Givens Court [2002] QBCCMCmr 662 (7 November 2002)

REFERENCE: 0458-2002

ORDER OF AN ADJUDICATORMADE UNDER PART 10 OF CHAPTER 6 BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme: 71586

Name of Scheme: Givens Court

Address of Scheme: 13 - 19 Givens Court CAIRNS QLD 4870


TAKE NOTICE that pursuant to an application made under the abovementioned Act by Garry George Jordan, the owner of lot 15I hereby order that the body corporate must, at its expense, and within two (2) months of the date of this order, plant a minimum of one (1) tree as chosen by it (of 1-2 metres in height) in the common property exclusive use area of lot 13, directly under lot 15. In the case of this order, the owner of lot 13 will not be entitled to object to the planting of a tree or trees by the body corporate in the exclusive use area allocated to that lot in compliance with the mandatory terms of this order.

I further order that the body corporate may, at its expense, plant one (1) further tree as chosen by it (of 1-2 metres height) in the common property exclusive use area of lot 14, in the position previously occupied by the Ficus tree which was removed. In the case of this order, the owner of lot 14 will not be entitled to object to the planting of a tree by the body corporate in the exclusive use area allocated to that lot, in compliance with the discretionary terms of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0458-2002 “Givens Court” CTS 62The applicant Garry George Jordan, the owner of lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -We are seeking to have trees replaced that were part of the original landscape. They were cut down by an occupant of the lower unit without permission from anyone (body corporate, council or top unit occupants). 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 claimed or anticipated contravention of the Act or the community management statement; orthe exercise of rights or powers, or the performance of duties, under this Act or the community management statement; ora 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 that trees, which provided the applicant with “privacy, shade and a wind break” were removed without body corporate permission, by the occupier of another lot. The applicant complains that despite being notified on numerous occasions, the body corporate has not notified the relevant occupier. The applicant appears to consider that the occupier in question has acted in contravention of the by-laws in that the occupier has exclusive use, but not ownership of the area which the relevant trees were located. He states that “exclusive use is not ownership but is still body corporate run”. The applicant further states –One tree behind my property was a large mango. It developed rot and was removed. But never replaced by the body corporate. I was left with a very small amount of coverage from the trees that were in the grounds of unit 14. That is until recently when a young lady brought the property, and in the same week cut down all the trees that were part of the original landscape. Leaving my unit open to all the neighbours and absolutely no protection to the strong easterly winds. ... The applicant seeks that “new fully grown trees be planted”. It is clear that the application seeks redress by either the body corporate or the owner of lot 14 in the alternative, or both. The submission of the secretary / treasurer supports the application in part. The submission states “we are in agreement that the owner of unit 14 should replace the trees which she has cut down which has affected the lifestyle of the applicant ...”.The submission then adds that “because there is only about 2 metres of area between the building and the back fence we do not believe that any large trees should be planted there. We suggest 3 Bottle-brush to be planted in the yard of unit 14 to be at the expense of the owner of unit 14”. The submission concludes with an interesting statement –Adding to Mr Jordan’s problem is the fact that the neighbour at the rear has cleaned out a lot of trees and shrubbery which is adjacent to Mr Jordan’s patio and is probably a lot to do with the problem.The owner / occupier of lot 14, Lucy Marie Yelavich (the respondent), who is the occupier who has removed the trees in question, has also responded by way of submission. The respondent acknowledges removing “a tall (12-14 foot) tree of Ficus species on 22^nd April 2002 ... due to the invasiveness of the root system being in close proximity to the main building, paving and fence line, and the potential to cause damage to these areas. Three other smaller (6 foot) trees of Callistemon species were also removed which were in close proximity to the Ficus”. The respondent further states that “no Melaleuca, Gum or Mango trees were removed from the site (as incorrectly stated in the complainant’s submission) and the remaining 2 garden beds along the perimeter of the yard have remained full of mature trees. The empty garden bed was replanted ... with five Golden Cane palms from 25 litre plant stock”. The respondent surmises that the Ficus which was removed by her “was planted by a previous occupant of unit 14 without consideration for it’s potential to damage structures”. The respondent then states “it is also important to note that Unit 14 is not directly beneath the complainant’s unit 15, but next to and below it. ... Any plantings in the grounds of unit 14 will provide very little screening for unit 15, and the complainant has noted this in his submission”. On the specific issue, the respondent concludes that “I am more than happy to have the inappropriately planted Ficus replaced with a fully mature tree, provided all owners agree to such, without any further cost to myself”. The relevant by-law granting the respondent exclusive use of her courtyard is by-law 20 which grants exclusive use of common property to specified owners for the purpose of a courtyard. The by-law relevantly provides that “the owners of lots to whom exclusive use has been granted will comply with the repair, maintenance and replacement obligations of the body corporate under the Act. The owners ... will allow the body corporate and its servants or agents at all reasonable times access to the exclusive use area for any proper purpose including inspection and maintenance”. Relevant provisions of the standard module dealing with exclusive use by-laws are sections 123 and 124. Section 123 deals with the question of who is responsible for maintenance of an exclusive use area, whereas section 124 deals with the question of the making of improvements to an exclusive use area. Clearly the by-law itself makes the owner of the lot responsible for the “repair, maintenance and replacement obligations of the body corporate under the Act”. This position is confirmed by the provisions of section 123(2).
123 Conditions and obligations under exclusive use by-law—Act, s 136(1) If the owner of a lot included in the scheme to whom rights are in the first instance given under an exclusive use by-law agrees in writing, the by-law may impose conditions (which may include conditions requiring the owner to make a payment or periodic payments to the scheme’s bodycorporate or the owners of lots included in the scheme, or both).(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.Examples of operating cost for part of common property—Cost of providing lighting to the part of common property.In the case of improvements, section 124 (see below) provides that if the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made. I assume that this is the provision which the applicant considers to be applicable to this current scenario. 124 Improvements—Act, s 136(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies. (2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.(4) However, if the value of the improvement mentioned in subsection (3) is more than $200, the making of the improvement must be authorised by a special resolution of the body corporate.The question arises whether the work undertaken by the respondent amounts to maintenance, which the respondent is required to undertake on behalf of the body corporate, or improvement, for which the respondent requires approval of the body corporate in general meeting to undertake. I consider this question to be a difficult one to resolve.
Gardening is usually associated with maintenance. However, given that the respondent undertook the removal of trees from what is technically common property, perhaps it would have been prudent for the respondent to have consulted with the body corporate regarding her proposed changes. I recommend that she do so in the future with any proposed changes to her exclusive use area.There are other factors to be considered. Firstly, I acknowledge that as the respondent’s lot is not directly beneath that of the applicant, then the trees in question were to the side of rather than directly enclosing the applicant’s balcony. In saying this, I also acknowledge that the upper branches of trees do spread such that the location of the tree stump is not necessarily reflective of the position of the upper branches.
However the evidence does suggest to me that perhaps the applicant has overstated the effect of removal of the trees by the respondent, to the extent that it is more a combination of both the removal of trees by the respondent, and by an adjoining neighbour (over which the body corporate, or any lot owner, has no control) which has contributed to the applicant’s loss of shade and privacy. This is certainly stated by the submission by the secretary / treasurer. Moreover, the applicant’s own statement that “I was left with a very small amount of coverage from the trees that were in the grounds of unit 14” indicated to me the somewhat limited extent to which the trees in the respondent’s common property area in fact contributed to the applicant’s shade and privacy. It seems to me more likely that two other factors have had a greater impact on the applicant’s shade and privacy that the respondent’s action; namely the removal by the body corporate of a Mango tree which had developed rot, and the clearing of certain trees from an adjacent block.

