This article discusses whether body corporate tree height view restrictions can be added to protect views and what approvals may be required.
Question: We live in a rural body corporate estate with waterfront views. Is it possible to draft a by-law to limit the tree heights on some of the lots within the estate to preserve the views for all?
We live in a rural body corporate estate with waterfront views. The original building covenants for the estate included provisions for tree heights on private lots. We recently found out that because the developer’s building covenant is not registered within the CMS, the body corporate cannot take action with regards to that original covenant and therefore the tree heights which were stipulated in that covenant cannot be enforced.
The reason for the tree height restriction was to maintain the vista of the waterfront views for all owners. The current by-laws refer to those original covenants with regards to tree heights, but it appears that this clause is unenforceable due to the covenant not being a part of the CMS.
It is likely that the majority of owners would like to set a limit on tree heights for those waterfront properties in the estate. This would maintain the vista and views for all properties, including views from the common areas. Is it possible to draft a by-law that would in effect limit the tree heights on some of the lots within the estate to preserve the views for all?
Answer: Fortuitously, inside a community titles scheme, (almost) anything is possible with unanimous lot owner support.
In Queensland, trees can be very heavily regulated. Sometimes in rural settings, especially in riverine areas, there can be biodiversity protections arising under statute or a planning scheme. Added to that, local laws can also regulate tree removal. To deal with tree disputes with neighbours, we have the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Developers often put in place landscaping covenants for their benefit, but which don’t stack up after all of the lots have been sold. Inside a community titles scheme, landscaping codes can regulate trees, as can by-laws. All of that regulation creates a very difficult background for anyone trying to solve a tree problem.
Fortuitously, inside a community titles scheme, (almost) anything is possible with unanimous lot owner support. For example, a landscaping code can be inserted into the community management statement provided it is not contrary to any laws! Whether there is universal support for regulating trees (to protect views) or not, it is essential that this body corporate takes detailed and considered advice. That advice can lay the foundation for discussions with all owners to reach a solution acceptable to the whole community. If those discussions break down, then the Body Corporate will be better placed to decide whether to pursue a non-consensual resolution.
This post appears in the April 2021 edition of The QLD Strata Magazine.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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