The dispute in Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2 involved a simple question: who is a neighbour in a group titles plan? In answering that question, the Tribunal applied a strict interpretation of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to conclude that an individual lot owner in a group titles plan or a community titles scheme is not a ‘neighbour’ and therefore has no standing to commence proceedings. The decision in Donaldson can be contrasted with the decision delivered in Lowe v BGC Technical [2016] QCATA 124, which held that a registered owner falls within the description of a neighbour and, accordingly, has standing under the Act.
The facts
The facts provided in this matter are relatively sparse. The applicant owned a lot in a group titles plan and claimed roots from a fig tree situated on common property had caused considerable damage to her lot. The applicant sought orders that the respondent body corporate compensate her for the damage. The respondent body corporate filed a response resisting the order, and requested that the application be dismissed.
The Tribunal's decision
Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act) the Tribunal has the power to make orders it considers appropriate about a tree or trees affecting neighbour’s land upon application being made by ‘the neighbour’. Section 49 provides each of the following entities is a ‘neighbour’ in relation to a particular tree—
(a) if land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994
- a registered owner of the lot under that Act; and
- an occupier of the land;
(b) if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997—the body corporate for the community titles scheme; and
(c) if land affected by the tree is a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980—the body corporate for the plan.
In dismissing the application, The Tribunal cited Brown & Anor v Wallace [2014] QCAT 461 which found that an individual lot owner in group titles plan is neither a registered owner or occupier of land under the Land Title Act 1994, nor a body corporate under the Building Units and Group Titles Act 1980. It followed that the Tribunal considered the applicant was not a ‘neighbour’ as defined by s 49 of the ND Act and had no standing to commence proceedings against the respondant body corporate.
Comment
The Tribunal's decision demonstrates a strict interpretation of the ND Act. This decision can be contrasted with Lowe v BGC Technical [2016] QCATA 124, which allowed an appeal on the basis that a registered owner in a group titles plan or a community titles scheme falls within the description of a neighbour and has standing under the Act. In reaching this view, the Appeals Tribunal considered a number of factors. At the outset, the language of s 49, which reads ‘each of the following entities is a neighbour’, suggests that more than one entity can be a ‘neighbour’. It does not, for example, use words like ‘any one of the following’ which would lead to the conclusion that there can only be one neighbour.
The Appeals Tribunal then considered whether there would be a serious injustice to the registered owner of land or a lot if they were denied standing. An interpretation of s 49 which excludes the registered owner was considered to be inconsistent with the language and purpose of the ND Act viewed as a whole. The Appeals Tribunal held that the objects of the ND Act, set out under s 3, are to provide rules so that neighbours are generally able to resolve issues about fences or trees without a dispute arising, and to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours. The aim of s 49 is clearly to ensure that any person affected by a tree has the right to apply.
In light of the recent decision in Donaldson, lot owners in a group titles plan or a community titles scheme would be wise to cite Lowe and the language and purpose of s 49 when making an application.