Cleveland Mews [2000] QBCCMCmr 45 (3 February 2000)

RA MeekREFERENCE: 0624-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20470
Name of Scheme:	Cleveland Mews
Address of Scheme:	84/88 Wynyard Street CLEVELAND QLD 4163

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

Gladys Mary Hansen, the owner of lot 19

RA MeekI hereby order that the application by Gladys Mary Hansen, the owner of lot 19 for an order clarifying the responsibility for maintenance (painting) of fences in a standard format plan scheme, is determined in accordance with the principles set out in the accompanying Statement of Adjudicator’s Reasons for Decision. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0624-1999

“Cleveland Mews” CTS 20470

The applicant Gladys Mary Hansen, the owner of lot 19, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) clarifying the responsibility for maintenance (painting) of fences in a standard format plan scheme.

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 states that –

I was advised that I am responsible for the upkeep on everything inside my unit and fence, and from the fence out onto the common property including the outside of the fence belonged to the body corporate. That was until the body corporate decided to paint the fences outside and now I am being charged $98 for half the cost of job. I already painted the inside which I believe I own and now this, half the cost of outside. This is unjust.

Essentially the applicant believes that the inside of the fence is her responsibility, and the outside is the responsibility of the body corporate, who should not seek to charge her half the cost of painting the outside of the fence.

The applicant also makes some disparaging remarks regarding the operation of the committee. These remarks are refuted by the chairperson / secretary of the committee, and I don’t intend to consider these aspects further. This application is about the responsibility for maintenance of the fence, not difficulties the applicant might consider exists with the committee.

The chairperson of the committee states in his submission that –

I had a meeting with an Officer of your Department in August 1998 and at that meeting I tabled a letter and accompanying plans of “Cleveland Mews” to enable discussion to take place regarding painting of boundary fences, etc. Your Department’s letter ... dated 1 September 1998 was sent to me in response to that meeting. The second last paragraph of that letter clearly defined that the fence came under the Dividing Fences Act of 1953.

I am therefore of the opinion that the owners of the various units and the body corporate are equally responsible for the painting of the outside of those fences. This is based on the fact that none of the fences were painted originally, but the body corporate then in existence, authorised the painting of the outside of these fences only and this action was followed by this committee. The painting of the inside of those fences has become the responsibility of the various owners some of whom did paint the inside of their fences and others did not.

The chairperson is right in stating that the Dividing Fences Act is relevant to the determination of this matter. However that relevance is somewhat limited. Section 258 of the Act states as follows –

ú
Body corporate to be taken to be owner of parcel for certain Acts etc.
258.(1) The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts—
 Dividing Fences Act 1953
 Land Act 1994.
(2) For applying subsection (1) to a layered arrangement of community titles schemes, the body corporate for the principal scheme for the arrangement, and not the bodies corporate for the community titles schemes that are subsidiary schemes for the principal scheme, is taken to be the owner of scheme land for the principal scheme.
(3) However, for the Dividing Fences Act 1953, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land.

Examples—

A layered arrangement of community titles schemes consists of a principal scheme (“scheme A”) which in turn includes 2 basic schemes (“scheme B” and “scheme C”), and, of course, the common property for scheme A.
 If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme A and a lot (“lot X”) that is not scheme land for scheme A or another community titles scheme, the owners are the body corporate for scheme A and the registered owner of lot X.
 If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme B and scheme land for scheme C, the owners are the body corporate for scheme B and the body corporate for scheme C. This will apply even if the length of boundary that is of concern happens also to be the boundary between a lot included in scheme B and a lot included in scheme C.
 If a matter under the Dividing Fences Act 1953 concerns a boundary between a lot (“lot Y”) included in scheme B and another lot (“lot Z”) included in scheme B, the owners are the owner of lot Y and the owner of lot Z.

Section 15 of the Dividing Fences Act 1953 provides as follows –

Liability of adjoining owners to repair

Subject to section 16 whenever any existing dividing fence is out of repair the owners of land on either side thereof shall be liable to join in or contribute to the repair of such fence in equal proportions.

This section requires that adjoining owners maintain an existing fence. Section 258 of the Act then clarifies who is deemed to be the owner of an adjoining fence. I consider there are three possible scenarios in a standard format plan (formerly a group title plan) scheme. These are as follows –

1.	Where a fence forms a boundary with common property of the scheme;
2.	Where a fence forms a boundary with an adjoining lot in the scheme;
3.	Where a fence forms a boundary with adjoining land not part of the scheme.

I will consider each of these three scenarios in turn.

Where a fence forms a boundary with common property of the scheme

In this scenario, the adjoining owners of the fence are the body corporate and the owner of the particular lot. These parties are jointly responsible to maintain the fence. I suggest that in this circumstance, the adjoining owners should agree on the repairs required to the fence, and then have those repairs carried out, and contribute to the cost of such repairs equally.

Where a fence forms a boundary with an adjoining lot in the scheme

This is the scenario envisaged in section 258(3) of the Act. The owners of the fence are the two owners of the adjoining lots. Again I suggests that the adjoining lot owners should agree on the repairs required to the fence, and then have those repairs carried out, and contribute to the cost of such repairs equally.

Where a fence forms a boundary with adjoining land not part of the scheme

This final scenario is somewhat different. Technically the adjoining owners are potentially the individual lot owner and an adjoining owner of land which is not part of the scheme. Alternatively, the adjoining owners might be the body corporate and an adjoining owner of land which is not part of the scheme. Section 258 provides that notwithstanding which alternative scenario applies, the body corporate is deemed to be the owner of the scheme land for the purposes of the Dividing Fences Act 1953. This means that the body corporate is responsible jointly with the adjoining owner of non-scheme land for the maintenance of the fence.

In the current application, I have no real indication from the applicant of the location of the fence in question, so I cannot determine specifically which of the above scenarios applies. Consequently, I will leave it to the parties to determine this based on the principles I have set out. n