Susan and Greg Attewall, owner and occupiers of Lot 1 (affected persons)

Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(a) and 229(3)(a)

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

BY-LAWS - whether palm trees on an exclusive use area contravene a by-law - whether the body corporate has failed to enforce the by-law.

Act, ss 94, 182-186

• [1] This application is about two palm trees at the scheme and whether the body corporate has failed to enforce its by-laws in respect of the palm trees.
• [2] The palm trees are planted in a courtyard area of common property allocated for the exclusive use of Lot 1. The applicants say a tree on one side of their lot (palm tree 2) obstructs the view from their second balcony and another at the front of the scheme (palm tree 1) will soon obstruct the view from their main balcony.
• [3] The applicants raised the matter with the owner and occupiers of Lot 1. They then gave notice to the body corporate that they considered Lot 1 was breaching By-law 9. The committee decided the by-law had not been breached. Further communication and a conciliation have not resolved the dispute. The applicants say the body corporate has not upheld the by-laws.
• [4] The applicants seek orders that the palm trees be removed, and that the owners of Lot 1 not replant anything that will mature so as to obstruct the views of other owners.

• [5] The Esplanade Picnic Point community titles scheme 17173 (The Esplanade) is a 17-lot scheme at Maroochydore. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 102408.
• [6] The application seeks the following orders:

We request that palm tree 1 and palm tree 2 be removed from the garden of Unit 1 so that they do not obstruct the views of other lot owners and in the case of palm tree 1 do not encroach onto the living space of other lots owners as mandated by The Esplanade Picnic Point by-law 9) d - An owner must ensure that all trees, shrubs, creepers, and plants in or on any balcony,

rooftop terrace or garden area, pot or planter box contained in their Lot:

i. are kept and maintained in good health and condition;

ii. do not extend beyond the boundaries of their Lot; and

iii. do not obstruct the views from any other Lot or interfere with the use and enjoyment of any other Lot.).

We request that this occur in a timely manner (within 30 days) considering the length of time this issue has been ongoing for.

We request that Unit 1 owners do not replant any palms, trees, plants within their garden that will mature so as to obstruct the views of other lot owners.

• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] Prima facie, I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] The applicants initially lodged a conciliation application in October 2024 against the body corporate, wanting it to enforce the by-laws.[3] The parties reached a partial agreement.[4]
• [9] This application was subsequently lodged on 5 March 2025. The Commissioner invited submissions from the committee, affected persons, and all owners.[5] Seven submissions were made. No committee submission was made, with secretary advised members would make individual submissions. The applicants obtained and responded to the submissions.[6]
• [10] The application was referred to department adjudication.[7] I have now investigated the dispute, including reviewing the application and submissions.[8]
• [11] I note the parties refer to matters discussed in the conciliation. However, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding.[9] Accordingly, I have not had regard to those matters.

