Surfers Garden Villas [2004] QBCCMCmr 299 (10 June 2004)

Number of Scheme:	22204
Name of Scheme:	Surfers Garden Villas
Address of Scheme:	18 Elliott Street BUNDALL QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate

I hereby order, pursuant to an application by the body corporate (applicant) against Kerrie McNeice, the owner of lot 3 (respondent), that the respondent is to reimburse the body corporate for the cost of removal and lopping of trees from her lot. The respondent is to reimburse the body corporate the sum of $1,382.50. Payment is to be made within two months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0699-2003

"Surfers Garden Villas" CTS 22204

Surfers Garden Villas Community Titles Scheme (Surfers Garden) is a 16 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This application is by the body corporate (applicant) seeking orders against the owner of lot 3, Kerrie McNeice (respondent). The body corporate is seeking reimbursement of $1,503.50 expended by the body corporate on removal and pruning of trees on the applicant’s lot that the body corporate alleges were dangerous.

The body corporate claims that the respondent failed to properly maintain the trees on her lot. It is alleged that, despite a number of requests from the body corporate, the respondent failed to cut or prune the trees on her lot to minimise the risk of damage or injury. The body corporate therefore engaged Coastal Tree Felling to remove two of the trees and prune the third tree. The body corporate is seeking to recover its costs of doing this.

The body corporate has provided copies of a number of items of correspondence sent by the body corporate to the respondent, including:

The respondent did not make any written response to the correspondence sent to her regarding the trees. The respondent claims that she telephoned a staff member of the body corporate manager a few times but neither this staff member or the respondent could provide me with details of any relevant conversation.

On 21 August 2003, Coastal Tree Felling attended and removed two of the trees and pruned the third tree according to instructions from the body corporate. Despite the requests and notification from the body corporate, the respondent had not agreed to perform the removal and pruning herself, or provided any plausible evidence to the body corporate that the removal or pruning was unnecessary.

The body corporate’s main submissions were that the respondent had failed to properly maintain her lot, the body corporate was required to perform this maintenance on her behalf, and the respondent should therefore reimburse the body corporate for the costs of this maintenance.

The respondents’ main submissions were to the effect that:

The Act places an obligation on the respondent to maintain her lot in good condition (Standard Module, 120). The three paperbark trees were on the respondent’s lot.

The respondent states that, prior to the removal of two of the paperbark trees, the lot was in a clean and orderly condition. Further, after the trees were removed there was no evidence of any hollow parts of the trees. She therefore asserts that she had not been derelict in her duty to maintain her lot in good condition.

However, the body corporate states that a branch weighing five tons had previously fallen from one of the trees and that the body corporate was concerned about the trees causing injury or damage. There is no evidence before me to verify the weight of the branch or to verify that the falling branch caused any injury or damage. However, I do accept that a large branch had previously fallen from one of the trees and that, in the absence of evidence to the contrary, an ordinary objective person would have a reasonable apprehension that a branch may fall on a future occasion and may cause injury or damage.

There can be no question that the requirement to maintain the trees in good condition includes a requirement to ensure the trees are kept in a reasonably safe condition and requires an owner to take reasonable steps to minimise the risk of injury or damage. However, the respondent merely asserts that the trees were safe. At no stage did the respondent engage someone to inspect the trees and report on the condition of the trees. By doing nothing, the respondent lost the opportunity to provide the body corporate with evidence that the trees were properly maintained and in a reasonably safe condition.

The correspondence from the body corporate indicates that it had notified the respondent of an apprehension of damage being caused by the trees as far back as 21 November 2002. At that time the body corporate stated it was concerned about the risk of damage in case of storms and requested the respondent cut or prune the trees. In April 2003, the body corporate again wrote to the respondent about the trees and requested she provide her intentions regarding reducing the risk of damage from the trees. In June 2003, the body corporate formed the opinion that the trees should be removed but, after discussions with a council inspector, it was determined that only two of the trees should be removed and the third tree should be pruned to remove deadwood and have the canopy thinned by 30% in order to alleviate potential storm damage.

On 9 July 2003 the body corporate wrote to the respondent saying it would engage a contractor to remove two of the trees and prune the remaining tree if the respondent did not arrange to have the work done herself within 14 days. On 22 July 2003 the committee resolved to carry out the removal and pruning of trees on the respondent’s lot at the owner’s expense if the respondent did not comply with the request of 9 July 2003. On 6 August 2003 the body corporate sent a letter to the respondent stating that Coastal Tree Felling had been engaged to carry out the works on 21 August 2003. This letter gave the respondent her final opportunity to address the maintenance concerns and constituted the notice necessary for the body corporate to authorise Coastal Tree Felling to enter the respondent’s lot (Act, 163). On 21 August 2003 Coastal Tree Felling removed two of the trees and pruned the remaining tree.

