Daniells Terraces [2002] QBCCMCmr 286 (10 May 2002)

M.F.MorganREFERENCE: 0072-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4489
Name of Scheme:	Daniells Terraces
Address of Scheme:	47 Daniells Street CARINA QLD 4152

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

Mr Mark John Wankiewicz, the Owner(s) of lot 2

M.F.MorganI hereby order that the application for an order that:

“The respondent be instructed to:

1. Replace the Grevillia that has died as a result of his heavy-handed pruning between lots 2 & 3.

2. Remove from the area all branches left on the ground after his last pruning between lots 2 and 3.

3. Desist from pruning or interfering with any plants on the common property.

The body corporate gardener will be instructed to perform the following work in the common property between lots 2 & 3:

1. With the exception of the Golden Cane Palm, the plants will be pruned to form a hedge to a height of 1.8 metres, the plants be pruned on their eastern side to form a plane 1.2 metres from lot 3, and the plants be pruned on their western side to form a plane with the retaining wall.

2. The Golden Cane palm will be left alone, apart from having dead fronds removed

3. All weeds and grass will be removed from the area so that the Mondo Grass has a chance to recover and spread.

4. Vines growing over the fence on the northern side will be removed.

5. Branches protruding into the common property from lots 2 & 3 will be removed at the boundary”

Is dismissed.



I further order the strategic placement within three months from the date of this order and subsequent maintenance by the Body Corporate of suitable shrubs in the common property garden area located between lots 2 & 3. These shrubs are to be properly maintained to become of a sufficient density so as to overcome the applicant’s reasonable concerns about the impact of the reflective film on the window on the western side of the lounge room of lot 3. This requirement shall cease to have effect if the Body Corporate approves another solution to overcome the reasonable concerns of the owner of lot 2, such as the installation of external louvres identical to those installed onto the western window of lot 1.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0072-2002

“Daniells Terraces” CTS 4489

The applicant Mr Mark John Wankiewicz, the Owner(s) of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the respondent be instructed to :

1. Replace the Grevillia that has died as a result of his heavy-handed pruning between lots 2 & 3.

2. Remove from the area all branches left on the ground after his last pruning between lots 2 and 3.

3. Desist from pruning or interfering with any plants on the common property.

The body corporate gardener will be instructed to perform the following work in the common property between lots 2 & 3:

1. With the exception of the Golden Cane Palm, the plants will be pruned to form a hedge to a height of 1.8 metres, the plants be pruned on their eastern side to form a plane 1.2 metres from lot 3, and the plants be pruned on their western side to form a plane with the retaining wall.

2. The Golden Cane palm will be left alone, apart from having dead fronds removed

3. All weeds and grass will be removed from the area so that the Mondo Grass has a chance to recover and spread.

4. Vines growing over the fence on the northern side will be removed.

5. Branches protruding into the common property from lots 2 & 3 will be removed at the boundary.

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)).

The owner of lot 3 has installed a reflective film on his windows, which the applicant asserts affects his amenity from “mid-afternoon to sundown”.

In supporting grounds for the orders sought, the applicant maintains, amongst other things, that the “heavy handed pruning” by the respondent detracts from the provision of a protective shield from the reflective film, between the lots. The applicant contends that the respondent is damaging common property; that it is the gardener’s job to prune; and that the ‘mess in the area’ is a result of the actions of the respondent.

The respondent states that the grevillea had all but died off over 12 months ago; that there are other plants being taller which provide more screening to the applicant’s window than the Grevillea. He further states that neither the Act, associated regulations or by-laws (which only mention damage) preclude owners from pruning and maintaining plants on common property as various owners, including the applicant, have done.

The applicant has made multiple allegations regarding the conduct and actions of the respondent in this matter, which the respondent has disputed.

Having read the application and submissions, there is, in my view, insufficient evidence before me, from which I can make a finding that the Grevillia has died as a result of the heavy-handed pruning of the respondent. Also, there is insufficient evidence for me to make any finding that the respondent has caused ‘damage’ to the common property by his pruning.

Also I am unable to make an adverse finding against anyone on the evidence before me, which would substantiate the orders sought by the applicant. Further to make an adverse finding would only exacerbate the long-standing difficulties between the parties.

Also it would appear that the offending vines growing over the fence on the northern side have been removed. Further since making the application, the applicant advised in letter dated 25 February 2002, that the gardener has done significant work which “effectively destroyed evidence that would have otherwise supported my claims”. The applicant advises, “The result is that our property is tidier than it has been in literally years”. There is little point in making an order to deal with this aspect.

