Heritage Park [2000] QBCCMCmr 4 (11 January 2000)

P G DanielsREFERENCE: 0581-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20153
Name of Scheme:	Heritage Park
Address of Scheme:	27 Tristan Court BENOWA QLD 4217

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

P G DanielsI hereby order that the occupier of lot 25, Joannes Vanden Brook, must comply with section 120(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997 in respect of the garden on the lot.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0581-1999

“Heritage Park” CTS 20153

The applicant, the Body Corporate, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Requires the occupier of lot 25 to maintain his garden and lawns to a standard acceptable to that applicable within the complex.

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)).

The applicant states that Heritage Park is a townhouse complex comprising of 40 stand alone lots. Each lot has a private garden area which extends from the front of the lot to the common property footpath. The applicant states that the occupier of lot 25, Mr Vanden Brook, refuses to maintain the garden area which has resulted in the area being overgrown with weeds. The garden detracts from the overall appearance of the estate particularly those properties in close proximity to lot 25.

The applicant has supplied a number of photographs to substantiate its case. Two of the photographs show weeds growing in an area in front of lot 25. The weeds are in an area set aside for the growing of shrubs and small trees. Another photograph shows the pathway to the entrance door to the house on the lot being partially impeded by flowering plants. Other photographs show parts of the scheme land where gardens are kept in good order.

The respondent has not made a submission in response to this application. The facts that I have detailed above are not in dispute.

The applicant submits that the respondent is breaching By-law 17 which provides as follows:

17. Maintenance of lots

Each proprietor shall be responsible for the maintenance of his lot and shall ensure that his lot is so kept and maintained as not to be offensive in appearance to other lot owners through the accumulation of excess rubbish or otherwise. Further, all lots are to be so maintained as to prevent the excessive growth of grass and other vegetation making lots unsightly, increasing the risk or contributing to the spread of noxious weeks [sic] to other lots.

By-law 17 imposes maintenance obligations on owners of lots. The respondent in this case is an occupier. He is not contravening By-law 17 as it does not apply to him.

The By-laws are not the sole source of maintenance obligations. Other obligations are provided in the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation). Section 120(1) of the Regulation provides:

120.(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.

Section 120(1) imposes the maintenance obligation on an occupier. The garden in front of lot 25 is “readily observable” from other lots and common property. The presence of weeds and overgrown flowering plants indicates that this part of the lot is not being kept in a “clean and tidy condition”. In my view the applicant has established that the respondent has breached section 120 of the Regulation.

I will make an order requiring the respondent to comply with section 120 of the Regulation in respect of the garden on the lot.1n