Dorset Place [2001] QBCCMCmr 496 (6 September 2001)

RA MeekREFERENCE: 0342-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9928
Name of Scheme:	Dorset Place
Address of Scheme:	31 Dorset Street ASHGROVE QLD 4060

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

Valma Ryan & Ilse Logan, the owners of lots 4 and 2 respectively


RA MeekI hereby order that within two (2) months of the date of this order the body corporate shall engage Eager Elf Landscapes to undertake and complete the work the subject of motion 2(a) considered but not carried by the body corporate at the EGM held on 24 May 2001.

I further order that the body corporate secretary shall immediately issue a notice of special contribution to all owners to raise the amount necessary to meet the cost of payment for the work to be undertaken by Eager Elf Landscapes.

I further order that with the notice of special contribution to each owner, the body corporate shall include a copy of this order and reasons by way of explanation for the levy.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0342-2001

“Dorset Place” CTS 9928

The applicants Valma Ryan & Ilse Logan, the owners of lots 4 and 2 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Given that owners are required to maintain premises in a safe state of repair, application is made ... for assistance in the resolution of two problems ... the issues are

1.	Safe access to the clothesline at the rear of the premises which are accessed by negotiating the steeply sloping grassed yard;
2.	Replacement of the sleeper garden retainer which has rotted.

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)).

In the supporting grounds, the applicants state that –

Claim is made for priority to be given to safe clothesline access, as two owners have already incurred falls in this area due to wet grass on the sloping site. Other obstacles in the area include protruding concrete, large above ground section of mango tree root, seasonal mango crop falls which are cleared only 2 weekly by the mower service, periodic growth of tree limbs / branches to eye level ...

The removal of the mango tree and intended landscaping, has never been completed professionally, as the builder was compelled to sell urgently. ...

We make note that the advancing age of most users is a factor for consideration.

At a meeting on 24 May 2001, quotes obtained for the gradual stepping of the site and removal of obstacles were rejected by 3 owners (U3, 5 and 6), 1 owner (U1) didn’t lodge a vote and 2 owners (U2 and 4) wish to proceed with the work.

The proposal for levelling and concreting of the area of common property surrounding the two clotheslines together with terracing and concreting of paths leading to the clothesline area from both the front and rear of the lots (the applicant’s proposal) is a proposal by owners for improvement to the common property. Whilst the improvements are proposed by two of the owners, I consider that the proposal is not an improvement specifically for the benefit of the lots owned by the two proposing owners. For example, permission for a lot owner to install an air conditioner on common property to air condition a lot, would be strictly an improvement for the benefit of an owner under section 114 of the standard module. However, this proposal, whilst submitted by two owners, in fact has the ability to benefit all lots, although I acknowledge that some lots do not seek this benefit. To the extent that the proposal has the potential to benefit all lots, I consider that in a sense it is an improvement to common property under section 113 of the standard module. Sections 113 and 114 of the standard module provides as follows –
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Improvements to common property by body corporate—Act, s 121
113. The body corporate may make improvements to the common property if—
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount worked out by multiplying the number of lots included in the scheme by $250; or
(b) the improvements are authorised by special resolution;23 or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.

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Improvements to common property by lot owner—Act, s 121
114.(1) The body corporate may, if asked by the owner of a lot, authorize the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless—
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section 24 —
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

The motion in question read as follows –

That the owners of Dorset Place ... accept the attached quotation from Eager Elf Landscaping totalling $2025.00 for work as described and that the cost be met by the issuing of a Special Fund Levy of $338.00 NET per unit of lot entitlement.

There were two alternative quotes also submitted to the meeting, both of which were rejected by five “no” votes, with no votes in favour. I will make the point, although it is academic, that the motion in fact required a special and not an ordinary resolution.

I inspected the parcel to assess the matters raised in the application on Wednesday, 5 September 2001. Present at the inspection was one of the applicants, Ms Logan, the body corporate manager, John Rae, and an associate of Mr Rae who was also an occupier of a lot in the scheme. The four of us made a physical inspection of the scheme, in particular the rear common property clothes line area, and the side adjoining the garden with the rotted retaining wall.

Notwithstanding that submissions were sought from the body corporate and all owners in the scheme, no submission was received either from any owner opposed to the order sought, nor the body corporate. The body corporate manager did provide a copy of the relevant minutes of meeting and quote in question.

Given that no owner nor the body corporate has made submission opposing the application, or providing reasons why the order sought should not be made then all I have to go on is my own assessment of the reasonableness or otherwise of the applicant’s proposal, based on the statements made in the grounds, and my own physical inspection.

The only indication of why three owners rejected the applicant’s proposal was provided by the body corporate manager, Mr Rae who responded to me that he thought it was due to not wanting to expend funds on the applicant’s proposal, and further that the common property was like it is now when lots were purchased. I do not consider that either of these two reasons are a satisfactory basis per se for rejecting the applicant’s proposal.

Based on my own inspection, I conclude that the current state of the common property surrounding the clotheslines is potentially dangerous to users. I found the slope to be particularly so in that not only did it fall away, but did so at an angle such that it felt that no part of the ground was flat. I consider that if the ground was wet with dew or rain, and a person was carrying a washing basket, the potential for injury resulting from a fall would be magnified. The situation is made worse by the fact that not only is the ground uneven and sloping, but there are protruding objects in the area including raised concrete and one particularly large tree root. I conclude that the common property surrounding the clotheslines is dangerous and difficult to use. I have not been presented with any reasonable basis for why the applicant’s proposal should not be implemented. I do not consider that the cost per lot (one off of $338-00) to be particularly onerous. All persons who own property have to outlay money at various times to maintain, and at times, upgrade, that property. Moreover, I conclude that the implementation of the applicant’s proposal has the potential to benefit all lots. Even if not using the clotheslines, persons using the rear common property area will benefit from the improvement. Further, I consider there is jurisdiction for the making of this order under the terms of section 113(c) on the basis of health and safety factors.

I noted at the inspection that the Mango tree appeared to have been pruned, and not to be causing the difficulty as stated in the grounds. Ms Logan acknowledged that the tree had been pruned recently and was no longer the problem that it was when the application was made. I therefore decline to make any order in respect of the pruning of the Mango tree.

The further issue raised in the applicant’s grounds is the damage to the sleeper garden retainer wall on the higher side of the scheme. The applicants state that the wall “has rotted away for the majority of its length, a situation of many years standing and, understandably, not improving with time”.


I acknowledge that the retainer wall is rotted, and in need of replacement for approximately half of its length. However, given that I intend to order that the applicant’s proposal be implemented, I have determined that the further cost of $268 per lot should not be imposed on owners at this time. Whilst I consider that the retainer wall is in need of repair, it is not affected by white ants or any other circumstance which poses a danger to the common property. Yes, the retainer wall looks bad but this is about the extent of it. However, this is not to say that the repair of the retainer wall is not maintenance which will be required in the near future. What I suggest is that in its budget for the next financial year, the body corporate include an amount necessary to undertake this repair. If this is done, then the repair can be undertaken at some time during the next financial year. However, this is a suggestion and not an order.