New Farm Gardens 578 [2002] QBCCMCmr 101 (22 February 2002)

DP GardinerREFERENCE: 0585-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6061
Name of Scheme:	New Farm Gardens 578
Address of Scheme:	578 Lower Bowen Terrace NEW FARM QLD 4005

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

Corporate


DP GardinerI hereby order that the application for an order that the owner of Lot 2 remove the illegally erected fence and restore the body corporate property to its original condition is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0585-2001

“New Farm Gardens 578” CTS 6061

The applicant Body Corporate for New Farm Gardens 578, the Body Corporate of lot all, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

“The Body Corporate requests that the owner of Lot 2 remove the illegally erected fence and restore the body corporate common property to its original condition.”

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)).

Section 223 (a) provides that an adjudicator may, if satisfied that the body corporate’s decision about a proposal by the owner of a lot to make improvements on, or changes to, common property is an unreasonable decision – order the body corporate:

(i) to reject the proposal; or

(ii) to agree to the proposal; or

(iii) to ratify the proposal on stated terms.

In the supporting grounds, the applicant states that the respondent contacted it regarding repairs to the courtyard fence claiming that it was falling down and that this statement serves to establish awareness on the part of the Respondent of the by-laws stating that the courtyard fences are the property of the body corporate and not the exclusive use and as such the responsibility of the lot owners to maintain.

The relevant facts as presently explained may be summarised as follows:

1.	By- laws 42 and 51respectively provide:

42.

A proprietor or occupier of a lot shall 2nnot construct or permit the construction or erection of any fence, pergola, screen, awning or other structure or outbuilding of any kind within or upon a lot or on common property without the approval in writing of the body corporate.

51.

The proprietor or occupier for the time being of each unit shall be entitled to the exclusive use and enjoyment of the courtyard with the same number as shown on the plan attached hereto and shall properly maintain the said courtyard and keep it in a state of good and serviceable repair.

2. Timber fence had previously been built to enclose the courtyards for all units of post, rail and single strand paling construction.

3.	The Respondent engaged a contractor who replaced existing hardwood timbers with pine with a second strand of palings being added, the repaired fence being painted yellow.

4.	Subsequently, the Body Corporate by letter dated 21st August 2001 advised of its intention to stain all the timber fencing surrounding the courtyards.

5.	By letter dated 14th November 2001, a licenced builder (Sam Stagnitti & Sons) certified that the fence as repaired was structurally sound.

There is no dispute that the fence required repair as the Applicant obtained quotes for the repair of the courtyard fence for Lot 2 before the Respondent carried out the work of which complaint is made. In my opinion, the work which was carried out represented a mixture of repair work and original work comprising the addition of a second strand of vertical panels.

Furthermore and in any event, the work which was performed on the Lot 2 fence inclusive of painting is capable of being described as work necessary to properly maintain the courtyard and to keep it in a good and serviceable repair.

In addition to the matters set out above, the order sought by the Applicant is not one that can practically be enforced as it would require the removal of all replacement and new timbers and the replacement of faulty timber removed as part of the repair work which has been carried out.

In the result, I consider that it would not be just and equitable to require the Respondent to remove the existing courtyard fence for Lot 2 which the Respondent must maintain in compliance with by-law 51 and further find that the decision of the Body Corporate not to approve the construction was and is unreasonable and consequently I ratify the proposal for the construction of the fence as described above which the Respondent is liable to maintain.