• [12] The affected persons oppose the application. They dispute assertions in the application and object to the conduct of the applicants about the matter. They say they advised the applicants that would remove palm tree 1 if it ever encroached on the applicants' property, but there was no need to remove palm tree 2 as it has no impact on Lot 9.
• [13] They say palm tree 1 is healthy, not causing a nuisance, and has no impact on the applicants. They acknowledge it impacts Lot 6. They say they approached the owners of Lot 6 and agreed to trim the tree to lessen its impact on the view from Lot 6 and will remove it when requested by the owners of Lot 6, which is anticipated to be within 12 months. They say if the applicants had approached them with the same courtesy and respect, the matter may not have escalated.
• [14] The submission says palm tree 2 can only be seen from a side balcony of Lot 9 which is used for hanging washing. They say the only view obscured from that balcony is of the trees on the adjacent council park, which obscure any water views. They further say the tree is 8.5m from the applicants' lot and screens the living areas of Lots 1, 3 and 6 from the adjoining building.
• [15] The affected persons deny contravening any by-law. They say By-law 9(d) does not apply to the palm trees in their exclusive use courtyard as they are not located in or on a balcony, rooftop terrace or garden area, or a pot or planter box. They say there is no common law right to a view and the extent to which the by-laws could alter those rights do not include the current circumstances. They say there is no basis for the applicants to complain about an alleged interference with their view and neither palm tree materially interferes with their view.
• [16] Five submissions from owners substantively oppose the application. One supports it.
• [17] One submitter says it is obvious from the applicant's own submission that palm tree 1 does not currently obstruct the view from Lot 9. They say there is no other formal owner complaint about palm tree 1. They note the tree does not pose a danger to persons or property and the applicants do not submit that it does. Three submissions acknowledge that palm tree 1 may obstruct Lot 9's view in future and that there may be a case to remove it when it does.
• [18] All the opposing submissions say removing palm tree 2 would not affect the views from Lot 9's side balcony, as the river view is already obstructed by the council trees in front of the scheme. One notes there could never be an uninterrupted view of the water from that balcony. Another says only a small portion of the balcony is affected and they dispute that any obstruction, regardless of how minor or insignificant, would fail the test in the by-law. They note there is no right to a view under common law. One says there has been no complaint received from any other owner about palm tree 2. Two submitters note the tree does not present a danger.
• [19] Some submitters comment that the trees provide screening and privacy, including to the submitters. One questions whether a partial view should be prioritised over privacy. Another says the owners of the lots below Lot 9 want to keep palm tree 2 to provide privacy from the neighbouring building and removing it would interfere with the use and enjoyment of their lot.
• [20] One owner says mature trees have been part of the complex surrounds for years, and another says the palms contribute to the tropical feel of the scheme. One submitter asserts the trees were part of the original building landscape plans. They provide copies of those plans showing Majestic Plans in the approximate location of trees 1 and 2. They dispute the applicants' contention that the original plants no longer exist, and say a garden redesign in 2017 did not include the exclusive use courtyard.
• [21] One owner questions whether By-law 9(d) applies as the trees are on common property.
• [22] There is also a comment that the applicants are obstructing their own and others' views.
• [23] However, one owner supports the application. They say other owners have issues with trees on common property blocking their views and By-law 9 applies to trees on common property. They say it is important to ensure owners' rights to views.
• [24] In reply, the applicants object to the opposing submissions and dispute various statements made. They allege a refusal of the owners of Lot 1 and the committee to engage in discussion on the issue. They make allegations against committee members and about the operation of the committee. The applicants say palm tree 1 has grown significantly in the almost 12 months since the conciliation and is now 'prominently obstructing' their view. They claim the owners of Lot 2 recently agreed to remove a palm tree in their exclusive use garden, which is in a similar location to palm tree 1, following discussions with the owners of Lot 5. The applicants then say their second balcony is used for a variety of purposes, not just hanging washing. They say the issue is not only that of a water view and that an individual perspective exists in relation to the level of interference of a view. They sat the council trees lining the river form part of the view obstructed by palm tree 2. They note the tree canopy in the park opposite is thicker at higher levels. They say the body corporate did not say the by-law did not apply. They say the by-laws do not have a provision for privacy and privacy can be obtained by a range of products.

• [25] The applicants assert the body corporate has failed to uphold By-law 9(d), and allege that the owners of Lot 1 are in breach of it. The substantive issue to decide in this dispute is whether the body corporate has met its statutory obligation to enforce the by-laws. It is not necessary for that purpose to determine if the by-law has been breached, but evidence of a breach is relevant to the question of whether the body corporate fulfilled its obligations.
• [26] Questions of whether the applicants or any other person have breached other by-laws are not relevant to this issue in this application. I also do not consider that allegations about the conduct of individuals or the operation of the committee, or the veracity of the different versions of discussions about the palm trees, to be relevant to the matters I must decide. Furthermore, as conciliation agreements are not legally binding, I will not consider whether or not the committee complied with the partial agreement it reached with the applicants.

