Palm Lodge Apartments Fourteen Building Units [2000] QBCCMCmr 117 (1 March 2000)

P J HANLYREFERENCE: 0681-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1324
Name of Scheme:	Palm Lodge Apartments Fourteen Building Units
Address of Scheme:	80-84 Queen's Road HERMIT PARK 2 QLD 4812

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Shirley June Wall, the owner of lot 8



I hereby order that the application for an order that the palm tree at the rear of lot 9 be removed as quickly as possible, is dismissed.

I further order that the body corporate shall implement a regular maintenance programme to ensure that dead leaves are removed from all palm trees located on the scheme land.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0681-2000

“Palm Lodge Apartments Fourteen Building Units” CTS 1324

The applicant, Shirley June Wall, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

I request an order that the palm tree at the rear of unit 9 be removed as quickly as possible.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that she is living in fear of fronds falling from the royal palm tree in the courtyard of lot 9. The applicant further states that a large frond fell from the tree on 24 October 2000, as depicted in various photographs provided by the applicant.

All owners were invited to respond to the application. Several responses were received, and the views expressed in those responses varied. One owner stated that the tree had been inspected and had been cleared of being a danger. Another owner suggested that active maintenance of all trees in the scheme would ensure that public liability issues were addressed, and would also ensure a more equitable outcome for all owners. Another owner expressed similar views.

The owner of lot 9 expressed very strong views opposing the application, pointing out that owners had already decided at the extraordinary general meeting held on 6 November 2000 to obtain independent advice in relation to the royal palm, and then to further consider the issue at the annual general meeting to be held early in 2001.

I note that at the extraordinary general meeting held on 6 November 2000, 8 of the 14 owners decided to stay resolution 10 carried at the extraordinary general meeting held on 27 July 2000 (to remove the royal palm at the rear of lot 9) pending further investigation, reports and consideration of the body corporate. The owners further decided to vote again on the matter at the annual general meeting (now to be held in March 2001). The applicant voted in favour of this motion.

Section 109(1) of the Standard Module requires the body corporate to maintain common property in good condition. Although the area to the rear of lot 9, in which the royal palm is located, is allocated to the exclusive use of lot 9, the by-law making this allocation specifically provides that the owner of the lot is not responsible for the performance of the duty of the body corporate under the Act. Accordingly, it is entirely appropriate that the body corporate should concern itself as to issues of liability in relation to all trees in the scheme, and particularly this tree, if there is any suggestion that there is a potential for damage or personal injury. The photographic material depicts the large palm leaf, which fell into the exclusive use area of lot 8 in October 2000. No personal injury or property damage was caused as a result of this incident, however, I can understand that the applicant is concerned that the incident is not repeated.

I have also noted the undated and unsigned letter from Mr John Dowe to Ms O’Shea, the partner of the owner of lot 9, provided by the owner of lot 9 in his response to the application. Mr Dowe is a palm biologist employed at the James Cook University in the Tropical Plant Sciences Department. He was formerly the manager of palm collections for the Townsville City Council from 1992-1997. Mr Dowe states in his report, amongst other things, that “the royal palm has the reputation of being the only trees left standing after hurricanes, due to their anatomy which enables them to withstand being blown over.” Mr Dowe also states that he has had communications with other local authorities both in Australia and overseas, and he has never heard of any reports of personal injury from falling palm leaves

On 1 March 2001 I spoke by telephone with Mr Dowe, who advised me that the leaves of the royal palm dry out over a period of months before they actually fall down, usually in periods of high wind. Mr Dowe agreed with my suggestion that it would be entirely feasible for a regular maintenance programme to be implemented to remove leaves once they had started to dry out, and before they reached the stage of falling. Mr Dowe advised me that the Townsville City Council has implemented such a programme, whereby all coconut palms in public places are monitored to remove coconuts and any dead leaves to ensure that no person is exposed to the risk of personal injury.

In my view, the body corporate has a responsibility to ensure that the palm trees (royal palms and others) in this scheme are monitored on a regular basis to remove any dead leaves before they reach the stage of falling. The frequency of such monitoring should be determined by the committee in consultation with an appropriately qualified person (perhaps Mr Dowe). If such steps are taken, then based on the evidence before me, I do not consider that the royal palm located in the courtyard of lot 9 requires removal. Accordingly, I have dismissed the application. 2n