Emilin [2002] QBCCMCmr 469 (29 July 2002)

RA MeekREFERENCE: 0272-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6106
Name of Scheme:	Emilin
Address of Scheme:	15 Galloway Drive ASHMORE QLD 4214

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

Christine Margot Leick, the owner of lot 1



RA MeekI hereby order that, within three (3) months of the date of this order, the owner of lot 2, Cristita Pebida Reale, shall cause the fence recently constructed by her on common property to be reconstructed, using existing materials, on a different line which represents an inversion of the current line of the fence, so that rather than bowing out towards the common property driveway, the fence will be reconstructed so as to bow in towards the lot, and will transect an area of garden bed roughly through the centre of that garden bed. The owner of lot 2, Cristita Pebida Reale will give written notice to the owner of lot 1, Christine Margot Leick of the date when reconstruction of the fence has been completed, which written notice cannot be dated more than three (3) days before the date on which the notice is given.

I further order that the owner of lot 1, Christine Margot Leick, shall thereafter be authorised, at her election, to be responsible for planting of the garden bed located on the external driveway side, and further, to place potted plants on the driveway side where there is concrete, again if she so elects. If the owner of lot 1, Christine Margot Leick, does elect to plant or place potted plants in either of these areas, then the owner of lot 2, Cristita Pebida Reale, or persons connected with her shall not do anything to damage or destroy these plants.

I further order that if the owner of lot 1, Christine Margot Leick does not elect to be responsible for planting of the external side of the garden bed by so planting the bed within one (1) month of the date of the notice, or the date on which the notice is given, then the body corporate (ie. both owners) will be responsible for planting and management of the garden bed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0272-2002

“Emilin” CTS 6106

The applicant, Christine Margot Leick, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	No more fencing or other building done without my written permission. Fencing on both side of carport removed.
2.	Fencing in front of unit lowered.
3.	Access to gate in back fence padlock removed or key to lock.

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 do not propose to restate the applicant’s grounds, nor the response of the owner of lot 2, Cristita Pebida Reale by way of submission to the application. Both parties are aware of the statements of the other via the application process.

Because of the nature of the dispute, I undertook an inspection and meeting of the parties on Thursday 25 July 2002. Both parties were present at this inspection and meeting. The respondent was also represented by a male person, Barry.

There is disagreement on significant aspects of the application. Most relevantly, the type of fencing to be installed, the height of that fencing, and the amount of fencing. The applicant claimed that she gave permission for a single panel, and not the whole fence. The respondent denies this, and refers to the applicant’s permission as indicating approval and knowledge of the fencing proposed. There is nothing in writing to evidence the matter either way.

The scheme is a duplex, with the applicant’s lot 1 at the front of the parcel, and the respondent’s lot 2 at the rear of the parcel. Both owners have been granted exclusive use of parts of the common property, a fact of which the applicant was unaware at the inspection. The fact of the allocation of exclusive use does affect the outcome of certain aspects of this dispute. For example, the third order sought by the applicant (access to gate in back fence padlock removed or key to lock) cannot be made since the entire rear area of lot 2 is within the exclusive use allocation of the respondent.

The respondent’s exclusive use allocation of common property appears to terminate in line with her garage. The fence which has been erected is located beyond this point on common property. One of the applicant’s particular concerns with the fence is that –

In my opinion the fence has devalued the property and makes it look like a refugee camp. ...

At the inspection, I acknowledged that the fencing was visually prominent. The representative of the respondent indicated that he believed that the fencing was an improvement to the property generally. I stated that what some might consider an improvement, others might view as a detriment.

Given the uncertainty regarding what permission was in fact given (although it was not denied that some verbal permission had been given) I proposed a solution whereby the fence was to be reconstructed on a different line. The line proposed, and agreed to by both parties at the inspection, is to invert the fence, so that rather than bowing out towards the common property driveway, the fence will be reconstructed so as to bow in towards the respondent’s lot. The new path or line of the fence is to transect an area of garden bed roughly through the centre of that garden bed. The purpose of routing the fence through the garden bed is to allow shrubs or screening plants to be planted in the garden bed on the driveway side so as to reduce the visual impact of the fence from the applicant’s perspective. I further proposed that the applicant be authorised to place potted plants on the driveway side of the fence where there was concrete so as to further reduce the visual impact of the fence, which as I have said, was in my opinion, visually prominent. At the inspection, the applicant indicated that these measures were not necessary as the “respondent liked gardening as much as (she) did”.

Upon further consideration however, I propose to authorise the applicant (if she chooses) to be responsible for planting of the garden bed located on the external driveway side, and further to be authorised to place potted plants on the driveway side where there is concrete, again if she chooses. I consider that these measures are necessary to redress the concern which the applicant raised in her application, and again at the inspection, of the visual impact of the fence. If the applicant does chose to plant or place potted plants in either of these areas, then the respondent, or persons connected with her should not do anything to damage or destroy these plants.

In my view, these are a limited imposition or restriction on the respondent, who through the fence, even on its new route, has effectively annexed a slightly increased area of common property for her lot in addition to the exclusive use area already allocated to her. The one benefit of the fence however to the applicant is that it prevents parking on a part of the common property driveway adjacent to the applicant’s garage. The applicant stated that parking on this area had been an issue.