Quoin Harbour Views [2000] QBCCMCmr 331 (6 July 2000)

RA MeekREFERENCE: 0159-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19042
Name of Scheme:	Quoin Harbour Views
Address of Scheme:	Quoin Island GLADSTONE QLD 4680

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

John William Ryan, the co-owner of lot 48


RA MeekI hereby order that the resolution of the committee of the body corporate Quoin Harbour Views carried by flying minute at the committee meeting held on 24 March 2000 to the effect that the body corporate committee agrees to the slashing of body corporate property up to a maximum cost of $1500, is invalid and of no effect, and shall not be implemented.
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RA Meek
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0159-2000

“Quoin Harbour Views” CTS 19042

The applicant John William Ryan, the co-owner of lot 48, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order to prevent destruction of trees plants and shrubs on the common property contrary to by-laws 13(a) and 24i) as proposed and passed by committee.

On 30 March 2000, the following interim order was made -

RA MeekI hereby order that the committee of the body corporate Quoin Harbour Views shall not implement or otherwise put into effect the terms of the motion carried by flying minute at the committee meeting held on 24 March 2000 to the effect that the body corporate committee agrees to the slashing of body corporate property up to a maximum cost of $1500, until a final order to this application is made, the application is withdrawn or this order is of no effect by operation of law. n

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 applicant attaches a copy of a motion carried by flying minute of the committee on 24 March 2000 that the body corporate committee agree to the slashing of body corporate property up to a maximum cost of $1500 (such cost to include petrol, oil and any maintenance of equipment, such work to be carried out by the chairman). The resolution was apparently carried by 2 votes to 1.

The applicant considers the resolution is invalid on the basis that it conflicts with the by-laws, in particular by-laws 13 and 24 i). The applicant believes that the motion might be implemented as early as 1 April 2000.

The resolution carried by the committee is invalid, but not for the reason proposed by the applicant. The minutes indicate that three members of the committee voted on the two motions proposed at the meeting. Those committee members were Robson, Benn and Ryan (the applicant). The motion was carried by two votes to one. I assume that the applicant was the dissenting vote, given his opposition to this proposal. The two committee members in favour were the chairperson, Mr Robson, and Benn. It is noted that the motion proposes that the work is to be carried out by the chairperson, Mr Robson.

Section 34 of the standard module provides relevantly as follows –

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Conflict of interest
34.(1) A member of the committee must disclose to a meeting of the
committee the member’s direct or indirect interest in an issue being
considered, or about to be considered, by the committee if the interest could
conflict with the appropriate performance of the member’s duties about the
consideration of the issue.
(2) A member required under subsection (1) to disclose an issue must
not, if the member is a voting member, vote on the issue.

I consider it clear on the face of the motion that Mr Robson stands to gain financially from the motion being passed. Whilst this might have had no bearing on his voting “yes” to the motion, the terms of section 34 are clear; a committee member with a direct interest in a motion must not vote on the issue. Mr Robson’s vote is invalid and of no effect. Consequently, the motion failed, as the vote was tied. This body corporate is not authorised to proceed with the slashing on the basis of this motion. This technically is the end of the matter, however I now intend to go on and to discuss the application more generally in the hope of avoiding future dispute or conflict, and possible future applications to this office.

I quote from a circular letter to all owners sent by the applicant –

In the interest of keeping this letter brief I feel that my proposal of 10 March 2000 to Body Corporate Services sums up my opposition to the slashing motion. In addition there is now a significant wallaby population in the common property and also a growing multi-species bird population on the island. These would certainly be disturbed by wholesale slashing. My desire is to see the island flora and fauna returned to something approaching its original natural state for future residents to appreciate. With the regrowth constantly repressed and the existing trees growing old I have a concern that we will end up with no native trees and shrubs at all. ... I am therefore asking for your support in keeping Quoin Island green, shady and pleasant for people and wildlife.

There are a total of 49 lots in the scheme, which is described by one person as being a “residential estate”. It appears that currently there are a number of vacant lots. I suggest that in future any motion regarding this slashing of common property be put to a general meeting of the body corporate, as was proposed with the first motion considered at the committee meeting. This, rather than a committee meeting, is a forum more able to reflect the views of the majority of owners. I am informed that slashing of common property has occurred annually for the pasted 10 years or so. If such action is considered necessary on an annual basis, then perhaps a motion to this effect might be included on the agenda of the AGM each year. If a motion to this effect is included on the agenda of a general meeting, it would be determined in accordance with the view of the majority of owners, not one owner who clearly seeks an absolute prohibition on any form of slashing, as I consider is abundantly clear from the above quoted passage. The applicant is absolutely entitled to hold this view, however he is not entitled to impose this view on all owners, unless he can convince a majority of owners to vote against any future proposal regarding slashing.

I next want to refer to the grounds on which the applicant relied in support of his application. I intend to do this so the applicant might have the benefit of my views regarding the validity of such arguments in any future application he might consider necessary. Obviously the issue of slashing of common property will arise again.

The applicant relied for invalidity of the motion on by-laws 13(a) and 24i). 13(a) provides that a proprietor or occupier of a lot shall not damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property. The clear intent of this by-law is to prevent damage by owners or occupiers to vegetation of whatever type located on common property. The by-law does not apply to the body corporate, and further, could never be interpreted as overriding the duty of the body corporate contained in section 114 of the Act to administer, manage and control the common property reasonably and for the benefit of lot owners. Without doubt, a body corporate has the right to cut, slash, remove, whatever, vegetation growing on common property, provided that the same is generally for the benefit of owners.

Section 24 is far more relevant to the applicant’s contention. It provides that without derogating from the duty of the body corporate to maintain the common property, the body corporate must to the maximum extent reasonably practicable preserve all trees on the common property. This is a definite statement of intention regarding preservation of trees located on common property. Again however, this will never be interpreted as a prohibition on the body corporate from maintaining common property for the benefit of owners generally. In fact the by-law is specifically made subject to the duty of the body corporate to maintain the common property.

Further the by-law is limited to “trees”. In contrast, by-law 13 refers to “any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property”. The restricted nature of by-law 24 is to be contrasted with the very general terms of by-law 13. Given the language of by-law 13 which includes a reference to trees, I do not consider it could be argued that trees in by-law 24 should be interpreted widely to include all vegetation, an interpretation which would appear to suit the applicant’s purposes. The applicant should therefore not assume that this by-law supports his proposal for an ‘order to prevent the destruction of trees, shrubs and plants on the common property”. I assume that a far more restrictive interpretation would be considered appropriate.

Had the resolution of the committee not been invalid for reason of conflict of interest, I would have ordered that the slashing of common property could proceed in accordance with the terms of the motion, provided that no trees were removed. Slashing is normally done by some type of tractor moving over land cutting or “slashing” undergrowth. Slashing is hardly employed to removal trees. The reference to trees however in by-law 24 would not include “shrubs and plants”. Most people would be able to distinguish between a tree and a shrub. Shrubs could be slashed under the authority of the motion.
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