Noosa Close [2003] QBCCMCmr 32 (23 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0439-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20169
Name of Scheme:	Noosa Close
Address of Scheme:	Tangmere Court and Sarah Court NOOSA HEADS QLD 4567

TAKE NOTICE that pursuant to an application made under the abovementioned Act by William George Braine, the co-owner of lot 21

I hereby order that the body corporate shall immediately cease any and all work being undertaken in relation to landscaping of the common property anywhere in the vicinity of the tennis court until this application is finally determined.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0439-2003

"Noosa Close" CTS 20169

The applicant, William George Braine, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1) To put on hold by-law 24 to protect access of common property as we believe this by-law conflicts with the BCCM Act.
2) To put on hold any tree removal and mulching of a ‘lawn area’ on the Westside of the tennis court.

The applicant has also sought a final order of an adjudicator as follows:

1) To maintain access rights to walkway between tennis court & lot 24 through to barbeque area etc.
2) To maintain original lawn areas both sides of tennis court
3) To maintain trees on Westside of tennis court
4) To confirm that a by-law cannot conflict with a BCCN Act to protect access and enjoyment to all common property
5) To fence south boundary of tennis court area (lot 24)
6) To fence west boundary of tennis court area (lot 22 & 23)

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

In his supporting grounds the applicant stated that he disputed the actions of committee members in relation to changing common property areas without approval and blocking the rights and privileges of lot owners and failing to maintain a walkway. The applicant expressed the view that the committee does not have the authority to discourage and stop use or enjoyment of common property. The applicant further stated that all lot owners should be entitled to access and enjoy common property, especially the entertaining area, at any time, without being harassed by any other lot owner.

The applicant provided copies of minutes of various meetings at which landscaping and access to common property around the tennis court were discussed.
The body corporate committee was invited to respond to the application. On 22 July 2003, the body corporate manager, Mr Peter McPhalen, telephoned a member of the Commissioner’s staff, and advised that the committee was unable to make a submission within the time frame allowed, and that the interim order should be considered without a submission from the committee.

Interim orders, by their very nature, require that a tight time frame be imposed for the making of submissions. The applicant also telephoned a member of the Commissioner’s staff on 22 July 2003, and advised that work had begun that day on the western side of the tennis court.

I note from the committee minutes of 13 June 2003 that the committee acknowledged the area between the tennis court and lot 24 "clearly is common property and as such, every owner has the right to enter this stretch of land and any other part of the common property." However, the committee expressed the view that the same area "is, and clearly has been for a number of years, a garden bed" and that in the circumstances it seemed to be an unreasonable demand from one owner for that area to now be maintained as a walkway.

In the short time available, and without the benefit of a submission from the committee, and more importantly other owners (as will occur in relation to the final orders), I consider that any work planned by the committee on the common property near the tennis court should be placed on hold to preserve the status quo. I note that work had already commenced on 22 July 2003, and that certain trees may have been removed. The matter is obviously of sufficient concern to the applicant for him to have lodged this application. Whether that concern is shared by other owners is yet to be determined. I shall have regard to all views expressed by owners and the committee when deliberating on the final orders.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 279(2) of the Act which provides that -

(2) An interim order--

(a) has effect for a period (not longer than 1 year) stated in the order;

and

(b) may be extended, varied, renewed or cancelled by the adjudicator

until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when--

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the

application a written notice under section 241 rejecting the

application; or

(iii) a final order is made by an adjudicator to whom the

application is referred.