Blue Waters Caloundra [2001] QBCCMCmr 63 (8 February 2001)

P J HanlyREFERENCE: 0652-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6440
Name of Scheme:	Blue Waters Caloundra
Address of Scheme:	30 King Street, BUDEIM QLD 4556

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

Barry Joseph O’Brien and Dorothy Lorraine O’Brien, the co-owners of Lot 3



I hereby order that the application by Barry Joseph O’Brien and Dorothy Lorraine O’Brien, the co-owners of Lot 3, for an order that the body corporate remove trees from common property and in front of Lot 3, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0652-2000

“Blue Waters Caloundra” CTS 6440

The applicants, Barry Joseph O’Brien and Dorothy Lorraine O'Brien,, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the body corporate remove trees which are in front of their lot.

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 applicants state that the trees in front of Lot 3 substantially diminish their view and the value of their property. The applicants have included a number of photographs showing the impeded view from Lot 3 due to the trees. The applicants also included a copy of the minutes of an Extraordinary General Meeting dated 4 March 2000 where the trees and shrubs on common property were discussed under “Other Matters”. The minutes record that the owners present agreed that the trees and shrubs are only to be pruned or lopped with the approval of the committee. Also attached to the application are copies of a number of letters, including a letter to the Body Corporate Manager dated 2 August 2000 which requested that the gardener trim all dead branches on the palms and remove dead trees from the garden. 1yThe manager responded to the applicants by stating that the gardener had cleaned up the gardens at his direction, but has been informed by the committee that in the future the groundsman should not perform any extra work without prior reference to the committee.

A copy of the application was forwarded to the secretary for distribution to all owners (excluding the applicants) and to the committee. The owners of four lots made submissions objecting to the application primarily on the basis that the trees and shrubs on common property enhance the appearance of the scheme. These owners submit that it is reasonable for the body corporate to adopt an approach to regularly trim the trees and shrubs and remove any dead foliage. Mr Bick from Lot 2 raised concerns regarding the effect the trees have on the view from his property. However, he rejects any wholesale removal of trees and recommends a strategy to ensure there would be a “continuum of greenery”.

Section 114 (1) of the Act requires that the body corporate must “administer, manage and control the common property...reasonably and for the benefit of lot owners”. Section 109(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") provides that the body corporate must maintain the common property in good condition.

The general duty to act “for the benefit of lot owners” does not mean that all actions of the body corporate will be for the benefit of all lot owners; there are times when actions for the benefit of the majority will have to be followed even though it will mean an inconvenience or even a disadvantage to other owners. However, such an action cannot offend the right of an owner or occupier under section 129 of the Act to the use and enjoyment of a lot or common property without unreasonable interference. Each matter must be considered individually with regard to its own circumstances and the most equitable action taken in the interests of all owners.

In this instance, the trees and shrubs on common property do affect the view of not only the applicants but other owners as well, especially those occupying another ground level lot. However, the other owners have not sought the removal of trees and generally consider that the trees enhance the amenity of the scheme. These owners believe that a landscape maintenance program is appropriate in this regard. While the body corporate has considered the maintenance of the trees informally at the Extraordinary General Meeting dated 4 March 2000, it would seem that the committee recognises the body corporate’s duty to maintain common property, including trees, in good condition.

The applicants only claim to support the removal of the trees is that the trees adversely affect their view and consequently the value of their property. There is no statutory or common law right of a lot owner to a view. Therefore, a lot owner does not have the right to require the body corporate to prune or remove a tree solely on the basis that the tree interferes with their view. The effect a tree or trees may have on the view of a lot owner or owners may be a consideration for the body corporate in determining its duty under section 109(1) of the Standard Module. But a lot owner does not have the right to demand that the body corporate ensure that a view is preserved or restored.

I do not consider that the applicants have a specific interest in the trees but that all owners have an interest in maintaining the amenity of the scheme through appropriate landscaping. The removal or extensive lopping of the trees would adversely affect that amenity. Therefore, I consider that the body corporate has complied with its duty in respect to common property and I am not satisfied that the body corporate should remove trees in front of Lot 3. For these reasons I have dismissed the application.