Qld), see ss 324 and 326 and the Sanctuary Cove Resort Act 1985 (Qld).
There is a boundary fence between the applicants…
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- AGLC
- Lowe v BGC Technical [2016] QCATA 124
- Case
- [2016] QCATA 124
- Decision Date
CaseChat Overview and Summary
The court examined whether the Tribunal erred in its decision to dismiss the applicants' application for lack of standing. The Tribunal had concluded that the applicants were not 'neighbours' because the land affected by the trees was scheme land under the Building Units and Group Titles Act 1980 (Qld). The court held that the Tribunal had indeed erred in its interpretation of the term 'neighbour'. The court found that the applicants, as lot owners, were indeed 'neighbours' within the meaning of section 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The court further held that the Tribunal's findings were legally incorrect and that the applicants' application should be returned to the Tribunal for reconsideration in light of these findings.
The court set aside the Tribunal's decision and allowed the appeal on grounds one and two. The court refused the appeal on ground three. The decision of the Tribunal made on 15 October 2015 was set aside, and the applicants' application for a tree dispute filed on 24 December 2014 was returned to the Tribunal for consideration according to law and the findings disclosed in these reasons. This decision clarified the jurisdictional scope of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and its interaction with the Building Units and Group Titles Act 1980 (Qld).
Orders
Orders of the court
1. Appeal on ground three refused.
2. Appeal on grounds one and two allowed.
3. The decision of the Tribunal made on 15 October 2015 is set aside.
4. The applicants’ application for a tree dispute filed on 24 December 2014 is returned to the Tribunal for consideration according to law and the findings disclosed in these reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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