MacGregor Court [2000] QBCCMCmr 512 (5 October 2000)

PJ HanlyREFERENCE: 0383-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20309
Name of Scheme:	MacGregor Court
Address of Scheme:	19 Delfin Drive MACGREGOR QLD 4109

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

Kenneth Rodney JOHNSON and Jennifer Irene JOHNSON, the co-owners of Lot 6



PJ HanlyI hereby order that the application by Kenneth Rodney JOHNSON and Jennifer Irene JOHNSON, the co-owners of Lot 6 for an order clarifying the responsibility for maintenance of fences in a community titles scheme, is determined in accordance with the principles set out in the accompanying Statement of Adjudicator’s Reasons for Decision.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0383-2000

“MacGregor Court” CTS 20309

The applicants, Kenneth and Jennifer Johnson of Lot 6 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

This application is submitted in order that clarification can be established as to whose responsibility it is to repair-construct-maintain perimeter fences. In particular the perimeter fence of Lot 6 (applicants) marked in green. Also are there any restrictions or prohibition on the type of fence that can be erected as a perimeter fence e.g. brick, timber, brush, metal etc.

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 applicants state that the brushwood perimeter fence requires repair, and as part of this fence bounds Lot 6, the applicants want to know their financial obligations. The applicants have included a plan of the complex indicating that the perimeter fence bounds ten of the fourteen lots.

A copy of the application was forwarded to the secretary for distribution to all members of the committee. In their responses to the application, the lot owners have variously stated:

•	That for three years, the replacement of the brushwood fence has been frustrated by disagreement within the body corporate concerning the allocation of responsibility and the choice of replacement material.
•	That there are different preferences as to the type of fence to be constructed.
•	That purchaser’s covenants included building guidelines, which state that galvanised iron and aluminium coated steel fencing is not permitted.

The applicants have sought a clarification on the allocation of responsibility to maintain perimeter fences and whether there are restrictions on the type of fence which can be constructed.

Firstly, the applicants have provided a plan indicating that a fence extends around a large portion of the boundary of scheme land, with another fence bounding lots and common property. While the Dividing Fences Act 1953 clarifies issues relating to liability, section 258 of the BCCM Act prescribes who is deemed to be the owner of a boundary fence in a community titles scheme:

ÿ

“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.”

Therefore, the body corporate is deemed to be the owner of the scheme land for the purposes of the Dividing Fences Act 1953 where a fence forms a boundary between scheme land and adjoining land which is not part of the scheme. Consequently, the body corporate is responsible, either partly or wholly for the maintenance of the boundary fence. In the situation where a fence forms a boundary between a lot and common property of the scheme the adjoining owners of the fence are the body corporate and the owner of the particular lot, and given normal circumstances, these parties are jointly responsible to maintain the fence.

The Dividing Fences Act 1953 makes provision for the construction and repair of dividing fences. Therefore, any repair to a dividing fence must be in accordance with this legislation. As the deemed owner of the land on which a boundary fence is located, the body corporate must make decisions in accordance with the BCCM Act to ensure compliance with the Dividing Fences Act 1953. I am of the view that a boundary fence on land, which the body corporate is deemed to own for the purposes of the Dividing Fences Act 1953, should be treated as common property for any consideration relating to the maintenance of that fence. Therefore, the body corporate has an obligation to maintain the fence in good condition subject to the provisions of sections 103 and 104 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Secondly, the applicants have sought clarification concerning the type of fence which can be constructed. Neither the Act nor the Standard Module prescribes restrictions or prohibitions on the type of fence which can be constructed in a community titles scheme. However, the body corporate must consider the implications of section 113 of the Standard Module if there is a proposal to replace an existing fence. In this circumstance, the body corporate must consider if the replacement material constitutes maintenance or improvement. A simple example of a fence replacement constituting maintenance is where an existing defective fence (which cannot practically be repaired) is replaced with materials of similar quality and characteristics. However, any determination regarding this issue can be complicated if the use of a similar material is no longer viable due to factors such as cost and the availability of replacement materials. I am aware that there are a number of lot owners who prefer a fence constructed with colour bond to the existing fence made of brushwood. It would seem that some owners feel that maintenance of the existing fence is not a viable option while other owners consider that this fence could be repaired. While I am not prepared to make a decision concerning this issue, I consider that the body corporate is not constrained by any building covenants which may have been contained in an agreement with the original owner to purchase a lot in this scheme. The covenants in an executed purchase agreement bind the two parties (the vendor and the purchaser) who are subject to that agreement. The covenants do not apply to the body corporate and cannot be read to be binding on the body corporate. Any covenant concerning fencing relates to the lot that is being purchased, and does not relate to fencing constructed by the original owner and which is deemed to be owned by the body corporate.