Alexandra Villas [2002] QBCCMCmr 349 (31 May 2002)

DP GardinerREFERENCE: 0154-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20451
Name of Scheme:	Alexandra Villas
Address of Scheme:	47 Windmere Road ALEXANDRA HILLS QLD 4161

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

Corporate


DP GardinerI hereby :

1. declare that an easement exists in favour of lot 6 and against lot 5.

2. declare that the gateway in the fence between lots 5 and 6 provides access between these lots.

3. order the respondent as the owner of lot 5 to remove any impediment to the use of the gateway for purposes of access.

4. order the respondent as the owner of lot 5 to do all things necessary to permit usage of the gateway as a means of access between lots 5 and 6, including access from common property to lot 5

5. declare that, for the purposes of carrying these orders and declarations into effect, the location of each of the gates referred to are depicted as accurately as possible on the plan annexed hereto.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0154-2002

“Alexandra Villas” CTS 20451

The applicant Body Corporate for Alexandra Villas, Lots All Lots, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
“That Mrs.Minton remove the boards which her son attached to the gateway and fence between Lots 5 and 6 and to refrain from closing that gateway in future and to allow the grounds maintenance contractor access to Lot 6 via that gate.”

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 states:

The courtyards for ten of the fourteen lots in this scheme have direct access to or from the common property. The remaining four lots have access to the common property via a gateway to an adjoining lot.

We believe these gates serve a dual purpose:

1.	to allow the grounds maintenance contractor access.
2.	to be an alternate exit in the eventbof a fire or other emergency.

On 19 February 2000, Mrs. J. Minton, without consultation with her neighbours, Mr. & Mrs. G. Samuels the owners of Lot 6, had her son board up the gateway between Lots 5 & 6 so it ios closed permanently.

This action by Mrs. Minton, the owner of lot 5, means that the owners of Lot 6 are denied access for service by the gardener, except if he accesses Lot 6 courtyard through their garage which is a most unsatisfactory and inconvenient arrangement. Also, should they be absent for a lengthy period, the contractor is unable to access lot 6 courtyard during that time.

The body corporate committee, at its last meeting, discussed this matter and are unanimous in their opinion, that Mrs. Minton is in breach of the Body Corporate and Community Management Act 1997 by her action. We believe that an easement exists under section 61 for the supply of utility services to Lot 6, ie access by the grounds maintenance contractor. At that meeting, Mrs. Minton was asked to remove the boards from the gateway and she refused to do so.

In an effort to resolve this matter, Mr. & Mrs. Shellard the owners of Lot 11 submitted a motion for the annual general meeting which was held on the 28^th January 2002. Mrs. Minton who was chairperson at the time ruled the motion out of order. The current committee consider that this was done without good reason.

There has never been any problem with the gates between Lots 8&7,9&10 or 14&13 and we consider it only fair that the order be made.

Submissions received from other owners apart from Mrs. Minton support the application.

Mrs. Minton has supplied the following information:

• in her view, no easement as claimed for by the body corporate exists.

• no access to Lot 6 will be allowed through her property with full access to Lot 6 available from the garage area on Lot 6.

• a railway sleeper was placed across the bottom of the gate some years before to divert run-off from lot 6 due to the ground levels of Lot 6 having been altered by a previous owner of that Lot.

• closure of the gate has reduced her concerns about her personal safety and security.

A letter has also been received from Messrs. Connor Hunter, Solicitors, written on behalf of Mrs. Minton which largely repeats the above assertions.

In reply to the issues raised by Mrs. Minton, the body corporate advises:

• that Mrs. Minton had altered the levels of her lot when lawn was laid after a considerable amount of drainage work had been performed.

• that the sleeper which was placed across the gateway after a dispute with the previous owner of Lot 6 denies the grounds maintenance contractor access via the gate to service Lot 6.

• that Mrs. Minton has not explained why she has “boarded up” the gate thereby denying access to the grounds maintenance contractor.

In addition to the information set out above, I have also had the benefit of viewing photographs and plans which depict the position of gates which provide access to some of the lots in this scheme.


CONCLUSION

In the adjudication of this dispute, I have carefully assessed all the information placed before me.

There can be little doubt that gates have been installed which provide either direct access to lots from common property or from one lot to another.

It is equally apparent that this form of access is used by the grounds maintenance contractor for work he is engaged to perform.

Access to the respondent’s lot by the grounds maintenance contractor is gained by the gate that leads from the common property into the courtyard area of lot 5.

I find that the closure of the gate between lots 5&6 has stopped the grounds maintenance contractor from gaining access to lot 6 through this gate.

I further find that the respondent has not shown any justification for closing this gate. With respect to the suggestion that access should be effected from the garage of lot 6, I do not consider that to be a practical suggestion, especially when there is a gate in the fence that is designed to provide such access.

Section 61 of the Body Corporate and Community Management Act 1997 provides that an easement exists in favour of a lot and against other lots for supplying utility services to the lot. The expression “ utility services” is defined in the dictionary to the Act as meaning a system or service designed to improve the amenity or enhance the enjoyment of lots or common property.

In my opinion, the services provided by the grounds maintenance contractor fall within the description of utility services and therefore a statutory easement exists in favour of lot 6 and against lot 5 which means that the respondent must allow access to lot 6 via the gateway in the fence between these lots. The orders I have made give effect to the reasons for my decision as set out above.

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