Heritage Village [2003] QBCCMCmr 306 (24 December 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by: Ross Stuart JACKSON, as a co-owner of Lot 5; John Allen and Charmaine McBREARTY, the owner and an occupier of Lot 10 respectively; Adrian CHURCH, occupier of Lot 12; Ayumi CHANDLER, the owner of Lot 13; and others.

I hereby order that the body corporate must not implement or otherwise act upon its decision to lop or remove trees from the common property, pending determination of the final order to this application.

I further order that as soon as possible, but no later than four (4) weeks from the date of this order, the body corporate committee must engage the services of an appropriately qualified arborist, who must be independent of both the committee and the applicants, to inspect those trees proposed by the committee to be either lopped or removed and give a written opinion on what treatment was reasonably necessary in respect of those trees so as to comply with the relevant regulations of the Cairns City Council and make the trees reasonably safe for persons using the areas of common property beneath the trees.

I further order that if a Cairns City Council officer with the appropriate knowledge and the authority to give a determination on behalf of the Council as to what treatment each of the relevant trees must receive to comply with the Council regulations and make the trees reasonably safe for persons using the areas of common property beneath the trees, then any such determination in writing obtained may be relied on by the committee as satisfying the order immediately above to engage an arborist.

I further order that the body corporate secretary must forward a copy of this order and the accompanying reasons to all owners with the Notice of Application and Invitation to make a Submission.

I further order that this interim order has effect for a period of three (3) months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0814-2003

"Heritage Village" CTS 18665

The applicants: Ross Jackson of Lot 5; John and Charmaine McBrearty of Lot 10; Adrian Church of Lot 12; Ayumi Chandler of Lot 13; and others (see later), have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

The applicants have also made application for the following interim order of an adjudicator –

JURISDICTION:
This is a dispute between a number of owners and occupiers (the applicants), and the body corporate (the respondent), concerning the removal and lopping of trees sited on the common property. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act), and in my view tenant occupiers have a sufficient interest in the matter in dispute to be co-applicants.

There are the names of two further persons shown as co-applicants, Colleen Wheate and Imelda Jackson, however there is no discernable signatures for them on the application form, and while I assume the latter to be the other co-owner of Lot 5, there is nothing to show Wheate’s residential status and therefore her standing as an applicant under section 227 of the Act.

Section 279 of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284 of the Act).

APPLICATION:
Under section 247 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate in this instance as the lopping and/or removal of certain common property trees has been decided on by the committee and a service provider engaged to carry out the work. Even so, there was telephone contact with a committee member (see later) who confirmed that tree lopping and removal was scheduled to take place on and from 2 January 2004.

In order to determine whether the urgency of impending tree removal as described by the applicants was in fact true, on 23 December 2003 I conducted a teleconference with one of the applicants, Adrian Church, and a committee member Alan Griffiths for the body corporate (Bastick being unavailable). The nature of the application was made known to Griffiths, being simply that the applicants want the Cairns City Council guidelines to be followed. Griffiths said he was aware of the email guidelines dated 15 December 2003 by John Van Grieken (Cairns City Council) which is the document being relied on by the applicants and attached to their application. Griffiths confirmed that tree lopping and removal was to commence on 2 January 2004 and would take place over some weeks.

The main concern of the applicants is that large trees providing shade to residents for play and general recreation purposes will be removed rather than lopped and replacement trees planted. The applicants also state they are concerned that the body corporate committee has not consulted owners in the matter, and they have spoken to a number of owners who agree with their view. They allege that the committee, particularly the chairperson David Bastick, intend to ignore certain of the guidelines given by Van Grieken and have engaged the tree lopper despite considerable opposition from owners and residents.

If the work was to be allowed to proceed then the ability to resolve the dispute as to which trees should be lopped or removed, would be either severely impaired or lost completely. Accordingly, a situation of urgency exists for consideration of an interim order.

DETERMINATION:
"Heritage Village" was registered as a group titles plan (now termed a standard format plan) on 17 April 1989 and comprises 40 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997.

In a situation such as this, where the efficacy of an application would be lost if no interim restraint is imposed, an adjudicator must necessarily rely to a large extent on the information provided by the applicant. The applicants merely ask that the Council regulations be complied with in the lopping and removal of trees and that, of course, is a duty of the committee in acting on behalf of the body corporate.

It seems to me that in the circumstances, the most appropriate order at this time so the matter can proceed promptly is for both parties to be satisfied as to the Council regulations that must be followed in respect of the trees in "Heritage Village". That can be best achieved by the body corporate engaging a qualified arborist, independent of the committee and the applicants, so that an impartial report (written) may be obtained as to how each tree proposed to be either lopped or removed, may be dealt with so as to comply with the relevant Council regulations. Alternatively, the committee may be able to have a Council officer, perhaps Van Grieken, who is able to provide that same opinion concerning the relevant trees, however I am uncertain as to whether the Council offers such a service and would be prepared to carry out that task in this situation.

I am satisfied that an interim order is necessary because of the urgency of the circumstances to prevent the committee pursuing the tree lopping and removal proposal. The application will be finally determined after receipt of a response from the body corporate committee, including a copy of the independent aborist’s report or relevant Council officer’s report as the case may be, and the response of owners.

While I have allowed the interim order to apply for the following three months, I am conscious that, as Griffith stated, the trees should be attended to before the rainy season and made safe.

Section 279(2) of the Act provides –

In my order I have provided that the interim order has effect for a period of three months. All parties should be aware of this section and its effect on the interim order. In particular, it is the responsibility of the applicant to request an extension to the interim order period should it become necessary as this office will not automatically renew an interim order.2n

Number of Scheme:	18665
Name of Scheme:	Heritage Village
Address of Scheme:	404 McCoombe Street MOOROOBOOL QLD 4870

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Heritage Village [2003] QBCCMCmr 306 (24 December 2003)