Harvesting Investments Pty Ltd as trustee, owner of Lot 2 (affected person)

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

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

INTERIM ORDER - whether an interim order is warranted.

1. Pending a final determination of this application, the Body Corporate for The Esplanade Picnic Point must not implement the motion resolved outside a committee meeting on 28 November 2025 and ratified at a committee meeting on 1 December 2025.
2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

1. The application for interim orders is otherwise dismissed.

[1] This application is about a committee resolution to remove or trim trees at the scheme.

[2] On 28 November 2025 the committee resolved outside a meeting to approve the removal and cutting of vegetation in the rear carpark garden area, and expenditure up to $3,000 for the work. The resolution referred to: removing and grinding the root system of two clumps of golden cane palms at the carpark entry which were said to be damaging the cement retaining walls; the removal of a single self-sown tree in the western side of the carpark with a root system likely to further damage the cement retaining wall; and trimming foliage at the rear of the lefthand side to hedge height. The resolution was confirmed at a meeting on 1 December.

[3] The applicants are concerned about the loss of amenity to their Lot 5 from the work, including the loss of privacy, shade, noise and dust attenuation from the main road, and energy efficiency gains. They say the committee has provided no expert evidence that the trees have damaged the retaining walls or pose a current or future risk.

[4] The applicants seek to invalidate the committee resolution. They want the trees not to be trimmed or removed unless it is resolved at a general meeting and the body corporate has considered independent reports. In the interim, the applicants seek to restrain the committee implementing the resolution or otherwise undertaking work on the trees and hedges. At this time, I will only consider whether an interim order is warranted.

[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 units plan 102408.

[6] The application seeks the following interim orders:

That, pending the final determination of this application, the Body Corporate for The Esplanade Picnic Point CTS 17173, including the committee and any contractors engaged by it, must not implement or act on out-of meeting resolution Number 18, as reported in minutes of committee meeting dated 01 December 2025 and distributed on 10 December 2025, and must refrain from carrying out any trimming, cutting, lopping, reduction, removal or other alteration to the trees or hedge foliage located on common property at the rear of the building.

[7] The application then seeks the following final orders:

ORDER 1 That the committee out-of-meeting resolution #18 to trim and remove trees located on common property at the rear of the building is declared void and of no effect, and the body corporate must not act on, implement, or rely upon that resolution.

ORDER 2 That the body corporate must not undertake the trimming or removal of the trees identified in the application unless and until a valid resolution is passed at a general meeting.

ORDER 3 That the body corporate must not carry out works to trim or remove trees in the rear common property gardens unless it has first obtained and considered reports from appropriately independent, qualified persons addressing the potential for trees in the rear common property gardens to cause damage to retaining walls and ascertaining the cause of existing damage to the retaining walls.

[8] 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 CMS, or the exercise of rights or powers or performance of duties under the Act or CMS.[1] In particular, an adjudicator may make an interim order if satisfied on reasonable grounds it is necessary due to the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to decide this matter.[3]

[9] This application was lodged on 17 December 2025. The Commissioner's delegate sought clarification from the applicants on some aspects of the application,[4] which was amended.[5] The Commissioner then referred this application to me to decide if the circumstances warranted an interim order,[6] notwithstanding that notice of it had not yet been given to others.

[10] In the first instance, I sought information on the status of the matter from the body corporate.[7] The body corporate manager advised the work was in abeyance because the committee was aware of the applicants' concerns. The committee then undertook in writing not to schedule or action work on the disputed trees until the interim order was decided.

[11] There is no statutory requirement to obtain comment from a respondent before an interim order is decided. However, in the circumstances (including the undertaking), I gave the committee a limited opportunity to respond to the application. A submission was made.

[12] The committee acknowledges the applicants' concerns about the trees adjacent to the rear wall of their lot and does not wish to increase those concerns. It says its resolution was in the context of maintenance, for which it is responsible, not an improvement. For that reason, it considers the resolution is valid. It did not intend undue negative impacts for Lots 2 and 5.