It appears that the respondent simply ignored all this correspondence. The body corporate therefore decided to take on responsibility to alleviate the risk of damage or injury from possible future occasions when branches may fall from the trees. One concern is that the body corporate may have exceeded the bounds of what was reasonable maintenance to alleviate the risk of damage or injury. At first glance, it seems excessive to entirely remove two of the trees. However, a council inspector had viewed the trees and recorded that one of these trees had major structural damage with internal decay and the other tree constituted a root hazard as well as being a poor specimen with a creeper vine smothering the canopy. Given this evidence, the body corporate’s actions in having these two trees removed are within the bounds of reasonableness. The applicant has submitted that this evidence is tainted and the council would approve the removal of almost any tree. However, I consider the results of the council inspector’s visual inspection provide an independent view of the state of the trees prior to removal. This view is of value, even if the council application or council determination is subsequently shown to be invalid.

In summary, I am satisfied that a large branch falling from one of the trees created a reasonable apprehension that branches may fall from the trees and that the works performed were reasonable for the purposes of minimising the risk of injury or damage. The respondent obviously has a different point of view. However, the respondent had numerous opportunities to respond to the body corporate’s concern by providing evidence that the trees were reasonably safe or by undertaking work herself to make the trees reasonably safe. By doing nothing, the respondent lost her opportunity to control the maintenance of the trees and the body corporate was required to step in.

The respondent is required to maintain her lot in good condition (Standard Module, 120(2)). I am satisfied that she failed to do this. I am also satisfied that the work performed by the body corporate was reasonable and the body corporate is entitled to recover the reasonable costs of this work as a debt (Standard Module 121(1)(a), 121(2)).

The respondent has submitted that the application to council for permission to remove the trees was illegal, tainted and did not give the body corporate any authority to remove the trees.

If the respondent is correct in her submissions, the body corporate’s actions may attract some liability for contravention of council regulations. However, the validity or otherwise of the council approval to remove the trees does not affect my determination above.

By letter dated 20 June 2003, the body corporate notified the respondent that it intended to remove the paperbark trees. Council permission was required in order to lawfully remove the trees and a committee member made this application. The council in fact refused permission to remove all the trees stating that one of the trees was a "healthy, structurally sound, significant tree" and that certain pruning and maintenance works would "alleviate potential storm damage".

The body corporate did not rely on the council approval as its basis for pruning and removing the trees and recovering the costs from the respondent. Sections 120 and 121 of the Standard Module gave the body corporate the power to do this. If council regulations have been contravened then that is a separate matter outside the jurisdiction of this office, and a matter that does not affect the right of the body corporate to recover the maintenance costs under section 121 of the Standard Module.

I am satisfied that the extent of work carried out by the body corporate was reasonable and there is no evidence that the amount charged by Coastal Tree Felling was anything other than the normal commercial rate for the work done.

The body corporate initially claimed $1,503.50 from the respondent, being the amount of the invoice from Coastal Tree Felling. However, this invoice also included an amount of $121 for the pruning of a wattle tree on lot 2. Therefore, the respondent is only liable to reimburse the body corporate the amount of $1,382.50.

I note that the body corporate has not made any application against the owner of lot 2 for the reimbursement of $121 for the pruning of the wattle tree located on that lot. While I have not been provided with details of the circumstances surrounding the performance of this work, I expect that the owner of lot 2 has either already reimbursed the body corporate for this work or has agreed to do so in the near future.

In summary, the body corporate arranged for the removal and pruning of trees on the respondent’s lot after providing a number of requests and opportunities to the respondent to perform the work herself. The respondent appears to have thought that she could simply refuse to respond to the body corporate’s requests and avoid any responsibility for the maintenance of the trees. However, as a large branch had previously fallen from one of the trees there was a reasonable apprehension that further branches could fall and cause injury or damage. By failing to make any adequate response the respondent lost the opportunity to maintain the trees in good condition herself and lost the opportunity to provide evidence that the trees were being maintained in good condition.

In those circumstances, the body corporate was empowered by the Standard Module to carry out work to maintain the lot in good condition and recover the reasonable costs from the lot owner. For these reasons, I make the order above.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Surfers Garden Villas [2004] QBCCMCmr 299 (10 June 2004)