Mirana Investments Pty Ltd v Coupe
[2012] QCATA 187
•27 September 2012
| CITATION: | Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 |
| PARTIES: | Mirana Investments Pty Ltd (First Applicant/Appellant) Jamesburg Pty Ltd (Second Applicant/Appellant) Mr Shane Alexander (Third Applicant/Appellant) Crestwater Pty Ltd (Fourth Applicant/Appellant) |
| v | |
| Paul Michael Coupe (Respondent) |
| APPLICATION NUMBER: | APL041-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Member |
| DELIVERED ON: | 27 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Appeal is allowed.1. The Adjudicator's decision in the matter of the Stradbroke Plaza, Application 0588-2011 dated 12 December 2011 is set aside.2. In lieu thereof it is ordered that:3. the Respondent Mr Coupe forthwith at his own cost cause the fig tree growing in his unit to be removed; and,(a) in the event that the tree has not been removed by 31 October 2012, the Body Corporate may enter lot 9 for the purposes of removing the tree and may recover the reasonable cost of doing so from the respondent.(b) |
| CATCHWORDS: | REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BY-LAWS – GENERALLY –– where lot owner had large fig tree in unit garden – whether a nuisance or hazard –whether further evidence receivable – whether injunction for removal of tree appropriate Body Corporate and Community Management Act 1997, ss 167, 289 Aldrich v Ross [2001] 2 Qd R 235 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (“QCAT Act”).
REASONS FOR DECISION
This is an appeal against an Adjudicator’s decision in a dispute involving a lot owner in a community titles scheme, other lot owners and the body corporate.
The relevant building is The Strand Plaza, an eight storey building containing 13 lots and regulated by the Body Corporate and Community Management Act 1997 (“BCCM Act”) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (“the Standard Module”). It overlooks the Southport Broadwater. The front units are built back from those below so that each unit has a large exposed balcony. Most of these contain garden beds.
The respondent to this appeal is Mr Coupe, the owner of unit number 9 on the third level. The appellants (Mirana Investments Pty Ltd, Jamesburg Pty Ltd, Mr Alexander and Crestwater Pty Ltd) are the owners of other units in the building.
The dispute arises from the fact that some years ago Mr Coupe planted in the front balcony garden of his unit a tree that has been referred to in evidence as Moreton Bay Fig. The tree has flourished and continues to grow, despite efforts to contain it.
There is an oddity in the evidence in that the only arboreal expert described the tree as a ficus benjamina. On my understanding that is an exotic (Asian) tree, popularly known as a weeping fig. The Moreton Bay fig bears the scientific name ficus macrophylla[1]. No reference was made in the evidence or by the parties during submissions as to this apparent discrepancy. In the end, nothing will turn on it, because both varieties have a natural propensity to grow into huge trees. There is certainly no doubt about the existence of a large fig tree in Mr Coupe’s garden, about which other unit-owners are extremely concerned, but it seems inappropriate to refer to it as a Moreton Bay fig. It will be best to refer to it simply as "the fig tree".
[1]See Macquarie Dictionary: “a massive umbrageous tree, ficus macrophylla, native to the east coast of Australia, which bears small, purplish, non-edible fruit”.
Mr Coupe has endeavoured to contain the fig tree by means of a heavy water-proof lining around the roots and by pruning from time to time. However other residents and the body corporate have become concerned by the extent of its growth and its propensity to grow even larger. There is concern about stress placed upon the building by the weight of the tree, its potential effect on insurance coverage, the ongoing need for elimination of seedlings which emerge in other parts of the building, and other matters.
The body corporate takes the view that the presence of a very large tree of this kind on level 3 is inconsistent with the building’s aesthetics, and that it interrupts the view of the owner of lot 12 on level 4. All owners other than Mr Coupe favour the removal of the tree.
Some years ago the body corporate raised its concerns with Mr Coupe who advised that the tree and its roots would be contained within the garden bed by various means. After a process of conciliation and agreement was reached in which Mr Coupe undertook various forms of containment. Different views have been expressed as to whether these were properly carried out, and further concerns arose about the potential for the tree’s roots to invade the drainage system of the building, and about other matters such as seeds from the tree continuing to find their way into crevices throughout each level of the building.