[13] The committee says issues with the rear garden were brought to its attention when a builder was engaged to repair some cracked garden edge walls in preparation for painting. The builder reported having to remove multiple root systems in the entry garden before repairs could be undertaken. That led to an inspection of the rear garden which noted 2 trees were planted close to the wall and could potentially expand to caused damage in future. These trees had grown to a significant height, rather than being maintained at hedge height as originally intended. It says those trees were not on the original landscape plan. However, it says the trimming was not intended to cause a disbenefit to Lots 2 and 5.

[14] The submission details its discussions with the applicants. It understood the applicants would obtain an independent arborist report and then discuss the matter further. It needed time to communicate and provide a whole of committee response to the applicants, but this application was lodged before that could occur. However, it still believes a mutual agreement can be achieved and it is committed to resolving the applicants' concerns.

1. It is amenable to not trimming or removing the trees in the southwest corner of the rear carpark at this time. But if the girth of the trees expands further, with consequential root expansion relating to any increased height, it could review that position.
2. The root systems of the golden cane palms have impacted the integrity of the cement edging and caused cracking. Root systems can also damage irrigation pipes and electrical connections. The palms are not on the landscape plan. It would like to replace them with more appropriate and suitable foliage of up to half a meter in height.
3. A single tree in the side west garden bed is understood to be self-seeded and is not on the landscape plan. Given the rapid growth of this tree, it considers it should be addressed sooner rather than later. The tree is inappropriate in the existing garden, has branches overhanging the neighbouring property, and its root system has the potential to damage the garden bed wall or even fall in high winds. The cost of removing the tree increases as it grows taller and larger. It wants to remove the tree and replace it with foliage in keeping with the existing garden.

[16] The only issue at this time is whether an interim order is warranted. However, it is necessary to consider the substantive issues in dispute to decide whether to make an interim order.

[17] Any order granted must be just and equitable. [8] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[9]

[18] An adjudicator must first be satisfied an application raises serious legal questions to be decided. They must then consider whether the balance of convenience between the parties justifies injunctive relief. That means an adjudicator must balance the impact on the respondent and others of granting relief now if final orders are ultimately refused against the impact of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence an interim order is necessary to prevent serious or irreparable harm.

[19] I will note at the outset that there appears to be some willingness on both sides of this matter to pursue an amicable resolution to the applicants' concerns. Although there was some attempt to do so before this application was lodged, it seems this application may have been lodged as a result of a misunderstanding or miscommunication about the status of the matter.

[20] Fundamentally, the applicants seek to invalidate the committee resolution approving the tree removal and trimming. They variously allege:

1. this was a restricted issue beyond the committee's power, pursuant to section 52(1)(b) of the Standard Module, for significant and irreversible changes to common property
2. the resolution was not made in a procedurally proper manner, pursuant to section 68 of the Standard Module, as notice of the motion was not given, and
3. the committee has not acted reasonably by making a decision that significantly affects the common property and lot amenity without notification, consultation and without adequate reason, contrary to section 94 of the Act.

[21] I will note some general legislative concepts, and then consider the disputed resolution.

[22] The body corporate has a statutory obligation to administer the common property for the benefit of all owners.[10] Specifically, it must maintain common property in good and structurally sound condition.[11] It must act reasonably in carrying out its functions and making decisions.[12]

[23] Maintenance includes repairs or "...the replacement of something already there, which has become dilapidated or worn out ... albeit that it is a replacement by its modern equivalent...".[13] Maintenance can be preventative, for example undertaking termite inspections and laying termite barriers will be maintenance. Removing a tree that is at risk of falling or risks damage to other property may be categorised as maintenance.

[24] By contrast, additions or changes to common property that are not necessary to maintain the property are considered an improvement even if they are associated with maintenance. For example, if a body corporate needed to repair a dilapidated timber fence on common property and did so by replacing it with a new timber fence of the same style (albeit not necessarily identical), that would be maintenance. But if the body corporate took the opportunity to upgrade the fence, for example to metal, it would be an 'improvement'.

