Istana View [2000] QBCCMCmr 80 (17 February 2000)

C G YOUNGREFERENCE: 0503-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22878
Name of Scheme:	ISTANA VIEW
Address of Scheme:	PO Box 7972, Bundall Qld Gold Coast Mail Centre, QLD 4217

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

C G YOUNGI hereby order that the application for an order that the owner of Lot 30 reinstate the tree, the tree guard and timber edging to their original position on the common property adjacent to the lot, is dismissed.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0503-1999

“ISTANA VIEW” CTS 22878

This is the final order to an application by the body corporate which sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

That the owner of Lot 30 reinstate the tree, tree guard and timber edging removed from common property without authority to its original location/condition and that the driveway constructed across common property (the positioning of which necessitated the tree removal) be appropriately relocated and common property restored.

The applicant also sought an interim order to stop construction of the driveway and on 16 September 1999 the following Interim Order 503-99 was issued, quote –

C G YOUNGI hereby order that the owner of Lot 30, Golden Island Pty Ltd as Trustee for The Peter Benson Family Trust, must immediately cease all driveway construction and other improvements work currently being carried out on common property, until a final order to the application is made, or proper authorisation of the body corporate is sooner obtained. 2n

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 “Statement of Adjudicator’s Reasons for Decision” to Interim Order 503-99 the facts of the dispute were set out, and some preliminary comments were made regarding the issue –

In the supporting grounds, the applicant states that the respondent owner has removed a tree from common property. The tree is one of a number of other equally-spaced trees forming a boulevarde as a feature of the scheme.

The respondent had previously sought the permission of the body corporate to relocate the tree. In its letter dated 28 July 1999, the committee informed the respondent that the request was not approved (a copy of this letter was forwarded with the application). A copy of the letter was also faxed to the respondent on 30 July 1999.

Despite the refusal, the respondent removed the tree on 10 August 1999 as part of the preparatory work to installing a driveway into the lot. That same day the respondent was advised by letter of the committee that the action of removing the tree, the tree guard and certain timber edging, all sited on common property, was in contravention of the legislation, and further, the work was to cease and the three items had to be reinstated (copy provided). The respondent has not complied with the requirements of the committee and the committee now makes this application, firstly for an interim order for the driveway construction work to cease, and secondly for a final order that the common property be restored to its formed state by the return of the tree, tree guard and edging.

While section 37 of the Act provides that owners share in the ownership of the common property as tenants-in-common, sections 87 and 114 of the Act provide that it is the duty and function of the body corporate to administer, manage and control the common property and any body corporate assets. The administrative arm of the body corporate is the committee which manages the day to day affairs of the body corporate.

The respondent was invited to make a submission to the application and did so by written submission dated 17 September 1999. The respondent submits that he was unaware he was unable to move the tree, but the layout of the house during construction showed where his garage and driveway were to be sited, being directly opposite the tree, yet the committee had not approached him on the matter. The respondent also states that the “boulevard” of trees does not have all of the trees equally spaced as claimed by the committee. The respondent offers that he has spoken with the owner of the opposite lot (Lot 13) who has agreed to move his tree to be in line with the respondent’s tree when again relocated but to a point some 2 metres north of his driveway.

To better understand the physical dimensions of the dispute and to provide an opportunity for the parties to put their views in the presence of each other, I arranged to meet the parties at the site of the dispute outside the respondent’s lot. On 1 November 1999 I met with the parties as arranged. I restated the respondent’s situation being that he had acted in defiance of the committee’s refusal for the tree to be removed, and had also acted in defiance of the interim order by completing the driveway after initially suspending work for some two weeks. The committee, on the other hand, had acted within the legislation in the decisions it had made and the action it had take.

Both parties kept to their stated positions, namely, the committee wanting the tree to be reinstated and the respondent wanting that the tree either remain or be relocated north of the driveway in concert with a relocation of the Lot 13 tree opposite. The respondent said that a sale of the lot had fallen through because of the dispute. However, despite their opposing views, both parties agreed that they would attempt to negotiate a settlement between themselves. I offered to delay the making of any order while the parties negotiated, on the basis that the applicant committee would contact me if there was no possibility of a settlement to ask that the matter proceed to an order.

That is now some 16 weeks ago and in that time there has been no contact by the applicant, either advising that a settlement has been reached or requesting that the matter proceed to an order. It is also now some 6 months since the interim order was made.

It is my opinion that in view of the delay in having this matter resolved, it would be unfair and inequitable for an order to be made against the respondent to reinstate the tree. Had the matter been something more serious than the location of a tree then perhaps I would have either reconvened a meeting of the parties or proceeded to make an order without consideration of the delay. Also, while I can understand the committee wanting to preserve the symmetry of the scheme, the relocation is hardly noticeable in upsetting that symmetry.

My order is therefore that the application is dismissed. However this is a decision made in the context of the circumstances prevailing in this particular dispute, and should not be regarded as to how similar disputes will be determined.2n