Wimbledon [2011] QBCCMCmr 469 (24 October 2011)

Last Updated: 2 December 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Wimbledon [2011] QBCCMCmr 469
PARTIES:	Ms Glenese Palmer (applicant) The Body Corporate (respondent) All owners (affected persons)
SCHEME:	Wimbledon CTS 22210
JURISDICTION:	Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA), applying the BCCMA and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0967-2011
DECISION DATE:	24 October 2011
DECISION OF:	D Toohey, Adjudicator
CATCHWORDS:	APPLICATION FOR INTERIM ORDERS – whether proposed tree removal unreasonable. BCCMA, s100(5).

INTERIM ORDERS MADE:

I hereby order that, pending any further order, the body corporate must not have any trees removed as proposed in its circular to owners dated 14 October 2011 or otherwise. However, this order does not apply to any trees for which an arborist has provided a written recommendation for removal because the tree is dangerous. This is an interim order and will remain in effect for a period of not longer than two months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

REASONS FOR DECISION
Introduction

[1] Ms Palmer objects to the body corporate removing ten trees from common property as proposed in a letter to owners dated 14 October 2011.
[2] Ms Palmer asks for an interim order as a matter of extreme urgency as she believes the felling of these trees to be imminent. She says the proposed felling is expensive, unnecessary, and will reduce property values. Ms Palmer also says she would suffer more than most owners by a dramatic loss of privacy, exposure to the western sun. This is because five of the ten trees are adjacent to her lot.

Analysis

When should an interim order be made?

[3] An interim order is normally only justified when:

1. The application raises a serious question that will need to be determined; and
2. The inconvenience likely to result from the interim order is outweighed by the potential detriment if the order is not granted.

Serious question

[4] I would prefer to have given the body corporate an opportunity to respond to Ms Palmer’s application before making any interim order.
[5] However, Ms Palmer has raised questions about whether the body corporate has acted reasonably and followed proper procedures in proposing to remove the trees. It is also obvious from the diagram sent by the body corporate to owners that Ms Palmer will be more severely affected than most owners by removal of the trees because five of the trees are next to her lot. If the body corporate was to proceed with removing these trees there would be questions about whether the removal was reasonable and whether the committee failed to take into account the views of owners most affected by the removal (BCCMA, 100(5)).

Inconvenience

[6] If the body corporate does proceed to remove the trees then not much can be done to replace them. On the other hand, if any of the trees need to be removed because they are dangerous then I would not wish to make an order preventing the tree removal.
[7] In the circumstances, I am prepared to order the body corporate not remove the trees for a short period of two months. However, this order will not apply to any trees for which an arborist has provided a written recommendation for removal because the tree is dangerous.

Conclusion

[8] For these reasons, I will make the interim order above.
[9] I have made this order in urgent circumstances without giving the committee an opportunity to respond to Ms Palmer’s claim. The committee (and all owners) will be given an opportunity to respond prior to any final order. Also, if the committee wish to provide me with relevant information and seek an amendment of this interim order then I am willing to consider that request.