The dispute was not able to be resolved, and eventually, in July 2011, the appellants (along with the body corporate) brought an application seeking an order that the tree be cut down and removed, along with poisoning of all new saplings, and removal of the tree roots from the building, and drainage pipe work, to be performed at the cost of the proprietor of lot 9. In the event that Mr Coupe failed to remove the tree, the body corporate sought an order permitting it to enter lot 9 for the purposes of removing the tree and recovering the reasonable costs of doing so from the owner of lot 9.
The dispute was referred to an Adjudicator under Chapter 6 of the BCCM Act.
The Adjudicator did not grant the relief sought by the applicants, and instead ordered:
I hereby order that the owner of lot 9:
· Is to ensure that programmed pruning is undertaken to ensure that the tree grows no higher than the ceiling of lot 9 and remains stable;
· Is to ensure that garden bed drainage remains effective;
· Is to ensure that the roots of the tree are contained within a suitable root barrier; and
· Shall be responsible for the cost of removing any seedlings that grow as a result of the tree.
I further order that the owner of lot 9 is to obtain at his own expense annual reports addressed to the body corporate from a suitably qualified engineer, addressing the structural building issues associated with the weight, height and stability of the tree.”
Neither the appellants nor the respondent were satisfied with that order. The original appeal was initiated by an “application for leave to appeal or appeal” dated 23 January 2012, while Mr Coupe has brought what is in effect a cross appeal by means of a document described as “application to extend or shorten a time limit or for waiver of compliance with procedural requirement” dated 2 April 2012.
The order now sought by Mr Coupe is expressed as follows:
I seek to vary the Adjudicator’s orders so as the height of the tree can be allowed to grow to the height of the concrete balustrade which is slightly above lot 9 ceiling height by approximately 600mm. This is the lowest the canopy of the tree will extend without severely damaging and/or killing the crown of the tree. This will not prejudice the view of the owners of lot 12 above as the concrete balustrade is still below their view level and does not encroach on the title to their land. This height limit conforms with the orders as originally made by the first Adjudicator in 2009.
Mr Coupe’s affidavit in support of his application includes the following assertions:
3. Since the orders were made on 12 December 2011 I have complied strictly with the Adjudicator’s orders in relation to pruning and management of the tree except that I have allowed the height of the tree to extend approximately 600mm above to the concrete balustrade.
4. The reason I have had to allow this slight height extension is it has become apparent that the tree needs about 600mm more clearance up to the concrete balustrade above the ceiling as the current height proposed will completely remove the crown of the tree and thus kill it;
5. The crown of the tree currently sits just above the height of the ceiling and if it is to be cut at the height of the ceiling I believe the tree will quickly die;
6. To allow the height of the tree to extend another 600mm up to the concrete balustrade will not interfere with the view of lot 12 above and does not extend into their area of land title;
…
My only jurisdiction in this matter is appellate, and I interpret Mr Coupe’s application as a cross appeal. The relevant jurisdiction, both on the appeal and cross-appeal is confined to appeal on a question of law.[2]
[2] Body Corporate and Community Management Act 1997, s 289(2).
The appellant’s complaint is that the order is wrong because it should have gone further and required removal of the tree; while the respondent complains that a fundamental condition of the order is inconsistent with the survival of the tree, and that it therefore ought to be removed.
It would seem that either the tree or the condition must go.
Summary of evidence
Eleven of the lots in the building are now used for commercial purposes. The only remaining residential units are lots 6 and 9.
The evidence does not show when the owner of lot 9 planted the fig tree in the front balcony garden bed of his unit. By 2008 there was sufficient alarm among other unit owners to lead to a dispute which was settled by means of a conciliation agreement. The occupier of unit 9 undertook to keep the tree trimmed to below the deck level of the unit above, to provide engineer’s reports and to remove seedlings. There is disputed evidence as to the degree to which these undertakings were complied with. The dispute arose between the parties over whether the tree should be removed.
