Fairways Mews [2002] QBCCMCmr 606 (3 October 2002)

C G YOUNGREFERENCE: 0494-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2100
Name of Scheme:	Fairways Mews
Address of Scheme:	38 Suncoast Beach Drive MOUNT COOLUM QLD 4573

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robert Anthony CHURCH, as the owner of Lot 2,

C G YOUNGI hereby order that the body corporate consent to the installation of a garden shed by the owner of Lot 1 Momcilo Filipovski, in the north-western corner of the scheme common property, at his sole cost, but that the consent is subject to the following conditions being met and subsequently maintained by the owner of Lot 1 –

a) the garden shed must be a professionally made one and no larger in size than 2.5 metres by 2 metres and not more than 2 metres at its highest point.

b) the shed must be either a powder coated colorbond/zincalume type shed in a muted green colour, or a plain galvanised shed that must be painted (roof as well as walls) in a muted green colour.

c) professionally made lattice must be installed around the southern and eastern sides of the shed (including a hidden entrance as necessary) to be of a height no lower than .5 metre beneath the highest point of the shed roof, and that creepers be planted so as to grow to cover the lattice.

d) the shed must be used for storage purposes only.

I further order that the body corporate, by the engagement of an appropriately qualified tradesperson, must install professionally made lattice on the top of the existing fence so that it extends no less than 60mm above the top of the fence palings, and extending from the wall of the lot buildings to the first gate post, but allowing in the last metre or two that it be angled downwards to the gatepost (in a manner agreed to by both owners) for appearance purposes. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0494-2002

“Fairways Mews” CTS 2100

This is the final order to an application by Robert Church of Lot 2 who has sought the following of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

1. Stop any further building of the shed to north-west corner of common property.

2. Remove the formwork and building materials from the north-west corner.

3. Replace removed trees to north-west with trees or plants to screen the adjoining property’s shed (No. 40).

4. Mr Filipovski to accept that he has to advise of proposed developments and seek Body Corporate approval before commencing any work anywhere on the Common Building or Grounds.

The applicant also made application for an interim order in the same terms as the final order sought above, and on 27 August 2002 I issued the following Interim Order 494-2002 –

I hereby order that Momcilo FILIPOVSKI, the owner of Lot 1, must immediately stop carrying out any further work on the construction of a shed on common property pending the determination of this application by final order.

JURISDICTION:
This is a dispute between an owner, the applicant Church of Lot 2, and another owner, the respondent Filipovski of Lot 1, concerning the erection of an improvement, namely a shed, on the common property for the benefit of the owner of the lot and without the approval of the body corporate. This is therefore a matter that falls within the dispute 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.

General jurisdiction: 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 discretionary provisions of section 194 of the Act, the interim order was made without reference of the application to the respondent Filipovski because of the urgency in halting the progress of the erection of the garden shed subject of the application.

However, subsequently a copy of the application was served on the respondent with an invitation to make a submission to the matters raised in the application. Filipovski lodged a written submission, which the applicant inspected and lodged a reply to.

DETERMINATION:
In my reasons to the interim order I commented that “Fairways Mews”, which comprises only the two lots, was registered on 10 March 1994 as a building units plan (now termed a “building format plan”). There are no by-laws recorded to show that the common property is subject to any by-law giving exclusive use to one or both owners, as is the more usual in schemes of this type and configuration. Consequently, all of the land area surrounding the lot buildings is common property, as are the external surfaces of the lot buildings, the roofs of both lots and the lower half of the floor slab four (owners only own to the mid-points of the floors, walls and ceilings of their lot building).

Section 37(1) of the Act states that owners own the common property as tenants in common, however sections 87 and 114 of the Act state that it is the body corporate which controls, administers and maintains the common property. Those sections also provide that in making decisions concerning the common property, the body corporate must act reasonably and for the benefit of owners.

Accordingly, whatever Filipovski may have told to the contrary by the real estate agent at the time of purchase, or by his solicitor as he claims, he does not have sole control over or the sole use of, any area of common property. Section 129 of the Act, however, provides that an occupier (owner or tenant) cannot use the common property in a manner that interferes unreasonably with its use by another occupier. If owners wish to have sole use of an area of common property (for example, half of the rear land area as currently enclosed by the dividing fence), then they will need to resolve the matter in meeting, including any conditions attaching to the grant of exclusive use, and record with the Registrar of Titles by way of a new Community Management Statement containing the by-law. Exclusive use operates to exclude others (owners, tenants) from the granted area, but does not do away with the requirement for the owner to still seek the prior approval of the body corporate for the installation or erection of improvements, such as a shed (see section 124 of the Standard Module regulations).