[25] The Act defines an 'improvement' as including the erection of a building, structural change, and non-structural change.[14] That definition refers to the Acts Interpretation Act 1954, which defines 'change' as "includes change by addition, exception, omission or substitution." A body corporate can resolve to make improvements to common property.[15]

[26] The committee has the power to make decisions for the body corporate, except on a restricted issue.[16] A decision involving expenditure above the committee's approval limit or that must be decided at a general meeting will be a restricted issue for the committee. Also, a decision that changes the rights, privileges or obligations of owners will be a restricted issue.[17]'

[27] Generally, the committee can incur spending up to its spending limit.[18] In this scheme, the committee spending limit would be $3,400 unless some other amount has been set at a general meeting.[19] The committee could incur up to the basic improvements limit of $5,100 (subject to its spending limit) on improvements to common property, but beyond that a general meeting resolution would be required to approve improvements.[20]

[28] The committee can make decisions either at a committee meeting or via a vote outside a committee meeting. Advice of a committee meeting must be given to owners (unless they have asked not to receive such advice) and be accompanied by an agenda.[21] However, the committee can consider issues that are not on the agenda.[22] Advice of a motion to be decided outside a committee meeting must be given to all owners (unless they have asked not to receive such advice) when notice of the motion is given to committee members.[23] The motion must also be confirmed at the next committee meeting.

[29] Aside from the general obligation to act reasonably, there is no statutory requirement on a committee to consult with owners before it makes a decision or to give reasons for it.

[30] The onus rests with a person challenging a decision to establish that it is unreasonable, procedurally invalid, or otherwise unlawful.

[31] From the submitted material it appears the vegetation the disputed resolution is on common property that is not the subject of an exclusive use by-law. It is evident the committee proposed the work to maintain the common property. The applicants appear to question whether the work is required for maintenance purposes

[32] If the vegetation is damaging retaining walls, or otherwise is in poor condition or is detrimental to the common property, it may be reasonable for the body corporate to remove, replace or trim it regardless of any adverse impact on the applicants' lot from doing so. However, at this stage, I have insufficient information to comment on whether any the proposed work is reasonably necessary. That may require further investigation. It appears the applicants intended to engage an arborist, but I am unclear if they have done so. A body corporate does not necessarily need to obtain expert reports any time it is considering maintenance works. But if works are significant or could have significant impacts, it may be reasonable to do so.

[33] If the work was not reasonably necessary to maintain the common property, the body corporate could still choose to do it. However, there may be questions of whether it would be reasonable to do so if it would have adverse impacts on some lots. That is again a question that may require further consideration.

[34] I would note that whether something is on the original landscape plan for the scheme, is not necessarily determinative of whether it must be retained or should be removed. Unless the development approval for the scheme requires the landscaping to be kept in accordance with original plans, or the body corporate has resolved to do so, prima facie the body corporate's decision-making obligations apply to all vegetation whether or not it is on the original plans.

[35] Prima facie, given the $3,000 expenditure, it was within the power of the committee to resolve to undertake the work whether it should be categorised as maintenance or an improvement. And although the removal or reduction of trees near the applicants' lot may affect the amenity of the applicants' lot, I am not immediately persuaded that it would change the applicants' rights or privileges. Accordingly, at this stage, the applicant's have not established that the decision was a restricted issue for the committee.

[36] The applicants say the consideration of the committee motion was procedurally defective. The record of the motion (Motion 1) passed outside a committee meeting is dated 28 November. The minutes of the committee meeting on 1 December (which one of the applicant's attended) record a discussion on 'rear garden maintenance', including consideration of the applicants' concerns. The minutes also ratified a list of votes taken outside a committee meeting. Item 18 on that list included the 28 November resolution, the status of which was listed as 'in progress'.

