Jo Mar El Court [2000] QBCCMCmr 82 (17 February 2000)

P G DanielsREFERENCE: 0660-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24475
Name of Scheme:	Jo Mar El Court
Address of Scheme:	70 Barker Street NEW FARM QLD 4005

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

Ms Mary Joseph the owner of lot 7

P G DanielsI hereby order that the application for an order that:

The offending fences be removed at the owners’ expense. Should the owners wish to construct some other means of enclosure I request that due process be observed and approval sought through the Body Corporate.

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0660-1999

“Jo Mar El Court” CTS 24475

The applicant, Ms Mary Joseph, the owner of lot 7, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

The offending fences be removed at the owners’ expense. Should the owners wish to construct some other means of enclosure I request that due process be observed and approval sought through the Body Corporate.

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 owners of lots 1 and 2 are the respondents to this application. They have exclusive use to separate common property areas in front of their units that are described in the By-laws as courtyards.

The exclusive use By-law grants the following right to the respondents in respect of both areas:

“...that they be given permission to enclose the area with a fence which is compatible with the general development.”

The by-laws came into operation on the recording of a new community management statement in 1999.

The respondents constructed wooden fences that enclose the courtyards. The applicant makes the following complaint about the fences:

“The fence itself is ugly and defaces the whole façade of the building and is out of proportion to the rest of the building. It is totally out of character both in material and design with the heritage and style of the building and is not sympathetic with the adjoining buildings and the streetscape as a whole."

The applicant has the support of other owners and neighbours as revealed by petition like documents that were submitted. The applicant seeks an order that the fences be removed.

The first point that needs to be made in the resolution of this dispute is that the exclusive use By-law with the permission to erect a fence is a valid By-law. Section 124 of the Body Corporate and Community Management (Standard Module) Regulation 1997 allows such a permission to be included by providing as follows:

ú

Improvements—Act, s 136

124.(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.

(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.

The respondents did not need the approval of the Body Corporate to erect the fences as approval was already granted by the By-law.

However, it was necessary for the owners to comply with the requirement that the fences be compatible with the general development.

The real issue raised in this application is whether the fences are compatible with the general development.

It is difficult to define what is meant by general development. Is it limited to the scheme itself or the general area where the scheme is located? In my view it relates to the general area of which the scheme forms a part. This is the interpretation that the respondents have adopted in their submission.

The respondents indicate in their submission a number of matters they took into account prior to construction of the fences. They relevantly state:

“However, prior to constructing the fences we also considered the following design components (in consultation with an interior designer assisting with the units);

® the building is a 1960’s cavity brick building and accordingly it was difficult to find an obvious fencing material. However, a metal or rendered fence would look out of character.

® the four main trees and as much of the existing landscaping should be maintained.

® Raw timber fences are predominant in the street itself and the surrounding New Farm area (please see attached photo-library of Barker Street residences and surrounding area).

® The courtyard fence must provide the occupants of Lots 1 & 2 with the elements of privacy and security”

There are two other matters that are relevantly raised in the submission. Firstly, they chose a height of 1.8 metres to give them privacy and security whilst not choosing a greater height that may have been “imposing and inappropriate”. Secondly, they have planted Jazzman creepers around the perimeters of the fences that will cover them.

Photographs of the fences have been supplied by both the applicant and the respondents. The applicant supplied a photograph showing how the scheme land and building appeared before the fences were constructed. It is an old photograph. Additionally, the respondents have supplied photographs of other properties in the New Farm area where this scheme is located.

These photographs have given me a good impression of how the fences have changed the appearance of the building and land and the appearance of the fences in the context of the New Farm area. The features of the fences that are most striking are their height and bare appearance. They are quite high given the height of the building on the scheme land. It seems to me that their bare appearance is intensified by their colour which tends to make them stand out more from the scheme building and land.

The respondents state that the fences are 1.8 metres high whereas the applicants state they are 1.9 metres. The difference is small and in any event I have photographs where I can properly assess the height in the context of the scheme land and building. In my view the height is acceptable. One of the main reasons for constructing the fences is to give privacy to persons in the courtyard. In my view the height of the fences achieves this goal without being too high. In this regard I have taken into account that there is a bus stop outside the scheme land.

In respect of the bare nature and colour of the fences, the respondents state that they have planted Jazzman creepers that should cover them. In my view this is an acceptable way to improve the appearance of the fences.

I have examined the other photographs provided by the respondents in their submission. They show that wooden fences are used throughout New Farm. Many of these fences are quite tall. I accept that the wooden fences in this case are compatible with the general development in the New Farm area.

I dismiss the application.