In order to better understand the dispute and the position of the parties, on 2 October 2002 I visited the scheme and inspected the areas subject of the dispute, in the presence of the applicant’s wife, Maureen Church, who occupies Lot 2, the respondent Filipovski and his interpreter, neighbour Edward Klaassen.

Despite the absence of any exclusive use by-laws, there is a fence extending from the building common wall to the rear boundary fence, dividing the rear common property in two. Mrs Church said that this was part of the original construction of the scheme (Robert Church was the developer), having been mistakenly erected by the person erecting the perimeter fence but subsequently let stand to provide a measure of privacy to each owner. A gate was included in the fence to provide access by owners as necessary.

This fence has, from the outset of the scheme, provided a de facto division of the rear area. Church agreed to Filipovski removing the chip-bark landscaping and replacing it with a garden-bordered lawn, and also to the removal of the rear area trees apart from a still standing melaleuca. However, Church was not consulted regarding the erection of the garden shed, and objects to its presence as an eyesore, impairing the view of the area behind Filipovski from the ground floor kitchen/living area and from the upstairs bedroom. Church considers the shed would be better located on the western side of Lot 1 where a vegetable garden has recently been established.

Filipovski says that he needs to mow the rear area and, with nine steps to access the rear-area level from the lower house-level, it is impractical to have the shed located on the lower level. Also, the western side is very narrow and movement and use of a shed in the restricted space would be difficult.

The installation of a garden shed is a reasonable use of common property in the circumstances where lawn and garden areas have been established by Filipovski (with approval). It seems to me the most convenient location for the garden shed is on the fence line of the rear area, as Filipovski proposes. However, as discussed at the inspection, the wishes of both parties in respect of the shed can be reasonably accommodated by Filipovski carrying out the following conditions: installing a professionally made garden shed of no larger size than around 2.5 metres by 2 metres and 2 metres at its highest point; installing either a powder coated colorbond/zincalume shed in a muted green colour, or an unpainted galvanised shed that must be painted (roof as well as walls) in a muted green colour; installing professionally made lattice around the southern and eastern sides of the shed (including an entrance as necessary) to be of a height no lower than .5 metre from the highest point of the shed, and that creepers be planted so as to grow to cover the lattice; and that the shed is to be used for storage purposes only.

The other complaint of the applicant concerns the behaviour of the Filiopovski’s, their relations and friends in using the south-eastern area of lawn to place chairs, and sunbake, so as (Church maintains deliberately so) to be in the full view of the Church’s kitchen and living area. I am inclined to agree with Mrs Church on this point, having seen photographs presented at the inspection, especially in regard to the nude sunbathing by a family member, which most neighbours would find distasteful if not offensive.

However, an order concerning behaviour is a difficult one to monitor and prosecute if breached. A more permanent solution is a far better option and, again as discussed at the inspection, a reasonable solution can be achieved by the installation of around 60 mm high lattice on top of the existing fence, extending from the wall of the lot buildings to the gate – the lattice could, in the last metre or so, be angled down towards the gate for appearance (owners should be able to agree on the final shape). I am aware that this will not remedy the situation from the Church’s upstairs windows, however it will afford privacy for the kitchen and living areas which is that area most commonly used during the daytime.

While the applicant may be dissatisfied in considering this order as rewarding Filipovski after he, deliberately or otherwise, failed to obtain body corporate approval for the shed, I think the solution is the most reasonable in the circumstances. The original erection of the dividing fence was always likely to promote in the minds of subsequent owners a false perception that the enclosed area adjacent to their lot building was “their” backyard. Having acquiesced in allowing that situation to remain, and allowing the landscaping to be altered, only served to support that perception. Without the fence and with common landscaping, the situation may well have been different.

However, Filipovski must now understand the restrictions that apply in respect of the installation of improvements on any part of the common property. Any improvement contemplated in the future must be brought before the body corporate for prior approval. If the decision of the body corporate is unreasonable then like any owner he can apply to this office for resolution of the matter, but any improvement made without first approaching the body corporate (with the law having been explained in these reasons) will not receive sympathetic consideration.

In regards to the allegations of harassment, owners are reminded of the statutory requirement that each has a responsibility not to use their lot or the common property in a manner that will cause a nuisance to others.