Silva Lake [2001] QBCCMCmr 30 (22 January 2001)

P G DanielsREFERENCE: 0560-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4380
Name of Scheme:	Silva Lake
Address of Scheme:	280 Christine Avenue Stephens QLD 4227

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

Angela Steele, the owner of lot 3, Vera Edwards, the owner of lot 4, Gavan Parker, the owner of lot 5 and D Parker, an occupier of lot 5



P G DanielsI hereby order that the application for the following orders:

That all owners and occupiers be required to abide by the rules and regulations and that no owner or occupier be permitted to perform any gardening on Body Corporate areas.

That a Horticulturist or Arboriculturist be engaged to assess the entire landscape, advise on most appropriate staged tree works and advise on sustainable revegetation proposals, as recommended by the Council.

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0560-2000

“Silva Lake” CTS 4380

The applicants, Angela Steele, the owner of lot 3, Vera Edwards, the owner of lot 4, Gavan Parker, the owner of lot 5 and D Parker an occupier of lot 5, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That all owners and occupiers be required to abide by the rules and regulations and that no owner or occupier be permitted to perform any gardening on Body Corporate areas.

That a Horticulturist or Arboriculturist be engaged to assess the entire landscape, advise on most appropriate staged tree works and advise on sustainable revegetation proposals, as recommended by the Council.

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)).

This application relates to owners performing gardening work on common property. The applicants seek an order that they discontinue gardening on the common property. Additionally, they seek an order that a horticulturist or arboriculturist be engaged.

It is undisputed that at least some owners and occupiers perform gardening work on the common property. The applicants claim that this has caused problems. In particular, they refer to the damage caused by trees and the cost of removing them.

I will give consideration to provisions in the By-laws and the Act and a resolution of the Body Corporate relating to this matter.

The by-laws for this scheme are those recorded in schedule 3 of the former Building Units and Group Titles Act 1980: see transitional sections 283 and 285 of the Act.

By-law 4 relates to gardening. It provides as follows:

Damage to lawns etc. on common property

4. A proprietor or occupier of a lot shall not—

(a) damage any lawn, garden, tree, shrub, plant or flower being part

of or situated upon common property; or

(b) except with the consent in writing of the body corporate, use for

his or her own purposes as a garden any portion of the common

property.

It is important to note that By-law 4 does not generally prohibit an owner or occupier from engaging in gardening work. It prevents damage being done to a common property lawn etc. Secondly, it prevents any portion of the common property being used as a personal garden without the written consent of the Body Corporate. Other than those specific matters, By-law 4 does not prohibit gardening work.

Sections 87 and 114 of the Act provides that a Body Corporate must administer, manage and control the common property. Those sections provide as follows:

Body corporate’s general functions

87.(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for

the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including the

by-laws affecting the common property); and

(c) carry out the other functions given to the body corporate under

this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under

subsection (1).

Body corporate’s duties about common property etc.

114.(1) The body corporate for a community titles scheme must—

(a) administer, manage and control the common property and body

corporate assets reasonably and for the benefit of lot owners; and

(b) comply with the obligations with regard to common property and

body corporate assets imposed under the regulation module

applying to the scheme.

(2) Nothing in this part, or in a regulation made under this part, stops—

(a) an item of personal property that is a body corporate asset from

becoming part of the common property because of its physical

incorporation with common property; or

(b) a part of common property from becoming a body corporate asset

because of its physical separation from common property.

The Body Corporate is also required to maintain the common property in good condition: section 109(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

The Body Corporate has previously considered the rights of owners in respect of common property gardens. It passed the following resolution at an annual general meeting on 24 August 1993:

“The matter of owners having use of gardens at rear and front of units for own use was discussed, and it was resolved that no objections be raised due to the body corporate being relieved of its obligation to maintain these areas.”

The resolution states that owners can “use” gardens without specifically indicating what may be done. I think the intent of the resolution is that maintenance work may be done so that the Body Corporate is relieved of doing the work. The second part of the resolution gives an indication to that effect. There is also substantial evidence in the application and submissions that indicates owners have relied on that interpretation of the resolution.

Gavan Parker states in his reply to submissions that the agenda for the meeting in 1993 did not contain a motion in respect of the above resolution, questions whether there is an inconsistency between the resolution and by-law 4 and considers the by-law ambiguous. The resolution has not been challenged in the very considerable period since it was made on the basis that the relevant motion was not on the agenda. That is not a ground to refuse to give effect to the resolution. If it were to be challenged by application, good reason would have to be shown to waive the requirement to bring the application within three months of the meeting: section 193 of the Act. I consider that an owner can perform gardening work in reliance on the resolution and not contravene by-law 4. I have considered the meaning of by-law 4 above. I have also discussed above the meaning of the resolution. Whilst the resolution is not entirely clear, I think it can be properly interpreted.

I note in this scheme that all owners have exclusive use to certain parts of the common property. Exclusive use by-laws have been registered. Owners must maintain those areas including any gardens within the areas. A maintenance duty is expressly provided in the exclusive use by-laws. However, I do not think that the above resolution is limited to exclusive use areas.

I will now consider the effect of the above provisions in respect of common property not covered by the exclusive use by-laws.

1. It is the Body Corporate that must maintain the common property gardens. The Body Corporate has allowed owners the right to maintain those parts of the common property gardens that are at the rear and front of their units. In my view, the Body Corporate can pass a resolution to that effect. It allows owners the pleasure of gardening and benefits the Body Corporate as it does not have to pay someone to perform the maintenance work.

However, I want to stress that maintenance does not include planting or removal of shrubs and trees. It means to keep in good condition the garden in its current state. The Body Corporate needs to approve any other work.

2. An owner must also ensure that he/she does not engage in gardening work such that there is a contravention of by-law 4. I have discussed by-law 4 above.

3. Additionally, an owner must not garden in common property areas not covered by the resolution discussed above. In those areas, an owner must obtain appropriate Body Corporate approval to do the work. There is evidence before me that this has previously occurred. For example, Dawn Griffiths has attached to her application minutes of a Committee meeting on 24 July 2000 that relevantly state, “Trimming approved at the back and around the pool all in favour.”

4. In areas not covered by the above resolution, the Body Corporate has a duty to maintain the common property garden. Additionally, if owners do not maintain gardens as allowed by the resolution, then the Body Corporate must undertake the maintenance work. I note the Body Corporate has engaged a service contractor to perform mowing and gardening work.

In light of my reasons above, I have decided not to make an order that owners and occupiers do no gardening work on the common property. In my view, such work is allowed provided owners and occupiers comply with what I have stated above.

I want to make clear that in making the above statements I am not judging the actions of owners who have previously performed gardening work on the common property. That has not been necessary to consider whether to make the orders as sought in the application. Additionally, I have not considered matters that were not related to the orders sought. For example, painting of car spaces. That is not a matter related to gardening.

I cannot make an order that a horticulturist or arboricultuist be engaged. The Body Corporate must consider that mater. If the Body Corporate considers the matter and an appropriate resolution is not passed, then an application can be made to an adjudicator to consider the matter.

I dismiss the application.