For these reasons I have dismissed the application that the respondent be instructed to

• Replace the Grevillia that has died as a result of his heavy-handed pruning between lots 2 & 3.

• Remove from the area all branches left on the ground after his last pruning between lots 2 and 3.

• Desist from pruning or interfering with any plants on the common property.

But it seems to me that the principal cause of the long-standing ill feeling between the applicant and the respondent is the impact of the reflective film.

Order Reference no. 293-96 which issued on 29 October 1996, noted that the applicant’s concern regarding the window tinting could be almost completely overcome by the strategic placement of a shrub or shrubs in the common property garden area located between the two lots. For this reason, it was ordered that a tree or shrub, be planted, being either a mock orange or a lilly pilly, in the common property garden area, between both lots.

The spirit of the order made on 29 October 1996 supported the provision of a protective screen between lots 2 & 3.

Also the respondent considers that a 1.5m high box shape hedge or similar would screen any reflection that did exist.

The applicant has conceded that if a dense box shaped hedge did exist, then reasonable screening would be provided. The applicant states that the request for increased pruning height of 1.8 metres is based on his belief that with additional height the plants will spread more laterally. The applicant states that he does not support the construction of a fence on top of the retaining wall, or the installation of a roller blind. However, he would support installation of external louvres identical to those installed onto the western window of lot 1.

Whilst I have dismissed the application, I consider that the Body Corporate should ensure the strategic placement and maintenance of shrubs in the common property garden area located between lots 2 & 3. These shrubs are to be properly maintained to become of a sufficient density so as to overcome the applicant’s reasonable concerns about the impact of the reflective film of the window. Provided that this shrubbery is sufficiently dense then there is no need that it is to a height exceeding 1.5 metres. This requirement shall cease to have effect if the Body Corporate approves another solution to overcome the applicant’s reasonable concerns such as the installation of external louvres identical to those installed onto the western window of lot 1.

Because of previous difficulties, the applicant has also specifically requested that multiple specified instructions be provided to the body corporate gardener namely that:

“The body corporate gardener will be instructed to perform the following work in the common property between lots 2 & 3:

• With the exception of the Golden Cane Palm, the plants will be pruned to form a hedge to a height of 1.8 metres, the plants be pruned on their eastern side to form a plane 1.2 metres from lot 3, and the plants be pruned on their western side to form a plane with the retaining wall.

• The Golden Cane palm will be left alone, apart from having dead fronds removed

• All weeds and grass will be removed from the area so that the Mondo Grass has a chance to recover and spread.

• Vines growing over the fence on the northern side will be removed.

• Branches protruding into the common property from lots 2 & 3 will be removed at the boundary.”

In relation to this request I would like to take the opportunity to comment on the role of the Body Corporate.

Daniells Terraces was created in 1991 under Building Units and Group Titles Act 1980.

Since this time, and since order no. 293-96 which was made on 29 October 1996, the Body Corporate and Community Management Act 1997 has commenced which represents a new approach to that previously conducted.

The Body Corporate has the power and the duty to manage and control the use, occupation and dealing with the common property (see section 87 (1)(a) and section 114 of the Act).

Also, the primary object of the Act is to provide for flexible and contemporary communally based arrangements (see section 5 of the Act). One of the secondary objectives is the balancing the rights of individuals with responsibility for self-management. Except for unanimous resolutions, a community is bound by an appropriately passed resolution of a body corporate even if sometimes not all owners agree.

Having regard to:

• the primary and secondary objects of the Act which herald self management and community based arrangements,

• the vines growing over the fence on the northern side have been removed

• there is not sufficient evidence of unlawful or unreasonable behaviour

• it is proposed to create an order casting a positive duty on the body corporate to strategically place and maintain shrubs to overcome the applicant’s reasonable concerns,

I consider that it is premature for me to usurp the role, powers and duties of the Body Corporate and make a detailed order instructing the body corporate gardener without giving the Body Corporate the opportunity to consider what these instructions should be, in the first instance.

The Body Corporate has previously resolved that the golden cane palm is to be removed. I do not consider that this offends section 57(2) of the Standard Module and I do not consider I have any grounds to usurp the Body Corporate decision about this matter.

For these reasons I also propose to dismiss the second aspect of the applicant’s application.

Finally I note that in his submission dated 27 March 2002 the applicant responded to a number of issues and also seeks a number of orders that were not the subject of the original application. If the respondent wishes to seek orders to resolve particular issues, then he should lodge a fresh application. This would then allow all affected parties a full opportunity to respond to the application. The further orders sought will not be considered in the course of this order.





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