Neptune Point [2000] QBCCMCmr 29 (25 January 2000)

RA MeekREFERENCE: 0655-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7928
Name of Scheme:	Neptune Point
Address of Scheme:	27-29 Surfers Avenue MERMAID WATERS QLD 4218

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

Gordon William Sargood and Alice Elizabeth Sargood, the owners of lot 5

RA MeekI hereby order that the application by the owners of lot 5,Gordon William Sargood and Alice Elizabeth Sargood, for an order that the front curving fence be realigned outwards on the proposed replacement fence to allow easier entry and exit to their garage, is dismissed. ny

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0655-1999

“Neptune Point” CTS 7928

The applicants Gordon William Sargood and Alice Elizabeth Sargood, the owners of lot 5, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Request end of front curving fence to be realigned outwards on proposed replacement fence to allow easier entry and exit with is very difficult at present because of placement of pier facing directly to my garage.

The Applicants also sought an interim order, and on 10 November, 1999, the following interim order was made -

RA MeekI hereby order that the decisions of the committee taken at the meetings held on 11 and 20 October 1999, relating to the replacement of the front brick fence (the fence), are invalid and of no effect.

I further order that the body corporate shall not consider the fence further, until a final order to this application is made, this application is withdrawn or this order is of no effect by operation of law.

I further order that the body corporate shall provide a copy of this order to all owners within seven (7) days of the date of this order. y

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)).

In the supporting grounds, the applicants stated that –

She has requested the body corporate for several months to consider shortening the end of front fence or having realigned outwards on the proposed replacement fence to allow more room to manoeuvre my car into garage. A very difficult operation at the present. This would entail only few feet but would make a great difference to me. ... I have the smallest turning area of all 7 flats. ...

I was not told of any meetings when decisions made and quote accepted until after they were all over. I had no say at all. This is our only change of improving the situation. ...

In response, the committee stated in its submission that -

We submit that the existing shape is an aesthetic and practical asset, not only complementing the continuation of the wall on the other side of the entrance, but also affording an element of privacy. As for the matter of strength, stability and anchorage, it is felt that only a structural engineer could offer the relevant advice.

In the interim order, I concluded that –

I consider that the decision of the committee to replace the fence taken at the committee meeting held on 11 October 1999, is invalid and of no effect. Under the standard module, a committee must not make a decision on a matter the cost of which is in excess of its expenditure limit (see section 103 of the standard module regulation). The relevant limit for committee spending is $100 per lot. Given that there are seven lots in this scheme, then the total amount of expenditure which this committee might authorise is up to $700. This committee have however authorised the expenditure of over $2600; almost four times the expenditure limit of the committee. Secondly the committee have then sought to raise a special levy to carry out the work. Section 26 provides that a decision fixing or changing a contribution to be levied by the body corporate is a restricted issue for the committee. A committee is not authorised to make a decision on a restricted issue.

In the circumstances, the decision of the committee to replace the fence, and to raise a special levy for this purpose, are invalid and of no effect. To be valid, this matter will need to be considered by the body corporate in general meeting, at which two or more quotes for the work proposed must be considered. It is then for all owners to vote on the proposal, not simply committee members.

I concluded my interim order as follows -

I intend to order that the decisions of the committee taken at the meetings held on 11 and 20 October 1999 are invalid and of no effect. I further intend to order that the body corporate shall not consider this matter further, until a final order to this application is made. Finally I intend to order that the body corporate are to provide a copy of this order to all owners within seven (7) days of the date of this order, so that all owners might be informed of the current position regarding the fence, and why the committee previous decisions in regard to the fence, are invalid. In the meantime, I intend to seek submissions from all owners, and to then undertake an inspection of the scheme, with the view to determining the applicant’s principal concern, the question of the curvature of the fence line. I do not consider that the delay in determining this matter will inconvenience any owner to any significant extent.

I am now in receipt of submissions from owners regarding the application, and in addition (as contemplated in the interim order) on Friday 21 January, 2000 I conducted a physical inspection of the scheme to consider the location of the fence, and the question of the curvature of the fence line.

It is clear from submissions that the majority of owners are opposed to the order which has been sought by the applicants. There are seven lots in the scheme, the owners of four of which have responded, leaving only two owners who have not. Some of the reasons advance by other owners for retaining the current curvature in the fence line include –

•	The curve is essential for stability and longevity of the fence;
•	The curve offers privacy and gives a feeling of security;
•	Removal of the curvature would detract from the aesthetics and design attributes of the structure;
•	The additional costs associated with the changes (alterations to the footings and piers ($420) and re-positioning the fence light ($160)) are not warranted;
•	The committee have already made reasonable endeavours to accommodate the requests of the applicants including the clearing of an additional area in the courtyard.

In addition, other owners have disputed the alleged degree of difficulty associated with the use of the applicant’s garage. One states –

It only needs a slight turn of the steering wheel to drive the car in and out of their garage. Anyway with basic driving skills can do it easily. The fact that Mrs Sargood has been driving her car in and out of her garage for the last five months speaks for itself.

As I indicated, I conducted a physical inspection of the scheme to objectively assess the accuracy of the applicants complaint. The seven units are aligned roughly in a straight line across the scheme, and all facing the common property courtyard and driveway entrance. The driveway entrance is reasonably wide by most standards. The applicant’s lot is closest to the front fence line and in particular, the curvature of the fence line. However, in all the circumstances, I have come to the conclusion that the re-alignment of the curvature of the fence-line is not warranted.

It seems to me that the applicant’s principle point is that the brick pier at the end of the curvature of the fence faces directly towards the centre of the applicants garage. After my physical inspection, I do not agree with this statement. Several of the units, and in particular unit 5, have been constructed on a slight angle, which angle is in fact consistent with the curvature of the fence. Given this angle, I conclude that rather than the pier facing the centre of the applicant’s garage, it in fact faces the centre dividing pier between the garages of lots 5 and 6. In my view, this is significant. Given the angle of the garage, I consider that the applicants would need to in fact turn their wheel when exiting in order to head towards the brick pier. If however, they maintain a straight alignment, then I conclude that the applicants will in fact reverse into the area immediately behind the curvature, which I note has been cleared. In addition, the applicants would be able to use the position of the brick pier as a reference point when reversing, keeping it in their righthand side mirror at all times when reversing. The applicants can then proceed to exit the scheme in a forward direction. Further, I do not consider that any greater difficulty would be encountered when entering the garage from the road.

The applicants have also stated that “all other garages have several feet more”. This is so, in that other units appear to be further set back on the block. However, I do not consider that the area in front of the applicant’s lot is so reduced as to warrant the change in the fence line which the applicants are seeking. Moreover, it is correct that the applicants did purchase their lot fully aware of the positioning of the fence line. Whilst it is appropriate for the applicants to raise the question of curvature of the fence line at a time when the body corporate is having to rebuild the fence, the applicants have not satisfied me that the current positioning of the fence is such as to create a serious impediment for them in their use and enjoyment of the common property, warranting the change (the removal of the curvature) as sought by the applicants.

Further, I accept as valid and reasonable several of the reasons expressed by other owners for opposing the removal of the curvature from the fence line, in particular the additional cost, and resultant lack of both privacy and aesthetics. I doubt however that the curvature of the fence line in any way enhances security aspects for the scheme.

In the circumstances, I intend to dismiss the application. The body corporate is now at liberty to proceed with repairs to the fence, provided the repairs are approved in the manner required by the legislation, in particular section 104 of the standard module which requires a minimum of two quotes considered at a general meeting.
ny