Newmarket Mews [2003] QBCCMCmr 449 (31 March 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0521-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25006
Name of Scheme:	Newmarket Mews
Address of Scheme:	22 Thurlow Street

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

C G YOUNGI hereby order that the statement set out on pages 3 and 4 of the reasons to this order, is a declaration of the division of responsibility between the body corporate and owners for the maintenance of dividing structures, including paling fences and retaining walls, existing in this scheme. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0521-2002

"Newmarket Mews" CTS 25006

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"The body corporate seeks an order directing who is responsible for the repair of retaining walls and consequent damage to perimeter fences."

JURISDICTION:
This is an application by the body corporate seeking a declaratory order as to responsibility for the repair of dividing structures (fences and retaining walls) within the scheme, and for consequential damage to the scheme’s perimeter fences. This is a matter that comes within the dispute resolution provisions of the legislation (see sections 182A, 183 and 223 of the Act).

General powers of an Adjudicator in making an order:
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:
In accordance with the requirements of section 194 of the Act, a copy of the application was provided to all owners with an invitation to respond to the matter raised in the application. Submissions were received from three owners.

Briefly, the facts of the matter are as follows. The retaining wall running along the western boundary of the scheme are, according to the body corporate’s application, "moving" and "it is anticipated that further movement may be experienced over time". The body corporate also states that a retaining wall separating Lot 41 and the common property access driveway and rubbish bin area, is also moving. Copies of photographs of the relevant areas were attached to the application. Paling fences sit atop the retaining walls, with, according to the body corporate in respect to the western scheme boundary, the fences actually defining the boundary; the retaining wall juts some 30 cm into the lots (Lots 26 to 31).

The body corporate seeks a declaration as to the various responsibilities of the body corporate and owners in respect of the retaining walls.

I note that this file is one of a small number of files that were overlooked by this office and I apologise for the delay. While I note that the Body Corporate Manager distributed a copy of the application to every owner, only three responded, despite Lots 26 to 31, and Lot 41, being identified in the application as lots being directly affected – that is, the owners are parties likely to be affected by an order within the scope of section 194 of the Act. Of these affected parties, only the lessee of Lot 26 has responded, saying that on his inspection of the dividing structure with the lessor, the retaining wall was found to be in a sound condition (though the retaining wall behind Lot 28 may be shifting).

The applicant has not included with the application any report by a qualified person (engineer, or other appropriate expert) as to the state of the wall and, if defective, what repairs are necessary to remedy it.

Accordingly, in the absence of the following: an expert’s report on the state of the retaining walls and any necessary repairs; proper identification of the retaining wall in relation to the boundary line of Lot 41; and specific responses from affected owners, particularly the owner of Lot 41, I intend to declare the law generally, and not in the particular, in respect to the maintenance responsibility for the scheme’s dividing structures of interest. This information will enable the body corporate to reach its own conclusions as to responsibility by applying the law to the particular circumstances.


DETERMINATION:
"Newmarket Mews" was registered as a group title plan (now termed a standard format plan) on 2 November 1994, and comprises 43 residential lots in a villa configuration. A group title plan/ standard format plan is a subdivision of land, and owners of lots have ownership of the land comprised within their lot, and all of any building sited on the lot. This is in contrast to the alternative type of community title plan, a building format plan, where owners only own to the centre-point of the floor, walls and ceiling of that part of the building which comprises their lot.

I will firstly set out the general law in respect to maintenance responsibility, then how that relates to "dividing structures", in particular, retaining walls and paling fences.

General maintenance responsibility and responsibility for fences:

Section 37 of the Act provides that owners in a community titles scheme own the common property as tenants in common. Sections 87 and 114 then provide that it is the body corporate which administers the common property for the benefit of owners.

In a standard format plan such as "Newmarket Mews", the respective maintenance responsibilities of the body corporate and owners are set out in the legislation as follows –

• In regard to owners, section 120 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") generally requires that owners must maintain their own lot in good condition.

• In regard to the body corporate, section 109(1) of the Standard Module requires that the body corporate must maintain the common property in good condition, and structural common property in a structurally sound condition (there are also separate maintenance responsibilities regarding infrastructure such as pipes, wires, etc, which are not relevant to this dispute).

Accordingly, under the general maintenance provision of section 120 owners of lots in the scheme are responsible for the maintenance of their respective lot buildings and land/courtyard areas within their lot boundaries. However, in respect to "dividing structures" the legislation sets out some specific responsibilities.

