Weemilah [2001] QBCCMCmr 376 (11 July 2001)

P J HanlyREFERENCE: 0225-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19988
Name of Scheme:	Weemilah
Address of Scheme:	1-3 Paul Court CARRARA QLD 4211

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

Marie Rose Harrison, the owner of lot 10



P J HanlyI hereby order that the application for an order that tree cuttings be removed from the common property is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0225-2001

“Weemilah” CTS 19988

The applicant, Marie Rose Harrison, the Owner of Lot 10, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking to have all that was cut off the trees removed from the body corporate ground. I believe that there are no trees or plants that need or benefit from the tree cuttings. To leave them may cause a great deal of damage to property. Should a fire occur at night, then it may also involve human life.

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 applicant states that, after having been told some time ago by the present gardener for the scheme that the trees in front of the units would be cut down to a more suitable height, she arrived home from work one day in March to find that the whole area, which consists of a total of seventy-seven trees, had all been cut down to the same height. Further, the tree cuttings had themselves been cut up and scattered all along the common property, right up to the fence line. The applicant is concerned about the potential fire hazard this creates.

The applicant raises numerous additional issues in her grounds, such as the committee’s direction to her to remove certain trees which she allegedly planted on the common property, concerns about the body corporate gardener and the maintenance of the common property garden in front of her unit, however she has not sought any orders in relation to these matters. I have therefore confined my consideration of the grounds supplied to those matters relevant to the order sought.

Submissions in response to the application were sought from the committee. A submission was received from the body corporate manager on behalf of the committee. The submission opposes the application on grounds that can be relevantly summarised as follows:

• The pruning of the trees was authorised by the committee as part of the body corporate’s routine grounds maintenance program as they had grown to a significant height and presented a danger, both in respect of fire and damage to unit buildings caused by falling branches.

• It is common and accepted practice that lopped tree branches be mulched and spread around gardens, both for the practical purpose of retarding weed growth, thus saving costs, and also for aesthetic purposes. In authorising this to be done, the committee took advice from its grounds maintenance contractor who is a resident in the complex and is undertaking horticultural studies.

• Other than voicing her own opinion, the applicant has not demonstrated any evidence that mulch from lopped tree branches represents a fire or health hazard.

• Apart from the applicant, the committee has received no complaints in relation to this matter.

“Weemilah” was registered as a Group Titles Plan (now known as a Standard Format Plan) under the Building Units and Group Titles Act 1980 (BUGTA) on 30 July 1992. The area on which the trees in question are located is clearly designated as common property on the plans registered with the Titles Office.

Section 114 of the Act provides that the body corporate must administer, manage and control the common property reasonably and for the benefits of owners. Section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (which is the applicable regulation module for this scheme), provides that the body corporate must maintain common property in good condition.

An inspector from this office inspected the common property gardens in question on Tuesday 10 July 2001 and took photographs. From the photographs, it appears that the common property gardens are well maintained and in a clean and tidy condition. The “tree cuttings” that the applicant complains of appear to have been mulched and used as such in the gardens. I accept the committee’s assertion that this is a standard gardening practice. I do not consider that this mulch poses any more serious a threat of fire danger than some other forms of garden mulch, such as bark.

I find nothing in the material before me to demonstrate that the body corporate has failed in its responsibilities to maintain the common property in good condition and to administer, manage and control it reasonably and for the benefit of owners.

I have dismissed this application.





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