Noosa Close [2001] QBCCMCmr 91 (15 February 2001)

P J HanlyREFERENCE: 0613-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20169
Name of Scheme:	Noosa Close
Address of Scheme:	Tangmere Court and Sarah Court, NOOSA HEADS QLD 4567

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

Owen Albert POLLARD, the owner of Lot 23



P J HanlyI hereby order that the application by Owen Albert Pollard, the owner of Lot 23 for an order clarifying the responsibility for maintenance of boundary fences in a community titles scheme, is determined in accordance with the principles set out in the accompanying Statement of Adjudicator’s Reasons for Decision.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0613-2000

“Noosa Close” CTS 20169

The applicant, Owen Albert Pollard of Lot 23 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the BCCM Act”), quote -

I am seeking an order to make the Body Corporate fulfil its responsibility for the boundary fence of Group Titles Plan No 2841 by carrying out overdue work without further undue notice.

Section 223(1) of the BCCM 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 BCCM 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 from 1993 to 1999 it was generally understood that the condition of the boundary fencing was the responsibility of the body corporate. In support of his contention, Mr Pollard has provided a copy of a sinking fund forecast for the scheme dated 11 September 1998, the minutes of a committee meeting dated 7 December 1999 which notes “that funding for repair and replacement of the complete boundary fencing to the estate has been provided for through the sinking fund analysis and budgeting”, and a letter dated 18 August 2000 from the information service of the Commissioner’s Office which provides information on the general allocation of responsibility for the maintenance of a dividing fence.

A copy of the application was forwarded to the secretary for distribution to all owners (excluding the applicant) and to the committee. The chairperson, Mr Braine has submitted that some of the lots in the scheme have two fences, being a boundary fence and a second fence about 0.3 metres inside the boundary of each lot. In its submission, the committee states that boundary fencing was first included in the sinking fund budget accepted at the Annual General Meeting (“AGM”) dated 25 March 1999, and that the view taken at the AGM held on 11 April 2000 was that the body corporate was not responsible for the maintenance of boundary fencing. The committee has submitted that it feels that each lot owner is individually responsible for the maintenance of a boundary fence. It is the committee’s opinion that it would be unacceptable for the body corporate to be responsible for fencing maintenance unless “all owners receive an equal benefit”.

The basis of this application is the extent to which the body corporate is responsible for the maintenance of a boundary fence, being a fence between a lot included in the scheme and an adjoining parcel of land which is not part of the scheme. The purpose of this order is not to make a determination in respect to a particular fence within this scheme. Rather in this order, I have set out the principles to determine the responsibility for the maintenance of a boundary fence in a community titles scheme.

The Dividing Fences Act 1953 relates specifically to the construction and repair of dividing fences between certain lands. In this regard, section 258 of the BCCM Act provides:

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“Body corporate to be taken to be owner of parcel for certain Acts etc.

258.(1) The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts—

• Dividing Fences Act 1953

• Land Act 1994.

(2) For applying subsection (1) to a layered arrangement of community titles schemes, the body corporate for the principal scheme for the arrangement, and not the bodies corporate for the community titles schemes that are subsidiary schemes for the principal scheme, is taken to be the owner of scheme land for the principal scheme.

(3) However, for the Dividing Fences Act 1953, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land.

Examples—

A layered arrangement of community titles schemes consists of a principal scheme (“scheme A”) which in turn includes 2 basic schemes (“scheme B” and “scheme C”), and, of course, the common property for scheme A.

• If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme A and a lot (“lot X”) that is not scheme land for scheme A or another community titles scheme, the owners are the body corporate for scheme A and the registered owner of lot X.

• If a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land for scheme B and scheme land for scheme C, the owners are the body corporate for scheme B and the body corporate for scheme C. This will apply even if the length of boundary that is of concern happens also to be the boundary between a lot included in scheme B and a lot included in scheme C.

• If a matter under the Dividing Fences Act 1953 concerns a boundary between a lot (“lot Y”) included in scheme B and another lot (“lot Z”) included in scheme B, the owners are the owner of lot Y and the owner of lot Z.”

Under section 258, the body corporate is deemed to be the owner of the scheme land for the purposes of the Dividing Fences Act 1953. Therefore, if a matter under the Dividing Fences Act 1953 concerns a boundary between scheme land and adjoining land which is not part of the scheme, the owners are taken to be the body corporate and the owner of the adjoining land and any construction and repair of a dividing fence must be in accordance with the Dividing Fences Act 1953. As the deemed owner of the scheme land, the body corporate must make decisions in accordance with the BCCM Act to ensure compliance with the Dividing Fences Act 1953. As a consequence, the body corporate must recognise its maintenance obligation in this regard and budget for any relevant reasonable and necessary expenditure accordingly.

The committee is incorrect in contending that the body corporate’s maintenance obligation is subject to a rule that all owners must receive an equal benefit. The body corporate has an obligation to carry out the functions given to it under this Act. In addition, the committee have made mention of By-Law 36.1 and has correctly stated that a by-law cannot override an Act of Parliament. Section 142 of the Act provides that “If a by-law is inconsistent with this Act or another Act, the by-law is invalid to the extent of the inconsistency”. Therefore, By-Law 36.1 cannot be applied to the maintenance of a boundary fence for which the body corporate is either wholly or partly responsible under the provisions of section 258 of the BCCM Act.

As I stated earlier, I have not made a determination in respect of the maintenance of a specific boundary fence. However, the body corporate should, as a consequence of this order, recognise its maintenance responsibility in this regard and promptly attend to any necessary repairs to a fence or fences to ensure compliance with its obligations under the BCCM Act.