By the time of the referral of the present dispute to the Adjudicator the height of the tree was approximately 3.5 metres; its crown spread was 6.5 metres and its diameter at breast height was approximately 450mm. This growth occurred despite what was described as extensive root pruning, crown reductions and aggressive pruning techniques such as those used to produce bonsais.
Conflicting views are contained in the evidence in engineering reports obtained by the parties. At this stage there is no evidence of actual structural damage having been caused to the building, but the evidence clearly shows a risk of such damage occurring if the weight and size of the tree continue to increase. Furthermore, there is uncontradicted evidence of existing the elections and bending moment which are outside the limits provided in Australian Standard Loading and Concrete Structure codes. An issue was raised as to whether the engineers whose reports suggested the risk to be clearly unacceptable had taken into account a stiffening beam that had been added since the original construction. However there is evidence to suggest that even with the stiffening beam present, continued growth of the tree will menace the structural integrity of the building.
There is uncontested evidence that trees of this type have invasive and aggressive root growth habits which often cause structural damage to nearby buildings. On the other hand, ongoing pruning of the root system would eventually encroach upon the structural root zone, with bad consequences for the tree, and as the tree matures and root pruning is undertaken, the crown of the tree would also need to be reduced to prevent a weight imbalance above ground level in relation to ground anchorage. A reasonable inference would seem to be that such a tree is unsuited to grow in such a site and environment.
Mr Coupe relied upon a report from Short Engineers which includes the following statement:
We assume that the slab was designed to support these planter boxes as they are shown on the original architectural drawings. We conclude that the tree does not diminish the structural adequacy of the building including the level 3 slab.
That report however does not directly address the problems associated with further growth.
The tree has been “maintained” for the past 10 years by a landscape design consultant, during which time he has performed only two root pruning exercises in which he cut back the roots to 75mm from garden bed walls and replaced all soils removed with fresh soils.
Other problems include the spread of seedlings and the risk of visual intrusion.
Preliminary question re further evidence
A question arises as to the nature of the present appeal and whether I should take into account further evidence provided by the appellants concerning Mr Coupe’s conduct since the order was made, and of the intrusion of the tree into the sightline of unit 12 (as to which photographs were provided).
I have not had the benefit of legal submissions on the question of reception of such evidence. The following is my provisional view.
The basic jurisdictional provision for this appeal is s 289 of the BCCM Act. The appellants are clearly enough “aggrieved persons” under s 289(1). Subsection 2 simply provides:
The aggrieved person may appeal to the Appeal Tribunal, but only on a question of law.
One then turns to further provisions in the QCAT Act, which relate to QCAT’s appellate jurisdiction. Plainly the relevant section for present purposes is s 146 of that Act. It provides:
146 Deciding appeal on question of law only
In deciding an appeal against a decision on a question of law only, the appeal tribunal may—(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
(i) with or without the hearing of additional evidence as directed by the appeal tribunal; and
(ii) with the other directions the appeal tribunal considers appropriate; or
(d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
The ensuing section, s 147, is concerned with appeals on questions of fact, or questions of mixed law and fact. With respect to such matters it is provided that “the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal”. The terms of s 147 are in marked contrast to those of s 146.
It seems to me that the present appeal is intended to be an appeal in the strict sense (an “appeal stricto sensu”), that is to say one in which the appeal court or tribunal considers only whether the judgment appealed from was correct when given. Although the boundaries of the recognised types of appeal are unclear, it has been found convenient to identify appeals as usually consisting of three main types – appeals stricto sensu, ordinary rehearings, and rehearings de novo. Section 146 of the QCAT Act focuses upon the original decision, and does not suggest that further evidence may be received. Indeed, the only reference to “additional evidence” is to the possibility that the matter can be returned to the original Tribunal in order to hear additional evidence.
By contrast, appeals by way of rehearing involve a new determination of the rights and liabilities of the parties rather than the mere correction of errors in the determination of the Court or Tribunal below. The mere use of the term “rehearing” in a statute will not necessarily identify the appeal as one of this kind, but it is at least some indication in that direction, and, reading s 147 as a whole, it seems clear that appeals under that section are fresh determinations. The position might of course change if there were provisions in the relevant enabling Act that suggested otherwise.[3]
[3] Compare Aldrich v Ross [2001] 2 Qd R 235, [18] to [41].
