Maria Creek Estate [2002] QBCCMCmr 526 (27 August 2002)

C G YOUNGREFERENCE: 0317-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	PO Box 103 KURRIMINE BEACH QLD 4871

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

Peter Alfred George HABLETHWAITE and Marcia Heather HABLETHWAITE, as the co-owners of Lot 3,



C G YOUNGI hereby order that the application for the following order –

“Order the Body Corporate to remove or have removed, the chain strung across the common property roadway between lots 4 & 5.” 2y

is dismissed, and the chain may remain in place at the end of the concrete driveway turning circle until such time as an entrance gate (or other appropriate barrier) and a sufficiently prominent sign declaring the scheme road is for private use only, are installed at the entrance to the scheme.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0317-2002

“Maria Creek Estate” CTS 25253

The applicants, Peter and Marcia Hablethwaite of Lot 3 (and Lots 2, 6, 7, 8 and 9), have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

“Order the Body Corporate to remove or have removed, the chain strung across the common property roadway between lots 4 & 5.”

JURISDICTION:
This is a dispute between an owner, the applicants Peter and Marcia Hablethwaite of Lot 3, and the body corporate, the respondent, concerning the removal of an item from the common property. This is a matter that falls within the disputes resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

Section 223(1) of the Act 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under the provisions of section 194 of the Act, a copy of the application was provided to the body corporate and copies were caused to be provided to the committee and to all other owners, with an invitation to all recipients to respond to the matters raised in the application.

The only submission received was a joint one from: Michael Taifalos and Shirley Matthews, the co-owners of Lot 1; Melivan Pty Ltd (Ivan and Carmelina Andrijevic), owner of Lot 4; and Claude and Shirley Marsh, co-owners of Lot 5 (“the three owners”).

The applicants (“the Hablethwaites”) state that –

• The chain is an unauthorised obstruction of the common property.

• It prevents access along the common property roadway.

• At the annual general meeting held on 8 March 2002, it was resolved that the chain be removed but that has not happened.

• It prevents our access by vehicle to Maria Creek via the roadway.

The application is supported by a copy of a letter from a real estate agent to the Hablethwaites, saying that the presence of the chain gives the impression to potential purchasers that access to the creek boat ramp is restricted so devaluing the price of lots.

In their joint submission, the three owners (the only owners other than the Hablethwaites) say that there is no public road to the water and consequently the general public, either ignoring or being unaware of the small “Private Property Keep Out” sign at the scheme entrance, would use the scheme roadway to access the water. They erected the chain to stop this practice. It is erected at the end of concreted roadway turning circle, after which there is loose sand up to the water. The owners of Lots 4 and 5, whose lots are nearest to this point, have often in the past had to assist drivers who bogged their vehicles in the sand. By erecting the chain, trespassers are alerted that they can go no further towards the water, and are able to safely turn their vehicle around on the concrete turning circle.

The three owners say that had the Hablethwaites kept their promise as developers to install a gate at the entrance, there would be no necessity for the chain.


DETERMINATION:
I note by Order 119-2002 issued on 4 June 2002 the general meeting referred to by the Hablethwaites as the source of the authority to remove the chain, namely the annual general meeting of 8 March 2002, was declared void.

Section 37 of the Act provides that common property is owned by all of the owners as tenants in common. Section 114 then provides that it is the body corporate which must administer, manage and control the common property, reasonably and for the benefit of owners. Section 129 of the Act then broadly defines how owners may use the common property –

Nuisances

129. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that –

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

That is, in this instance the occupiers of Lots 4 and 5 (the Andrejivic and Marsh families) may use the common property by erecting a chain across the end of the driveway/turning circle providing it does not cause a nuisance, hazard or unreasonable interference to others. The owners of Lot 1 have shown that they are not adversely affected by the chain, and in fact support its presence as meeting a need of owners generally. The only owners complaining of its presence are the applicants, the Hablethwaite family.

In their submission, the three owners point out that it is not the Hablethwaites but the owners of Lots 4 and 5, whose lots are closest to the end of the driveway, that are called upon to aid bogged trespassers. Apart from this, the chain does not prevent owners from accessing the water as there is, “plenty of room on either side to pass through”, presumably with the appropriate vehicle and driving precautions. Their other point already referred to, is that had the Hablethwaites been in favour of the erection of a suitable entrance gate, then the need for the chain would not arise.

I note in a separate supporting document dated 24 June 2002 that the Hablethwaites state that they would agree to an order to, “move the light plastic chain from the roadway between lots 4 & 5 to the entrance of the roadway to replace the heavy metal chain”. Also, as stated earlier, their agent believes the chain deters potential purchasers and devalues the applicant’s lots.

It seems to me that if the proposition to move the chain to the front was put to the other owners, they may not agree on the grounds that they clearly believe the Hablethwaites have not kept faith with their promise to purchasers to install an entrance gate. In any case, it seems to me that in the circumstances it is reasonable for the chain to remain in place. That is –

• the owners of Lots 4 and 5 have a continuing problem with trespassing vehicles and having to extricate some of them from the sandy area.

• there is no effective barrier or prominent enough notice to deter trespassers from entering the scheme, and if the Hablethwaites as the developers, believe they have no obligation to erect an entrance gate (this alleged obligation is a contractual matter I have no evidence of) then the body corporate, for which they have the majority voting power, should do so.

In summary, until either the Hablethwaites or the body corporate, whichever is the appropriate party, installs an entrance gate then the plastic chain may remain in place.