In the circumstances, I am not prepared to make any order against the respondent. I am not satisfied that the impact of the respondent’s actions have been as significant as the applicant has alleged.

In its submission, the body corporate secretary / treasurer did propose the following solution, quote –
Because there is only about 2 metres of area between the building and the back fence we do not believe that any large trees should be planted there. We suggest 3 Bottle-brush to be planted in the yard of unit 14 to be at the expense of the owner of unit 14. We also suggest that one Bottle-brush be planted in the yard below unit 15, Mr Jordan’s, at body corporate expense to replace a tree which was lost there some time ago.

Whilst I agree with the general thrust of this proposal, I consider that it is incorrectly proportioned. I consider that the evidence suggests that it is the loss of the Mango tree, and trees on the neighbouring property which has most affected the applicant’s shade and privacy. Given this, the proposal to plant three trees in the adjacent lot 14, and only 1 in the common property exclusive use area directly under the applicant’s lot, appears to me to be, with respect, misconstrued. Whilst I would have liked to have inspected the scheme to consider this aspect, I am not able to do so on the basis of the location of the scheme, and I therefore must rely on which appears to me to be more appropriate based on the material before me. Given this, I consider that perhaps it would be better to plant a number of trees directly behind the applicant’s lot (lot 13), and not so many in the adjacent lot 14.

In the circumstances, I intend to order that the body corporate must, at its expense, plant a minimum of one tree as chosen by it (of 1-2 metres height) in the common property exclusive use area of the lot under the applicant’s lot. I further intend to order that the body corporate is authorised, at its expense, to plant one further tree as chosen by it (of 1-2 metres height) in the common property exclusive use area of lot 14, in the position previously occupied by the Ficus which was removed. The intent of this order is that the first part is mandatory on the part of the body corporate whereas the second part is discretionary. In the case of the first part of the order, the owner of lot 13 will not be entitled to object to the planting of a tree or trees by the body corporate in the exclusive use area allocated to that lot in compliance with the mandatory terms of this order. In the case of the second part of the order, the owner of lot 14 will not be entitled to object to the planting of a tree by the body corporate in the exclusive use area allocated to that lot, in compliance with the discretionary terms of this order.