Egger Lodge [2000] QBCCMCmr 447 (7 September 2000)

PJ HanlyREFERENCE: 0249-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20698
Name of Scheme:	Egger Lodge
Address of Scheme:	36-38 Holland Crescent CAPALABA QLD 4157

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

Shirley Dawn Cronau, the owner of Lot 12



I hereby order that the application by Shirley Dawn Cronau, the owner of Lot 12, for an order that the body corporate replace the existing timber boundary fence at the rear of the property, is dismissed.

I further order that the body corporate shall within one month of the date of this order carry out necessary repairs to the locked gate in the existing timber boundary fence at the rear of the property to properly stabilise the gate post, and to enable removal of the star picket which is currently stabilising the gate post.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0249-2000

“Egger Lodge” CTS 20698

The applicant, Shirley Dawn Cronau, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

I am seeking an Order for the replacement of the exiting Timber Boundary Fence at the rear of the property situated at 36-38 Holland Crescent, Capalaba.

The dispute is against the Body Corporate members who voted against the replacement of the said boundary fence.

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 the fence at the rear of Lot 12 is a boundary fence for the scheme, and abuts Council parkland, which provides a shortcut to shopping centres and a tavern. The applicant states that as a consequence, there is a large amount of foot traffic and for security reasons the fence needs to be replaced. She adds that as the horizontal rails are on the outside of the fence, there is an added security risk. Ms Cronau contends that some of the palings and horizontal rails are rotten, and that the access gate is braced with a star picket.

A copy of the application was forwarded to the body corporate secretary for distribution to all owners (excluding the applicant). Seven owners responded and opposed the application. In their response to the application, Stephan Solowsizi and Jannette Hardy provided a copy of a report from Gary Phillips Property Services Pty Ltd dated 11 April 2000. Mr Solowsizi and Ms Hardy state that (in relation to the back fence) the report “mentions unit 7 as a mistake he meant unit 12”. The unsigned report states “The fence at the rear of the property is generally in sound condition...fence rails, 20 are new. The remaining fence rails are in fair condition. Signs of dry rot on the surface of most rails at this stage. Current life estimated at 1-5 years...4 new palings in the yard of unit 7 (altered in pen to 12). The remaining palings appear to be in sound condition. Some minor dry rot is evident. Estimated life from 3 to 5 years.” Both Mrs Svensen from Lot 3 and Mr and Mrs Jordan from Lot 7 refer to an Extraordinary General Meeting (“EGM”) dated 1 April 2000 where several motions concerning the replacement of the fences were considered. Mr and Mrs Jordan state that Gary Phillips Property Services Pty Ltd was engaged to inspect the fences after the EGM. Both Mr and Mrs Jordan and Mrs Svensen state that the amount of traffic in the park has decreased as a result of work performed by the Council. Mrs Shimmons from Lot 6 submitted that she agrees with the position of the body corporate and the independent assessor, that she has never had anyone touching the fence, and that she has had people test the fence and they agreed with the assessor that the fence had a life of 4 to 5 years.

Mr and Mrs Jordan provided a copy of the minutes of the EGM dated 1 April 2000. The minutes indicate that a majority of lot owners voted against the motions to replace both the interior fencing and the rear fence. The minutes also show that the owners decided not to bring in an independent person to assess the rear fence.

On Tuesday 5 September 2000, a member of this office visited the complex to view the rear fence. As a result of that inspection I have been informed that:

1.	There are palings on that part of the fence adjoining Lot 12 which are not fixed to the railings and show signs of surface dry rot.
2.	The fence appears to be relatively stable.
3.	The locked gate has been stabilised by a star picket which is fixed to a fence post.
4.	Mrs Hardy and Mrs Tamou stated the minutes of the EGM dated 1 April 2000 are incorrect to the extent that owners voted in favour of the independent assessment of the rear fence, not against it as noted in the minutes. The report from Gary Phillips Property Services Pty Ltd was obtained as a result of this decision.

The rear fence is on the eastern boundary of scheme land and abuts a Council park. The body corporate is responsible to maintain this boundary fence in good condition. The applicant contends that the rear fence should be totally replaced. However, the applicant has not provided any evidence to support this view. The applicant has not shown that the condition of the fence has deteriorated to an extent that it is unstable, unsafe or beyond repair and requires replacement rather than repair, or that the body corporate has unreasonably refused not to maintain the fence.

On the material available to me, it would seem that the body corporate has given reasonable consideration, not only to the eastern fence, but to all fences which the body corporate is responsible to maintain. Firstly, the body corporate has acknowledged its responsibility for the maintenance of fences by accepting a sinking fund budget at its last Annual General Meeting, which contained provision for perimeter fencing. This budget is based on a sinking fund forecast prepared by Solutions in Engineering Pty Ltd and dated 4 December 1998. The report states, “The fencing is generally sound but some parts require repair.” Secondly, an EGM was held on 1 April 2000 to consider quotations to replace the rear fence or internal fences. Thirdly, while the body corporate did not accept a quotation to replace any fences, it did decide to bring in an independent person to assess the rear fence. The report from Gary Phillips Property Services Pty Ltd is consistent with the report from Solutions in Engineering Pty Ltd.

For these reasons, I have dismissed the order sought as I am not satisfied that the body corporate must replace the eastern fence to comply with its obligation to maintain the fence in good condition.

However, while the body corporate is not obliged to replace the eastern fence at this time, it must maintain those parts of this fence and other fences, which are not in a good condition (for example, fence palings which are not fixed to the railings, show signs of surface dry rot, or are broken). Therefore, the body corporate, either through its committee, or in general meeting should make appropriate decisions concerning the proper maintenance of both internal and external fences. Further, I am concerned that the gate post in the rear fence is held up by a star picket which is dangerously positioned outside scheme land. Without the star picket, the post would obviously be unstable. There are also implications for the body corporate insofar as public liability is concerned, if a person were to be walking in that area at night, and fall over the star picket, and injure themselves. I have therefore ordered that, within one month of the date of this order, the body corporate shall carry out the necessary work to properly stabilise the gate post which forms part of the eastern fence.
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