Applying this to the present matter, I am bound by s 146 of the QCAT Act to determine this case on the material that was before the Adjudicator, and to decide whether there was any error of law in that determination. I am therefore not entitled to take into account the evidence of events since the Adjudicator’s determination, such as additional growth of the tree and intrusion into the view of unit 12.
There is in any event some evidence (including photographs) in the original proceedings, which demonstrate the bulk of the tree, and the view from suite 5. Furthermore, I have no doubt that I am entitled to take into account Mr Coupe’s own allegations and concessions in the course of his conduct of this appeal, including his clear concession that he is unable or unwilling to comply with the condition imposed by the Adjudicator that the tree not exceed the ceiling level of his unit.
Discussion
The Adjudicator had jurisdiction to determine a “dispute” as defined in ss 227 and 228 of the BCCM Act. This includes “disputes about … contraventions of this Act” and disputes about the exercise of rights, powers or duties under the Act.[4] The dispute was described in the relevant papers essentially as whether the fig tree should be cut down and removed. The legal issues that arose in answering that question included whether the continuing presence of the tree was a nuisance in contravention of s 167 of the BCCM Act, and whether its continuing presence infringed by-law 25 of the Community Management Statement.
[4] Body Corporate and Community Management Act 1997, s 228.
It will be convenient at this point to set out those respective provisions.
Section 167 of the BCCM Act states:
167 Nuisances
The occupier of a lot included in a community titles scheme
must not use, or permit the use of, the lot or the common
property in a way that—(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
By-law 25 of the Community Management Statement provides:
Each owner shall be responsible for the maintenance of his lot and shall ensure that his lot is so kept and maintained as not to be offensive in appearance to other lot owners through the accumulation of excess rubbish or otherwise. Further all lots are to be so maintained as to prevent the excessive growth of glass and other vegetation making lots unsightly increasing fire risks or contributing to the spread of noxious weeds on other lots.
The resolution of defined disputes under Chapter 6 of the BCCM Act is the exclusive province of the dispute resolution provisions centred around s 229 of the Act. The present dispute is not a “complex dispute” as defined, and accordingly the relevant provision is s 229(3). That subsection provides:
(3) Subject to section 229A, the only remedy for a dispute that is not a complex dispute is—
(a) the resolution of the dispute by a dispute resolution process; or
(b) an order of the appeal tribunal on appeal from an adjudicator on a question of law.
The “dispute resolution process” in s 229(3) is relevantly a reference to the proceedings before the Adjudicator.
Adjudicators are granted the power to make orders which are the equivalent of injunctions. Their powers include[5]:
(1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about—
(a) a claimed or anticipated contravention of this Act or the community management statement; or
(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
(c) a claimed or anticipated contractual matter about—
(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii) the authorisation of a person as a letting agent for a community titles scheme.
[5] Body Corporate and Community Management Act 1997, s 276.
(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
…
In the context of appeals to QCAT against the decision of an Adjudicator, whenever the Appeal Tribunal sets aside the Adjudicator’s decision and substitutes its own, it is in effect standing in the shoes of the Adjudicator and exercising powers which the Adjudicator should have exercised. On such occasions it is not undertaking a fresh review or exercising its own original jurisdiction to grant injunctions or make declarations[6]; it is actually exercising its appellate jurisdiction under s 146 of that Act under which it may re-exercise the powers of the original decision maker.
[6] Queensland Civil and Administrative Tribunal Act2009, ss 59 and 60.
The principal submission of Mr Coupe is that no error of law has been articulated by the appellants. That submission is literally correct in that the nine grounds set out in the relevant appeal application all appear to raise complaints about findings of fact, and none articulate any question of law. However the overall question whether the Adjudicator erred in law in making this determination is before me, and ss 3 and 4 of the QCAT Act are designed to ensure that informality does not defeat a just causes. I therefore propose to look at the substance of the matter and decide whether there was any error of law in the Adjudicator’s decision.
There are, I think, at least three areas in which such errors are apparent.
