Newport Harbour [2002] QBCCMCmr 234 (23 April 2002)

DP GardinerREFERENCE: 0023-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26444
Name of Scheme:	Newport Harbour
Address of Scheme:	156 Griffith Road SCARBOROUGH QLD 4020

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

Ms Lynne Sergeant, the Owner(s) of lot 28



DP GardinerI hereby order that the application for an order setting aside notices of continuing contravention of body corporate by-laws is dismissed.2n
I further order that the applicant comply with each of the notices of continuing contravention dated 9^th November 2001 by removing the clothes line, the orange webbing and the lattice screen within 14 days of the date hereof.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0023-2002

“Newport Harbour” CTS 26444

The applicant Ms Lynne Sergeant, the Owner(s) of lot 28, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“I wish to apply to have the decision of the body corporate overturned as being unreasonable.
I seek permission to continue growing jasmine on the lattice screen and retain the clothes line placement on the courtyard wall behind the lattice.
As the temporary fencing is only required until the fence is installed, it will not be onsite for long.”

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 applicant sets out in considerable detail the history of her discussions with the body corporate committee over these issues, including letters from the Developer and Kinlake Pty ltd. which state that in about August 1999 approval was given to the Applicant to construct a second screen.

I have carefully read all the submissions forwarded by the applicant and the respondent body corporate. Whilst I do not intend to refer to those submissions in any detail, I have given due regard to all the information that has been made available.

In light of the facts as presently explained, there is no doubt that the applicant did not obtain the approval of the body corporate before installing the clothes line or placing orange plastic webbing along a metal tubular fence panel. Approval was also not sought for the construction of the lattice panel on which the jasmine vine has been growing, although the body corporate committee has acceded to the installation of a lattice screen in light of the correspondence from the Developer and Kenlake Pty. Ltd., albeit one which is powder coated and of the standard of other lattice work on other parts of the scheme.


Relevantly, by-law 8 provides:

Appearance of Lot

• The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

• The occupier of a lot must not, without the body corporate’s written approval:

o Hang washing , bedding or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land.

As neither the clothes line or the presence of the plastic webbing have the approval of the body corporate, it is necessary to assess whether, in each case,:

• the change is minor.

• the change detracts from the amenity of the lot and its surrounds.

Having viewed the photographs provided along with the written information, I consider the changes are not minor and that they detract from the amenity of the lot and its surrounds,

Turning to the latticework, the body corporate committee has approved the installation of lattice on the basis set out above. As the lattice which has been installed is not minor and detracts from the amenity of the lot and its surrounds, I consider that the stance taken by the body corporate is correct in the circumstances, particularly as the body corporate committee has confirmed in writing its approval of a powder coated lattice screen of equal standard to other latticework on site.

Given the history of this matter and the refusal of the applicant to remove the orange webbing when it should have been obvious to the Applicant that its removal was required, I intend to order the removal of these items to ensure that this matter is finalised once and for all.

In the result, I dismiss the application and order the applicant to remove the existing lattice screen, the clothesline and the orange webbing as required by the notices of continuing contravention within 14 days of the date hereof.







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