Generally speaking, most new developments within the local council areas will include a vegetation plan noting plants and mature trees which are to be maintained at the scheme. Depending on the location of those trees, the regular maintenance may fall to the body corporate.

That said, it is not unheard of for a mature tree to find itself in an exclusive use area joined to a lot within the scheme.

For those new to bodies corporate, where a scheme is developed using a Building Format Plan and that plan includes outside areas accessible only by individual lots – those outside areas can be recorded either as being “on title” or “as a grant of exclusive use”.

Where an outside area is recorded as being “on title” it means the owner of the lot also owns that outside area – as though it was 100% part of their lot – because it is.

Where an outside area is recorded as being “a grant of exclusive use”, the area is part of the body corporate’s common property, however, the owner of the individual lot has the right (subject to certain terms and conditions usually found in the by-laws) to exclusively use that area.

So how then would a body corporate deal with a large tree, technically located on the common property, but which the body corporate has a specific interest in maintaining because it is under an original development approval for the complex?

In accordance with a recent adjudicator’s decision – the body corporate can in fact handball the cost of maintaining a large tree on to the owner – even where it is likely to be a large cost and the tree is a protected tree.

Relevantly in the Birchgrove Square East decision, the adjudicator found:

• Although the tree’s roots and branches extended beyond the boundary of the lot and even beyond the boundary of the scheme; and
• Although the body corporate had previously maintained the tree;
• The lot owner was the “tree keeper” for the purposes of the Neighborhood Disputes (Dividing Fences and Trees) Act 2011 and the lot owner took on the body corporate’s responsibility for looking after the tree on the terms of the exclusive use grant in the by-laws.

Looking at the history of the matter and how the tree keeper might have avoided the hefty expense of looking after the tree – it is possible the tree keeper did not instruct her conveyancing firm (at the time of her purchase of the property) to undertake a search of relevant Council records as to tree orders impacting the property. 

Had she undertaken that search she might have uncovered the tree order and made an informed decision about whether to proceed with the purchase or find a different property.

Perhaps it is time for protected tree orders to be noted on title – to keep

You can find the complete case here: https://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2024/438.html