• [27] All owners and occupiers must comply with the CMS, including the by-laws.[10] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.
• [28] If a body corporate wishes to pursue an alleged by-law breach, it can decide to issue a by-law contravention notice.[11] The notice must state certain things, including the nature of the breach, and be given to the person believed to be breaching the by-law.
• [29] A body corporate is not required to issue a by-law contravention notice when it receives notification of an alleged breach. It is also not required to issue a contravention notice when it believes a by-law may have been breached. The legislation says the body corporate must:
  1. reasonably believe the owner or occupier is contravening the by-law, and
  2. reasonably believe the circumstances of the contravention make it likely that the contravention will continue or be repeated.
• [30] If those criteria apply, the body corporate may give the person a contravention notice requiring them to remedy or not repeat the contravention. It may not be reasonable to issue a notice for every by-law breach that is identified. For example, minor or isolated breaches, or breaches that be addressed without formal action, may not warrant a contravention notice being issued.
• [31] However, if a body corporate has evidence of a clear contravention of a by-law that is substantive and ongoing, it may be unreasonable not to act to enforce the by-law.
• [32] If the body corporate decides to issue a contravention notice, and the alleged breach is not remedied, the body corporate must consider what action is required to enforce the by-law. It could seek compliance with the by-law through an application to the Commissioner's office or to take action in the Magistrates Court for the offence of failing to comply with the contravention notice. But there may be other steps the body corporate could reasonably decide to take.
• [33] Although the legislation imposes an obligation on the body corporate to enforce the by-laws, it also provides avenues for owners and occupiers to raise concerns. They can notify a body corporate if they reasonably believe another owner or occupier has breach a by-law and if the circumstances of the contravention make it likely that the contravention will continue or be repeated.[12] A complainant must use the prescribed form to notify the body corporate.[13]
• [34] If a complainant gives the body corporate a prescribed form and it advises within 14 days that it has issued a by-law contravention notice, the complainant cannot purse a dispute about the alleged breach against the person they are complaining about. Rather, the legislative expectation is that the body corporate will act on the contravention notice it has issued. But a complainant could pursue an application against the person allegedly breaching the by-law if the body corporate does not notify them within 14 days that it has issued a contravention notice. In either case, the complainant can pursue a dispute with the body corporate if they believe it has failed to comply with its obligation to enforce the by-laws.

• [35] The Esplanade was registered in May 1995. It is an 8-storey building with a basement carpark on Level A and residences on Levels B to H. Lot 1 is located on the southeastern side of Level B. It is located below Lot 3 on Level C, Lot 6 on Level D and the applicants' Lot 9 on Level E. Lot 9 (as with the lots below) has a balcony at the front of the building and another to the side.
• [36] The CMS includes by-laws providing for exclusive use of common property, as described in schedule E and illustrated on attached sketch plans. Most relevantly, By-law 18 grants the owners and occupiers of Lots 1 and 2 the exclusive use of a 'courtyard facility' on the common property marked on sketch plan 'Level B'. These exclusive use rights were granted soon after the body corporate was established.[14] Under the by-law, the owners are to keep their area neat and tidy and keep all plants on it properly tended and watered. The attached sketch plan shows the area allocated for the exclusive use of Lot 1 as surrounding Lot 1 on 3 sides, extending to the side boundary of the scheme land. The upper boundary of the exclusive use area would only extend to the height of Level B.
• [37] It is evident from the submitted photographs that the vegetation on scheme land includes several palm trees. A landscape plan dated January 1994 shows two Majestic Palms on each side of the front of the building, in the areas that appear to be the exclusive use courtyards. It is not disputed that the two palm trees in dispute in this application are planted in the exclusive use area allocated to Lot 1.
• [38] The submitted material indicates that palm tree 1 is located at the front of the building, adjacent to the front balconies of the lots on the southeastern side of the building. Palm tree 2 is located to the side of the building, near the side boundary of the scheme.
• [39] Prima facie, the body corporate is responsible for common property and for maintaining it in good condition.[15] However, pursuant to the regulations, which are not displaced by the terms of By-law 18, the owner of Lot 1 is responsible for the maintenance of the common property over which they have been granted exclusive use.[16]
• [40] I also note there is a general principle that the ownership and responsibility for a tree rest with the owner of the land on which the tree is growing, even if part of the tree (such as tree roots or branches) extend or grow beyond the boundary of the property. In Queensland, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act) refers to a tree being situated on land if the base of the tree trunk is (or was) situated wholly or mainly on the land.[17] The meaning of a tree under the ND Act would include a palm tree.[18]
• [41] Accordingly, I consider the owner of Lot 1 is responsible for all parts of the trees growing on the exclusive use area allocated to Lot 1, even when the tree grows beyond the upper boundary of the exclusive use area.