Firstly, the fundamental question in the litigation was whether Mr Coupe was contravening s 167 of the BCCM Act. The question was whether he was using his lot in a way that causes a nuisance or hazard.
The Adjudicator refrained from grappling with this question, finding merely that “the circumstances indicate a possibility the continuing presence of the fig tree on level 3 could create a nuisance in contravention of section 167 of the Act”.[7] In my view the only finding that was properly open on the evidence was that a nuisance was already demonstrated. It is not necessary that one waits for a disaster to happen or for actual damage to occur before such a situation can be shown to be a nuisance. Reasonable apprehension of future serious injury is sufficient. A neighbour might be restrained from keeping a vicious dog before injury occurred, and a similar attitude prevails at law in cases of excavation and deprivation of support on adjoining property. The adjoining occupier does not need to wait until damage actually occurs before relief can be obtained.
[7] See [12] of Adjudicator’s reasons.
It is not necessary to pursue the question whether “nuisance” in s 167 is used in its technical legal sense or in its ordinary meaning, although its use in association with the non legal term “or hazard” makes the latter proposition quite arguable. The term “hazard” is a non-technical term, and it plainly relates to situations with a potential for harm which has not yet occurred. The first two entries in the Macquarie Dictionary for the meaning of that word are as follows:
1. A risk; exposure to danger or harm.
2. The cause of such a risk; a potential source of harm, injury, difficulty etc;
In my view, the Adjudicator’s failure to find that Mr Coupe’s actions infringed s 167 of the Act was an error of law.
Secondly, the Adjudicator did not properly dispose of the issue whether the continuing presence of the tree was an infringement of by-law 25[8], again finding only that “there is a possibility” that it was a contravention of that by-law.[9]
[8] See [39] above.
[9] See [14] of Adjudicator’s reasons.
Whilst this particular issue may not be as clear cut as the previous one, the evidence in my view justified a finding that it was offensive in appearance to some other lot owners and an infringement on the by-law. The failure to make such a finding however does not carry the importance of the previous error, as, standing alone, the order which the Adjudicator actually made could be regarded as an adequate response to it.
Thirdly, especially in the light of the history of preceding events, the terms of the injunction which the Adjudicator granted were in my view unworkable, and bound to produce unreasonable cost and trouble to enforce. The order contains vague requirements such as containment “within a suitable root barrier” reports from a “suitably qualified engineer”. It does not specify who is to remove seedlings or how the cost of doing so might be recovered. In truth, it was impossible to formulate an order that would satisfy all parties.
The fact that both the appellants and the respondent object to the order that has been made tends to reinforce its unworkability.
Ideally the recipient of an injunction should be placed in a position of knowing exactly what he or she is obliged to do.[10] While appreciating that this is not always possible, and that some laxity is tolerated[11], I consider that the order that was made was inappropriate, and manifests an error of law that may be corrected on appeal.
[10] Redland Bricks Ltd v Morris [1970] AC 652, 666.
[11]Meagher Gummow and Lehane Equity Doctrines and Remedies (3rd Ed) 619-620, para [21 100].
However the fundamental error was that on the evidence as a whole the only reasonable order that should have been made was that the tree was a hazard in this particular environment and should be removed. Its presence in a unit building of this nature has the character of a time-bomb. Orders attempting to guarantee that no part of it escapes into areas where it should not be, or to restrict its further growth and weight would be unworkable and unrealistic, difficult to enforce, and bound to be a source of ongoing strife and dispute. The appellants and the body corporate were entitled to an order for its removal, and the failure to grant it was an error of law. It is therefore correctable on appeal.
Order
The appeal will be allowed.
Under s 146 of the QCAT Act the decision of the Adjudicator in the matter of The Stradbroke Plaza (application 0588-2011) dated 12 December 2011 will be set aside.
In lieu thereof it will be ordered that:
(a) The respondent Mr Coupe forthwith at his own cost cause the fig tree growing in his unit to be removed; and
(b) In the event that it has not been removed by 31 October 2012 the body corporate may enter lot 9 for the purposes of removing the tree and may recover the reasonable costs of doing so from the respondent.
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