Taylor v Williams

[2018] QCAT 209

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Taylor & Anor v Williams & Anor [2018] QCAT 209

PARTIES:

ELIZABETH ANNE TAYLOR
(first applicant)
JUSTIN WILLIAM CLARKE
(second applicant)

v

BERNADETTE ANN WILLIAMS
(first respondent)
GRAEME WALTER CAMPION

(second respondent)

APPLICATION NO/S:

NDR026-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 June, 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member A Fitzpatrick

ORDERS:

The application for a tree dispute filed 1 February 2018 is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree located on common property - Small Scheme Module Body Corporate & Community Management Act 1997 – effect of exclusive use by-law – whether applicants are a “neighbour” – jurisdiction of QCAT

Body Corporate and Community Management Act 1997 (Qld) s 10(2), s 170(1)(a)

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 49

Lanyon v Lucas [2014] QCAT 180

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. The applicants filed an application for a tree dispute in the Southport Magistrates Court Registry on 1 February 2018.

2. Following a Directions Hearing the parties were directed on 3 May 2018 to file and serve submissions as to whether Ms Taylor and Mr Clarke had standing to bring the application. In particular, addressing how they meet the definition of a neighbour under s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2009 (Qld) (the Act); and how the respondents Ms Williams and Mr Campion meet the definition of a tree keeper under s 48 of the Act.

3. Before proceeding with the matter, it is necessary for this Tribunal to determine that it has jurisdiction to deal with the dispute between the parties.

4. I have referred to the submissions of the parties and to the original application and response.

5. The parties are each owners of a part of a duplex at 151 Bayview Street, Runaway Bay.  Ms Williams and Mr Campion are the owners of Lot 1 and Ms Taylor and Mr Clarke are the owners of Lot 2.  The property is subject to the Small Scheme Module of the Body Corporate & Community Management Act 1991 (Qld) (BCCM Act).  The survey plans attached to Ms Williams and Mr Campions’ response reveal that the lots occupy part of the land and are surrounded to the boundary by common property.  Overlaid on the common property are areas of exclusive use at the front and rear of each lot.

6. A mature Bismarckia Palm is growing on the common property in the exclusive use area of Lot 1.  The Palm is alleged to be pushing against a fence running between the front of the two lots causing damage to the fence.

7. Only a neighbour may make an application under the Act.[1] The land affected by the tree is scheme land under the BCCM Act. Accordingly, the neighbour is the body corporate. I reject the submission of the applicants that because the tree affects land the subject of an exclusive use by-law in their favour that they are therefore a neighbour under the Act. Similarly, the fact the tree is growing on land the subject of an exclusive use by-law in favour of Ms Williams and Mr Campion does not make them the tree-keeper under the Act.

   [1]Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) s 49.

8. Scheme land consists of two or more lots and common property not included in the lot.[2] 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.[3]  The exclusive use by-law does not affect the status of the land as common property.[4]

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

   [3] Ibid s 170(1)(a).

   [4]Lanyon v Lucas [2014] QCAT 180.

9. In these circumstances the dispute between the parties may be determined under the dispute resolution provisions of the BCCM Act.

10. I order that the application be dismissed for want of jurisdiction.