• [42] In their notice to the body corporate, the applicants alleged a breach of By-law 9(d)(iii). The relevant provisions of By-law 9, recorded in the current CMS,[19] are as follows:
  1. Appearance of Lots and the Building
     1. ...
     2. ...
     3. ...
     4. An Owner must ensure that all trees, shrubs, creepers, and plants in or on any balcony, rooftop terrace or garden area, pot or planter box contained in their Lot:
        1. are kept and maintained in good health and condition;
        2. do not extend beyond the boundaries of the Lot; and
        3. do not obstruct the views from any other Lot or interfere with the use and enjoyment of any other Lot.
     5. An Owner of a Lot which contains a balcony, rooftop, terrace or garden area, pot plants or planter box is responsible for the maintenance of such balcony, rooftop, terrace or garden area, pot plant or planter box, whether it is part of the title to the Lot or part of the Lot by way of exclusive use.
     6. ...
• [43] There is a question in this dispute of the construction and application of By-law 9(d).
• [44] By-law 9(d) imposes obligations on owners with regard to certain vegetation that is in or on a balcony, rooftop terrace or garden area, pot or planter box. By-law 9(e) imposes obligations on owners with regard to the balcony, rooftop terrace or garden area, pot or planter box itself (as distinct from the vegetation). By-law 9(d) refers to the balcony, rooftop terrace or garden area, pot or planter box contained in the lot. By-law 9(e) refers to a balcony, rooftop terrace or garden area, pot or planter box whether it is on the lot or is exclusive use. On the face of the by-law wording, the application of By-law 9(d) is limited to things on or in a lot, and not an exclusive use area allocated to a lot. By-law 9(d)(ii) specifically refers to the boundaries of the lot. Had the intention been for the obligations in By-law 9(d) to extend to exclusive use areas as well as the lot, arguably the clarification used in By-law 9(e) would have been included.
• [45] By-laws must be interpreted and applied based on what the body corporate has chosen to record, and not what members might consider fair or appropriate. Having regard to the wording and context, I consider By-law 9(d) does not apply to trees and other vegetation in exclusive use areas. If the body corporate wants to extent the obligations in By-law 9(d) to vegetation in exclusive use areas, it would need to amend its by-laws accordingly.
• [46] Where the applicants have not established that By-law 9(d) applies to the palm trees located on the Lot 1 exclusive use area, it follows they have not established any failure of the body corporate to enforce By-law 9(d)(iii) against the owner or occupiers of Lot 1.

• [47] Although I do not consider By-law 9(d) is relevant to vegetation in the exclusive use courtyard allocated to Lot 1, I will comment on whether the palm trees would offend the by-law if it did.
• [48] I have been given no evidence that the disputed palm trees are not in good health and condition. There is no indication that the owner of Lot 1 is not meeting their maintenance responsibilities in regard to the exclusive use area pursuant to By-law 18.
• [49] As the palm trees are not located in a lot, there can be no question of whether they extend beyond the boundaries of the lot. Undoubtedly the trees extend beyond the boundaries of the exclusive use area but that is not contrary to the by-law. Moreover, it seems palm trees may have been planted in this location (even if not these particular trees) from the inception of the scheme and likely always extended beyond the upper boundary of the exclusive use area.
• [50] The substantive issue for the applicants is that the palm trees obstruct the view from other lots or interfere with the use and enjoyment of other lots. I have no evidence that any owner or occupier other than the applicants asserts an obstruction with their view or an interference with the use or enjoyment of their lot. Accordingly, I will only comment on the impact of the palm trees on Lot 9.
• [51] The applicants have not provided any evidence that the palm tree 1 at the front of the building is currently obstructing the view from Lot 9 or interfering with the use and enjoyment of Lot 1. The material in the application indicated the tree was not yet impeding the view from Lot 1 but was expected to in future. The applicants' reply to the submissions asserts the tree has grown such that it is now 'prominently obstructing' their view. However, they provide no photographs or other evidence to support that claim. The fact that the tree might be expected to grow to obstruct the view from Lot 9 in future does not mean it contravenes the by-law now (even if the tree was subject to By-law 9(d)). It would not be until there was an actual contravention of the by-law that action would be required to be taken.
• [52] It is evident that palm tree 2 can be clearly seen from Lot 9's side balcony. Notwithstanding that, I do not consider the applicants have provided evidence that the palm tree is obstructing the view from Lot 9 or otherwise interfering with the use of their lot.
• [53] The palm tree, along with a lot of other vegetation, is clearly visible from the balcony. The applicants assert that their views were previously uninterrupted. However, they do not establish what 'view' is now being obstructed by the palm trees. It appears from the photographs supplied that any view of the Maroochy River and the park at the front of the scheme, for example, is primarily obscured by the larger trees on the council land and the adjacent apartment building. The applicants suggest the water, the sunrise, the park, and the trees on the park are part of the view that is being obscured. But palm tree 2 is arguably simply part of the vegetation visible from Lot 9.
• [54] I do not consider the mere fact that something is visible from a lot necessarily means it obstructs the view from the lot or interferes with the use or enjoyment of the lot. The applicants say the by-law do not differentiate the significance of an obstruction. But the fact that the outlook may have changed since palm tree 2 grew up does not necessarily mean the outlook has been obstructed. The applicants do not explain or quantify the extent of any alleged alteration to their view or impact on Lot 9. That would require some comparison of the outlook from the balcony before and after the palm tree was planted or grew to its current height and how the outlook from the lot was adversely affected as a result. And the applicants have not explained how the use or enjoyment of their lot has been impeded by the sight of the tree.
• [55] Accordingly, even if the body corporate's by-laws required that vegetation growing on an exclusive use area not obstruct the view from another lot or interfere with the use and enjoyment of another lot (which is not currently the case), the applicants have not yet substantiated that is occurring.

