Ainslie [2000] QBCCMCmr 169 (30 March 2000)

RA MeekREFERENCE: 0736-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7467
Name of Scheme:	Ainslie
Address of Scheme:	3 Telopea Street LABRADOR QLD 4211

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

Kirsty Anne Prenzler and Andrew Martin Prenzler, the owners of lot 2

RA MeekI hereby order that within two (2) weeks of the date of this order, the owners of lot 1, Graeme Ashley Turner and Robyn Nanette Turner shall remove both posts, the post boxes positioned thereon and the chain, which they have installed on common property of the scheme, and reinstate the common property to its former condition, including the former letter box. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0736-1999

“Ainslie” CTS 7467

The applicant Kirsty Anne Prenzler and Andrew Martin Prenzler, the owners of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Both posts and chain ... be removed and either:

a)	Letterboxes set up initially verbally agreed upon between us, on a single post and on the old letterbox site or
b)	The old letterbox re-installed.

Section 223(1) 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)).

I do not intend to restate the applicant’s grounds as these are known to the respondents, Graeme Ashley Turner and Robyn Nanette Turner, the owners of lot 1. Essentially the applicants are seeking that two posts, erected one on each side of the driveway, and a chain used to connect the two, across the driveway, be removed, and that a new letterbox, or failing this, the original letter box, be reinstalled in its original location. In particular, the applicants claim that the use of the chain denies access to their lot, which is tenanted. The applicants state a number of reasons for seeking the removal of the posts, which I have considered. Photographic evidence of the posts, together with chain and letter boxes has been supplied.

The respondents have responded to the application in a submission by their solicitor. The respondents submit that the chain is used to curb or prevent the anti-social behaviour of the applicant’s tenant (their son) and his invitees. The respondents state –

In order to keep the offending vehicles from the driveway and on the street, our client ran a chain across the driveway every evening and moved it first thing every morning. Since the chain has been in place, the problems have largely abated although only after a period of further harassment involving shinning of car lights into our ... unit and prolonged and deliberate revving of motor vehicles unable to access the driveway.

The respondents submit that neither the posts or chain would be necessary if the applicant’s tenant complied with “by-laws relating to quiet enjoyment, but also the usual common courtesies in respect of close proximity living”. The respondents conclude that –

(We are) happy to remove the offending chain provided the complainants give their clear and unequivocal undertaking that the occupant of unit 1, be it their son or someone else, will behave properly, responsibly, allow (us) to enjoy the quiet possession of (our) unit as (we) are entitled to. The posts will remain and if and such undertaken is given and subsequently broken, the chain will be replaced until appropriate order is restored.

The posts, chain and new letter boxes are improvements to common property. There is no evidence that these improvements have been authorised by the body corporate in general meeting.

The respondents clearly acknowledge that the posts, and use of the chain, are to curb alleged anti-social behaviour on the part of the applicant’s tenant and his invitees. However, this is not a justification or authorisation for their action in erecting the posts, letter boxes or chains. The respondents do not address the issue of authorisation. In particular, I consider the use of the chain at night to be contrary to the right of use of common property by the occupier of lot 2, and his invitees. Certainly, as an occupier of a lot, I would be very annoyed to return to my lot late at night to find a chain prevented my entry. This however is not to suggest in any way that the occupier of lot 2, or his invitees, have the right to cause nuisance or hazard in their use of the common property to the owners of lot 1, and in fact there is separate provision in the Act dealing with such alleged conduct or actions. Section 129 provides that –

ú
Nuisances
129. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The posts, and use of the chain however, are unauthorised, and the applicants are entitled to succeed in seeking their removal. I intend to order their removal and the reinstatement of the common property. In respect of the alleged actions of the occupier of lot 2, the respondents will need to adopt a difference course of action or response, should such alleged conduct be repeated.