Dutton View [2002] QBCCMCmr 317 (22 May 2002)

DP GardinerREFERENCE: 0156-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22644
Name of Scheme:	Dutton View
Address of Scheme:	81-83 Dutton Street COOLANGATTA QLD 4225

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

Mr Douglas and Mrs Christine Edgecombe, the Owner(s) of lot 2



DP GardinerI hereby order that the respondents remove at their cost the improvements constructed by them which encroach upon the common property delineated on the copy of group titles plan no. 105165 which is annexed to this order and marked with the letter “ A”.


The above order was appealed to the District Court, Brisbane. On 3 March 2003 Judge Samios, delivered the following order:

“THE ORDER OF THE COURT IS THAT:

1.	The appeal be dismissed.
2.	The order made by the adjudicator on 22 May 2002 be confirmed.
3.	The Appellant pay the Respondent’s costs of the appeal to be assessed on an indemnity basis.”

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0156-2002

“Dutton View” CTS 22644

The applicants Mr Douglas and Mrs Christine Edgecombe, the Owner(s) of lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“We request Mr & Mrs Todd, the owners of lot 1-

1. move the dividing fence between their property and the common property ( the driveway ) back to the correct position – 1.02 meters back – refer photos 1A & 1B.

2. Shorten the dividing fence between their property (lot 1) and our property ( lot 2) by 1.02 metres to the correct position.- refer photos 2A & 2

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)).

I have read the submission from the respondents. There is no dispute that the improvements extend beyond the common boundary of the common property and the southernmost part of lot 1 and encroach to a significant extent upon the common property.

The applicants calculate the width of the encroachment as 1.02 metres. The respondents calculate the total area of the encroachment as being 19.5 square metres.

I note from the group titles plan is depicted as having a length of 25.73 metres and a width of 4.5 metres. An encroachment of some 1.02 metres reduces the width of the common property which provides vehicular access to both lots which are the only lots in the scheme to some 3.48 metres which severely limits the amenity of the common property, particularly for any vehicles greater in size than ordinary motor vehicles, especially with regard to turning space and manoeuvrability.

The solution proposed by the respondents is either a grant of exclusive use of the area of the encroachment or alternatively the purchase of this area from the body corporate. Neither of these proposals are acceptable to the applicants so there is no point in pursuing either proposal any further as the opposition of the applicants is fatal to those ideas being implemented regardless of other problems which are inherent in these proposals which do not merit further discussion in the context of this adjudication.

Regardless of whether the encroachment occurred accidentally or not, the point is that a significant encroachment has taken place through no fault of the applicants. The respondents have gained an appreciable benefit to the detriment of the applicants. Whilst it is appreciated that the improvements constructed by the respondents comprise pool fencing, a retaining wall, concrete living area and fencing, whatever proportion of those improvements are located on the encroaching section is the responsibility of the respondents and a direct result of an error on their part.

Before improvements may be built on common property, the prior authorisation of the body corporate is required pursuant to section 114 of the Body Corporate and Community Management Act (Standard Module) Regulation 1997. No such authorisation has been given.

As a result, the only order that is appropriate in the circumstances is that the respondents remove those improvements which encroach upon the common property within 30 days of the date of this order. In the event that the respondents fail to do so, the body corporate may carry out the removal of those improvements which encroach upon the common property and recover the cost of so doing from the respondents (see section 123 of the Body Corporate and Community Management Act 1997 and section 121 of the Body Corporate and Community Management (Standard Module) Regulation 1997).



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