[37] The applicants assert that notice of the 28 November motion was not given to all owners. The committee did not comment on this. If it is the case, there may have been procedural non-compliance. However, where the resolution was ratified by the committee only 3 days later and before the resolution was implemented, it is not immediately clear why any such defect would necessarily warrant the invalidation of the resolution. The applicants have not challenged to procedural validity of the 1 December meeting which confirmed the motion.

[38] Also, while the applicants and the owners of Lot 2 clearly wrote to the committee objecting to the resolution, it is not clear that they gave the committee a notice of opposition to the motion (which must be signed by at least half of owners).[24]

[39] The applicants say they were verbally advised that a contractor was 'ready to go' and that the committee intended to undertake work imminently. They argue that would risk irreversible loss of the amenity provided by the trees. They seek an interim order to preserve the status quo.

[40] Notwithstanding the applicants' concerns, it appears that even before this application was lodged the committee was not intending to proceed with the works until there were further discussions. As such, the application may have been premature. It appears there may have been some miscommunication between the parties in that regard.

[41] Although the committee remains keen to pursue some works, it seems amenable to not pursuing other work until there is further indications of risks of damage. However, there is no indication in the committee submission that any of the work it wishes to pursue is urgent or that the granting of a temporary order restraining the works would have any adverse impact.

[42] To the extent that the applicants dispute the validity of a particular committee resolution, there may be some justification for restraining the body corporate from implementing that resolution until the questions raised can be addressed. However, the applicants also more generally seek an interim order to prevent the body corporate from carrying out any 'trimming, cutting, lopping, reduction, removal or other alteration to the trees or hedge foliage located on common property at the rear of the building.' An order in those terms would prevent the body corporate from undertaking even basic or minimalist maintenance of the vegetation in that area, despite its statutory obligations. It would prevent the body corporate acting on matters unrelated to the applicants' concerns, or if it passed a valid general meeting, or in urgent or emergency circumstances. The applicants have not substantiated the need for such a broad order.

[43] Although the body corporate may be amenable not to pursuing all the work approved by the disputed resolution, the entirety of the motion could be implemented unless it is invalidated or rescinded. I am satisfied there may be a genuine question about the need for all the proposed works. Accordingly, on balance I consider it appropriate to put the implementation of the resolution on hold until the dispute can be resolved. However, the applicants have not satisfied me that an order to prevent the body corporate undertaking any work related to the vegetation at the rear of the building is warranted at this time.

[44] The application for final orders remains to be determined. I will refer the application back to the Commissioner to progress under the Act.

[45] Given the circumstances, I will recommend to the Commissioner that the matter be referred to the Conciliation Service to explore whether the parties could resolve this dispute with the assistance of a conciliator. If the dispute is not otherwise resolved, I anticipate the Commissioner will seek submissions from the committee and all owners about the final orders before referring the application for final determination.

[46] The parties should note section 279(2) of the Act regarding the term and effect of an interim order. This interim order will have effect for a period of up to twelve months. The interim order will not automatically be renewed, and it will be up to the applicants to request an extension of the order if this application is not otherwise resolved within twelve months.

[47] The making of this order does not prevent the body corporate passing separate resolutions (either at a committee or general meeting) relating to vegetation at the rear of the building. That could include rescinding or amending the disputed resolution. The body corporate must act reasonably in doing so, including having regard to the matters arising in this application. If the applicants dispute any future resolution, they would be at liberty to challenge that decision.

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

[11] Section 180 of the Standard Module

[12] Section 94(2) and 100(5) of the Act

[13] Lord Denning in Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264

[15] Section 186 of the Standard Module

[16] Section 100(1) and (2) of the Act, section 52 of the Standard Module

[17] Section 52(1)(b) of the Standard Module

[18] Section 172 of the Standard Module

[19] 17 lots x $200, see 'relevant limit for committee spending' in schedule 1 of the Standard Module

[20] Section 186 of the Standard Module