Section 258 of the Act makes specific provisions concerning the cost responsibility for dividing fences –

258 Body corporate to be taken to be owner of parcel for certain Acts

etc.

(1) The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts--

• Dividing Fences Act 1953

• Land Act 1994.

(2) For applying subsection (1) to a layered arrangement of community titles schemes, the body corporate for the principal scheme for the arrangement, and not the bodies corporate for the community titles schemes that are subsidiary schemes for the principal scheme, is taken to be the owner of scheme land for the principal scheme.

(3) However, for the Dividing Fences Act 1953, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land.

Subsection 258(3) refers to community title schemes generally and therefore applies to standard format plans. It provides that the dividing fence laws which apply to adjoining areas of land, apply also to community title schemes. I shall deal separately with each of the three possible situations regarding dividing structures in a community titles scheme, namely dividing structures between the following: adjoining lots; a lot and the common property; and the scheme and neighbouring land.

Before determining responsibilities, in this scheme the dividing structures include paling fences and retaining walls, and it is necessary to determine the status of each under the Dividing Fences Act.

The definition of fence in section 6(1) of the Dividing Fences Act, states -

"fence" means a structure of posts and boards, palings, rails, galvanised iron, metal, or wire, or a wall, ditch, or embankment, or a combination of any of these, enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence, but does not include a wall which is part of a house or other building.

The definition includes –

• palings - and therefore the paling fences atop the retaining walls, so far as they define boundaries, are caught by this Act; and

• wall, ditch, or embankment - which description encompasses what is commonly called a "retaining wall", and therefore, from the description and photographs supplied, appears to apply to the retaining walls on the western boundary, and that near Lot 41.

The one further matter regarding the retaining walls that needs to be considered, is the fact that the retaining wall on the western boundary is sited some 30 cm into the adjoining lots. It is my view that, despite the retaining wall being located a small distance from the scheme boundary, it must be considered to be part of the dividing fence. Both are an integral part of the dividing structure between the scheme and the adjoining property. This is no more obvious than in the reported condition of the paling fence, where the reported movement in the retaining wall has caused "the perimeter fences above the wall to move." The likely reason as to why the retaining wall extends a small distance beyond the boundary line (as defined by the paling fence) is to provide a more stable base for the fence and perhaps for easier maintenance of the fence (repairs, replacement and perhaps painting). However, regardless of the true reason, in my view the 30cm separation does not distinguish the wall from the fence; it is all part of the dividing structure.

I shall now return to determining the maintenance responsibility for the fence (including retaining wall) in each of the three possible situations, in terms of the Dividing Fences Act.

Scheme and neighbouring properties - Under sub-section (1) above, the body corporate is taken to be the owner of the scheme for the purposes of the Dividing Fences Act 1953. Accordingly, for both building format plans and standard format plans, the maintenance of the scheme perimeter fence is a shared responsibility between the body corporate and whoever is the neighbouring owner the other side of the common boundary line. The significance of this subsection for a standard format plan is that where an owner’s lot boundary coincides with the scheme boundary, it is the body corporate which maintains the fence (in shares with the neighbouring land owner) and not the lot owner. That is, the body corporate is solely responsible for the maintenance of a fence where the fence is the dividing structure defining the scheme’s boundary.

Two lots – Under sub-section (3), the dividing fence laws apply to adjoining lots in a community titles scheme in the same manner it applies to adjoining land. That is, where there is a common boundary between two lots then the owners of the two lots share the maintenance of the boundary fence (including any retaining wall equally.

A lot and common property – In a similar manner to "Two lots" above, where a lot boundary borders with common property, then the owner and the body corporate (as the legal entity responsible for common property) equally share the maintenance of the fence (including any retaining wall), assuming the fence is the dividing structure defining the boundary.

In summary, I have declared the law as to responsibility for fence (and retaining walls) maintenance in all three possible situations in a community titles scheme. For the reasons given under "Application and Submissions", I have only made a general declaration as to responsibilities, and not made a particular finding concerning either the western scheme boundary fence or that separating Lot 41 and the common property. The body corporate can investigate the circumstances of the dividing structures and make its own decisions in the matter – if it is unable to, or an owner wishes to dispute the decision, then a further application can be made, however any such application must contain all of the appropriate information I have earlier referred to.