Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - where the affected person is accused of damaging a tree on common property in contravention of the by-laws but the body corporate resolved not to issue her a by-law contravention notice; whether the body corporate must issue a contravention notice, replace the tree, and recover the cost from the affected person.

Act, ss 94, 101(2), 182(1)-(2), 183(1)-(2); Standard Module, s 212(1).

• [1] Ms O'Reilly says Ms Dempsey damaged a grevillea tree on common property alongside her lot and it subsequently died, compromising the privacy and amenity of her lot. She notified the body corporate committee but it elected not to issue Ms Dempsey with a by-law contravention notice. She now seeks orders against the body corporate in the following terms:

- Issue lot owner of unit 20 with form 10 for violation of the complex by-laws, which state "4. The occupier of a lot must not, without the body corporates written approval: a) damage a lawn, garden, tree, shrub, plant or flower on the common property."

- Remove what remains of the existing tree stump and replace with a new tree of the same or similar variety of flowering maturity, large enough to provide privacy and enjoyment to lot 25, as well as to maintain the appearance of the common property of the complex. If any of the agave plants in the space have to be removed during these works, they are replanted on completion of the works.

- Forward the cost of removal and replanting onto the owner of lot 20.

• [2] The body corporate engaged a contractor to remove 8 harpullia trees and trim other trees away from the units. Ms O'Reilly says the work was not to include the grevillea alongside her lot, though Ms Dempsey disputes that and correctly points out that the contractor's quotation did not specify the trees that were to be trimmed away from the units. Ms O'Reilly's photographs show the grevillea was touching the side of the building before it was cut back.
• [3] The work was carried out on 25 January 2025. Ms O'Reilly advised Platinum North's body corporate manager at the time that the contractor pruned the grevillea.[1] She says the contractor subsequently:

...sighted Katherine Dempsey causing significant damage to the grevillea tree by breaking the trunk and branches, and stripping leaves and bark without appropriate tools. The contractor reported this to an occupant of lot 25 on site who witnessed the damage after the event. The contractor offered to cut back the tree to remove the damage. This offer was accepted to keep the common property in reasonable appearance.

• [4] Ms Dempsey denies this version of events, claiming she:

...is slightly built...aged 80...frail and in poor health...[and] simply incapable of barehandedly breaking down the trunk and branches of a well grown tree...

• [5] She said she only held a branch to prevent it from falling on a parked car while the contractor cut it with a chainsaw.
• [6] However, Ms O'Reilly submitted an email sent to her by the body corporate manager on 28 January 2025 that said:

I had received a call from the Katherine this morning advising she was the resident who cut down the branches as it was still overhanging and as she didn't have any gardening tools on her that's why she broke the branches...

• [7] However it occurred, Ms O'Reilly's photographs show that after the tree had been further cut back by the contractor nothing remained but a short, bare, forked trunk, devoid of foliage. Ms O'Reilly says it has not sprouted since, the trunk has split, fungus is growing on it, and it is presumed dead.
• [8] Ms O'Reilly sent a Form 1 Notice to body corporate of a contravention of a body corporate by-law to the committee on 25 February 2025 claiming Ms Dempsey breached by-law 4.1:
  1. Damage to Lawns etc.

(1) The occupier of a lot must not, without the body corporate's written approval

(a) damage a lawn, garden, tree, shrub, plant or flower on the common property...

• [9] However, on 13 March the committee voted down a motion to issue Ms Dempsey with a continuing contravention notice, with only Ms O'Reilly voting in favour of it and another committee member voting against.

Must the body corporate issue Ms Dempsey with a Form 10?

• [10] Assuming that Ms Dempsey damaged the grevillea, is the body corporate obliged to issue her with a by-law contravention notice? One of the body corporate's functions is to enforce the by-laws.[2] It must act reasonably in the exercise of that function.[3]
• [11] If the body corporate reasonably believes an owner is contravening the by-laws and is likely to continue, it may issue a continuing contravention notice (Form 10) to the person requiring that they remedy the contravention.[4]
• [12] Alternatively, if the body corporate believes a person has contravened the by-laws and is likely to repeat the contravention, it may issue them with a future contravention notice.[5]
• [13] There is no indication that Ms Dempsey is continuing to damage the tree or is likely to damage it again in future. The damage is alleged to have occurred on a single occasion in January 2025. In these circumstances, neither contravention notice seems appropriate. No enforcement of the by-law seems strictly necessary as the by-law is no longer being infringed.

Must the body corporate replace the tree and recover the cost from Ms Dempsey?

• [14] I do not see that the body corporate is obliged to replace the grevillea. Ms O'Reilly does not claim that the body corporate damaged it.
• [15] I do not know the body corporate's views on the grevillea. I gather the committee is no longer functioning following some resignations. Only Ms Dempsey made a submission in response to the application. Given that the body corporate recently paid a contractor to trim trees back from the units, it may not wish to reinstate a tree of similar dimensions in the same location.
• [16] If the body corporate wishes to plant a replacement tree in that location, it may. It is responsible for the administration of the common property.[6] Ms O'Reilly might like to submit a motion to that effect to the committee or a general meeting. If the motion was to pass, the committee would be obliged to put it into effect.[7] But otherwise I do not see why the body corporate must reinstate a tree allegedly removed by an owner.
• [17] I also do not see the body corporate's power to recover the cost of a new tree from Ms Dempsey. The body corporate may carry out work required of an owner and recover it from the owner as a debt where the owner is obliged to perform the work under:

(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or

(b) a notice given under another Act or a Commonwealth Act; or

(c) the community management statement, including the by-laws; or

(d) an adjudicator's order; or

(e) the order of a court or QCAT.[8]

• [18] But none of those criteria apply here. The by-laws require that owners do not damage trees on the common property without body corporate approval, but do not require owners to replace them if damaged. An adjudicator might order Ms Dempsey to replace the tree under section 281 of the Act if the body corporate applied for such an order, but that has not occurred. I cannot order Ms Dempsey to replace it in response to the present application for several reasons:
  1. an order can only be made under section 281 where an applicant's property was damaged by a contravention, but the tree is not Ms O'Reilly's property
  2. Ms Dempsey is not the respondent, and
  3. no such order has been sought.

• [19] Some important factual questions would need to be resolved before orders could be made in Ms O'Reilly's favour. Ms Dempsey denies damaging the grevillea. Even if she did damage it, there is no evidence of the condition of the grevillea after it was first pruned by the contractor, and again after Ms Dempsey damaged it. There is only a photograph of the tree before any pruning occurred, and again after the contractor allegedly cut it back a second time to remove the damage done by Ms Dempsey. That makes it difficult to gauge the damage done by Ms Dempsey or conclude that the tree died because of her actions.
• [20] Those questions might be resolved by making further inquiries, particularly of the body corporate manager who claimed in an email that Ms Dempsey admitted to breaking branches with her hands, and the contractor who either saw Ms Dempsey breaking the branches or asked her to hold a branch while it was cut with a chainsaw.
• [21] But I have not made those inquiries for the reasons set out above. Namely, even if Ms Dempsey did damage the tree, I am not satisfied that the body corporate must issue her with a continuing contravention notice, replace the tree itself, nor that it could recover the cost of replacing the tree from Ms Dempsey. Consequently, the application is dismissed.

[1] Email to Stansure Strata, 25 January 2025.