• [56] The applicants have not established that the body corporate failed to enforce the by-laws in regard to the palm trees on the Lot 1 exclusive use courtyard. But I will comment on the orders sought by the applicants in the event that they did.
• [57] As the application was brought against the body corporate, and not the owner or occupiers of Lot 1, the orders sought could only be made against body corporate.
• [58] The applicants want the two palm trees removed within 30 days. The applicants do not explain why the trees would need to be removed rather than be cut or trimmed to address any impact on Lot 9. And if the owner or occupiers of Lot 1 had breached the by-laws, the applicants have not explained why the body corporate should be responsible for any work necessary to achieve compliance with the by-laws.
• [59] The applicants also sought an order that the owners of Lot 1 not replant any vegetation in their garden that would mature to obstruct the views of other lot owners. Again, an order could not be made against the owners of Lot 1 when they are not the respondents to the application. Moreover, the applicants have not substantiated the basis for such an order. The applicants appear to be seeking an order to prevent conduct that is not in breach of a by-law because it could potentially result in a by-law breach in future. An adjudicator cannot make orders about hypothetical future contraventions of the legislation.[20]

• [60] The Act provides that an adjudicator may dismiss an application if satisfied the application is frivolous, vexatious, misconceived or without substance.[21] If an application is dismissed on that basis, the adjudicator can award costs (up to a maximum of $2,000) incurred by the respondent, the body corporate, and or an affected party for loss arising from the application.[22]
• [61] The affected persons assert that the applicants pursued this application knowing it had no substance. They argue the application should be dismissed as misconceived, frivolous, vexatious and without substance, with costs awarded. The applicants object to this.
• [62] The applicants have not established that there has been a breach of the by-laws or that the body corporate failed to enforce the by-laws. Although it is clear from the application that the applicants were aware of some question about the application of the by-law, the affected persons have not established that the applicants knew the application lacked foundation. On this occasion I have decided not to dismiss the application on this basis or award costs.

• [63] The applicants have not established that palm trees growing on the exclusive use area of common property allocated to Lot 1 are governed by By-law 9(d). Moreover, the applicants have not provided sufficient evidence or argument to substantiate that the palm trees would constitute a breach of By-law 9(d) even if that did apply. Accordingly, the applicants have not established that the body corporate has failed to enforce the by-laws. It follows that the application is dismissed.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[4] The owner and occupiers of Lot 1 were not a party to the conciliation agreement.

[14] Titles dealing 700851094, recorded 12 September 1995

[15] Noting section 94 of the Act and section 180 of the Standard Module

[16] Section 192 of the Standard Module

[19] Titles dealing 720398143, recorded 16 November 2020

[20] Daish v Body Corporate for Birchgrove CTS 100 [2013] QCATA 13

[22] Sections 270(3) and (4) of the Act