Braidwood by the Sea [2003] QBCCMCmr 350 (24 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0558-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18200
Name of Scheme:	Braidwood by the sea
Address of Scheme:	72 Sixth Avenue MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Braidwood by the Sea

RA MeekI hereby order that the body corporate for Braidwood by the Sea shall immediately obtain a set of photographs or other evidence showing the original standard of presentation of the gardens courtyard areas, and provide these to the owner of lot 20, Nancy Mabel Stanbury, for reference as to the relevant required standard of garden presentation.

I further order that, within a period of two (2) months of the date of this order, the owner of lot 20, Nancy Mabel Stanbury, shall bring her common property exclusive use garden area to the standard of gardens which existed throughout the complex at the time the relevant exclusive use by-law was created, and thereafter shall maintain the garden in her common property exclusive use area to that standard whilst ever the current by-law continues to apply.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0558-2002

"Braidwood by the sea" CTS 18200

The applicant, the Body Corporate for Braidwood by the sea, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the exclusive use courtyard area relating to Unit 20 in accordance with the body corporate by-laws be Cleaned up and kept in a clean and tidy fashion.

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)).

In the supporting grounds, the body corporate states that

The area is an eyesore for other residents and it does detrimental damage to the value and appearance of the complex. There is "chicken wire" attached to the base of the corner fencing panels ... mainly surrounding their raised garden bed. They also have some sought of mesh hanging between trees or a very high stump and a tree ... There are palms that have been hacked off at the tops, the grass is mainly kept in an unmowed state, the garden is filled with many obscure plans and weeks totally destroying any theme that the body corporate might have had. It is wild, overgrown and unkept in appearance.

The body corporate require that the area be kept in a neat and tidy state to match the balance of the complex. Notice should be given to the owner of Unit 20 to conform with the requirements of the body corporate. ...

The body corporate has attached a copy of the relevant exclusive use by-law. Numbered 12, it provides that owners for the time being of lots 1 to 24 "shall have exclusive use and enjoyment over those parts of the common property designated as car spaces and courtyard areas ... and the said proprietors shall be responsible for the maintenance of their respective areas pursuant to section 37(1)(c) of the Building Units and Group Titles Act 1980".

The Building Units and Group Titles Act has now been replaced by the Body Corporate and Community Management Act 1997 (the Act) and section 37(1)(c) with section 109(1) of the Standard Module.

The owner of lot 20, Nancy Mabel Stanbury, has responded to the application by way of submission. Stanbury states that she has followed the by-law of keeping the garden neat and tidy.
She states –

To me neat and tidy means not having garbage and / or rubbish in the area, and not allowing the growth of weeds and undergrowth to become excessive.

Stanbury does claim some maintenance including removal of creeping daisy which apparently was a weed, and removal of "five palms affected by the extremely windy conditions".

Stanbury further states that the mesh is in place to prevent entry by animals, and will be removed once the sleepers "offered by the committee" are installed. Further, that "any structures I have erected is there to guide climbing plants so that they will not be harming walls / fences".

Stanbury concludes with –

If I choose to have a "cottage type" garden with a great variety of plants – some unfamiliar to non-gardeners surely that is my prerogative?

The body corporate has replied to the submission by Stanbury, and has emailed colour photos of Stanbury’s garden. I consider that the body corporate application is made without acknowledging a pretty fundamental flaw. The application is about what is "neat and tidy", but in my view, this is incorrect. There is nothing in the by-law which requires maintenance in a "clean and tidy" condition. The body corporate has implied this meaning into the interpretation of the by-law. The by-law merely states that the exclusive use areas granted (car spaces and courtyard areas) – note that gardens are not even referred to – and that owner "shall be responsible for the maintenance ...".

To achieve the interpretation the body corporate is seeking to use as the basis of this application, one needs to firstly assume that "courtyard" includes any garden area therein, and then, more significantly, that "maintenance" in the context of the by-law means to maintain in a "clean and tidy condition". This by-law is very poorly drafted, particularly to the extent of the body corporate seeking to enforce a certain standard of gardening or garden maintenance. The by-law is totally silent on the standard to which the garden, if it can be implied, should be maintained.

I am prepared to assume that "courtyard" in the by-law impliedly refers to and includes any garden areas attaching to the lots. However, in my view, the body corporate cannot simply then imply into the by-law, the desired or expected standard which it expects the gardens will be maintained to. This is so even if all other owners are maintaining their courtyards to a particular standard.

The former section 37 did not refer to "clean and tidy". Rather it referred to "properly maintain and keep in a state of good and serviceable repair". I consider that these words cannot easily be applied to gardens.

The New Shorter Oxford English Dictionary defines "maintenance" (the word used in the by-law) as "the action of keeping something in working order, in repair etc.; the keeping up of a building, garrison etc by providing means for equipment etc.; the state or fact of being so kept up; means or provision for upkeep.

Obviously the term implies reference to its former or previous state. Thereafter the action of maintaining something requires that the item (for want of a better term) be kept at its original level or state.

Endeavouring to apply this to Stanbury’s garden, it is necessary to know what the original state of the courtyard was, not when the applicant purchased, but rather when the by-law came into effect.
If the courtyard had been landscaped with lawn and garden beds by the original developer (who I am assuming was the owner when the by-law was created), then this is the standard which all owners of the lot must thereafter keep the garden maintained to.

In the applicant’s grounds, there is a reference to palm trees, and to unmowed grass. This suggests that there was originally a grassed area, with some adjacent landscaping (the palms). If this was so, then in my view, the respondent has an ongoing obligation to maintain this standard of presentation. This would require the respondent to remove any weeds which had taken hold, and to remove debris. For example, if the mesh was not there at the time the by-law was created, then it should be removed, for the reason that it allegedly detracts, and does not maintain the original standard. It would also require the respondent to replant palm trees or at least some other shrub or bush to replace that which was originally there and which have died and been cut off. This does not mean that the respondent cannot have a "cottage garden"; however it does require that whatever style of garden the respondent chooses to have, it must not be of any lesser standard, including its level of aesthetic presentation, as was originally the case when the by-law was created.

I cannot be any more specific then I have above. I consider the resolution of this dispute will require some negotiation between the body corporate and the respondent. I have no doubt that there will be sufficient evidence available amongst current lot owners of the standard of the garden that original existed (eg. photos, contract of sale documents indicating standard of garden presentation at the time of sale).

In the circumstances, and for the reasons set out above, I intend to order that, after being provided with evidence of the original standard of garden presentation, the owner of lot 20, Nancy Mabel Stanbury, must maintain the garden in her common property exclusive use area to the standard of gardens which existed throughout the complex at the time the relevant exclusive use by-law was created. In this regard, as Ms Stanbury was not an original owner, it will be necessary for the body corporate to obtain a set of photographs or other evidence showing the original standard of presentation of the gardens and provide these to Ms Stanbury for reference as to the required standard. The body corporate should do this immediately.

Should this original standard not be satisfactory to the body corporate, and owners, then the body corporate will need to consider amending its by-laws to specifically provide for the standard of garden maintenance and presentation which is required in common property exclusive use courtyard areas.
n