Heritage Village [2004] QBCCMCmr 159 (24 March 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ross Stuart JACKSON, as a co-owner of Lot 5; John Allen and Charmaine M the owner and an occupier of Lot 10 respectively; Adrian CHURCH, occupier of Lot 12; Ayumi CHANDLER, the owner of Lot 13; and others.

I hereby order that as soon as possible, but no later than four (4) weeks from the date of this order, the body corporate committee must engage the services of an appropriately qualified arborist to inspect all mature trees growing on the common property and give a written recommendation on what maintenance treatment was reasonably necessary (whether removal, lopping or planting future replacement frees) in respect of those frees so as to comply with the relevant regulations of the Cairns City Council and make the trees reasonably safe for persons using the areas beneath the trees.

I further order that if a Cairns City Council officer with the appropriate knowledge and authority to give a recommendation on behalf of the Council as to what treatment each of the relevant frees must receive to comply with the Council regulations and make the trees reasonably safe for persons using the areas beneath the trees, then any such recommendation obtained in writing may be relied on by the body corporate as satisfying the above order.

I further order that within one (1) month of receiving the written recommendation under either of the above orders, the body corporate must take steps to implement the recommendation, including in a maimer that is most appropriate for the scheme where there is a discretion for particular trees.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0814-2003

"Heritage Village" CTS 18665

This is the final order to an application by the following persons: Ross Jackson of Lot 5; John and Charmaine McBrearty of Lot 10; Adrian Church of Lot 12; Ayumi Chandler of Lot 13; and others (see later), who have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

The applicants also made application for an interim order and the following Interim Order 814-2003 was issued on 24 December 2003,

Under this heading in my statement of reasons to the interim order I found jurisdiction existed in the following terms -

Section 2 76(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 --

(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 2 76(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
Because of the urgency of the situation where trees may have been lopped or cut down on the day immediately following the end of the Christmas/New Year office shutdown, namely the 2^nd January 2004, when there would be insufficient time to restrain service providers/tree-loppers engaged to commence work on that day, no submissions were sought from the respondent or owners. Instead, I conducted a teleconference between one of the applicants (Church) and, in the absence of the chairperson Bastick, committee member Alan Griffiths. The outcome of that teleconference was my interim order to halt all work on the trees until the facts of the matter, and the body corporate’s responsibilities under legislation (including the relevant Cairns City Council regulations and guidelines concerning trees) were known, and all owners had an opportunity to make a submission in the matter.

Accordingly, in accordance with section 243 of the Act on 5 January 2004 a copy of the application was provided to the body corporate (committee), the Body Corporate Manager, Body Corporate Services Pty Ltd ("BCS"), and to all owners, with an invitation to make a written submission to the application.

Prior to this invitation being sent, the committee faxed a document to this office on 29 December 2003 in response to the interim order. While not invited at that time, I have accepted it as a submission to the application - I will comment on the content of this submission later. A further document, from Ellen Griffiths, was faxed to this office on 24 December 2003 apparently as a response to my teleconference with her husband Alan earlier that day (see later). I also accept that as a submission though it has been largely made redundant by further submissions from Ellen Griffiths, one emailed on 19 January and the other on 2 February 2004.

Apart from these, submissions to the application were received from the following persons: Perry of Lot 9; and jointly Sacagio of Lot 14, Anderson (nominee) of Lot 30 and Warnock of Lot 36, along with a number of attachments.

I do not intend to repeat my reasons for the interim order - owners may read them for themselves by accessing the body corporate records.

In regard to the submission by the committee, it states that there was no secrecy in the steps it took to have trees lopped which included -

The above are the major points by the committee, though there are others I need not list out here. In its summary of the dispute, the committee stated that it considered the steps it had taken met with the conditions set out in my interim orders and it stated that unless it heard to the contrary from this office by the lime work on the frees was to commence, then it would assume that the Commissioner was in accord with the actions and the work would proceed.

This did not meet the requirements of the interim order, particularly the first and second orders (see above quote of orders). Nor did it allow owners to respond to the invitation and make a submission to the application, in abrogation of their rights under the requirements of natural justice to be heard in the dispute. The legislation provides for significant penalties in the event of an interim order not being complied with (see section 288 of the Act). The response by the committee did not satisfy the terms of the interim order and the decision by the committee to proceed with the tree work on 2 January was in breach of the order and left the body corporate open to a considerable fine, apart from the possibility of them being personally joined in any action.

In the joint submission by three owners they make the following points concerning the committee’s submission and its tree maintenance process. The notice to owners prior to the annual general meeting referred to by the committee is nothing more than the tender document submitted by the gardener in support of its application; it did not contain a lopping plan. The Residents Information Sheet may well have allowed for complaints to be made, in writing, but with no notified plan for owners to assess then the complaint process was useless. Residents only became aware of what lopping was proposed by verbal notice given in early December, for example, the owner of Lot 10 was informed on 8 December that the adjacent raintree was to be completely removed. The owners also said in their submission that the previous free maintenance process in place for some 10 years gave owners a real opportunity to take part in the initial determination of what frees were to be lopped, and the tagging of frees for lopping allowed time for complaints to be lodged and reviewed.

In contrast, these owners have submitted statutory declarations by a number of persons, including residents, which suggest that the committee, or at least its chairperson at the time, intended to make the decisions on free maintenance without consulting owners. They also point out that though the committee claims the gardener engaged an arborist to advise on tree lopping and the arborist’s recommendations dictated its lopping plan, there was no report of this circulated to owners. They also submit that the information provided by John Van Grieken was selectively used by the committee, for example, it wished to remove particular raintrees immediately when the advice was properly that replacement frees should be planted and the raintrees then removed in some 2 years when the replacements would be at a stage where their shade benefit would develop quickly.

The scheme, as described by Ellen Griffiths, comprises 24 re-located Queenslander style houses and four blocks of 4 townhouses each, located on approximately 2.5 acres. The frees form a significant part of the landscaping and are considered essential to the "Queenslander" character of the scheme. Disagreement over the tree maintenance decisions of the committee, and a further decision by the committee to ignore the terms of an adjudicator’s interim order, led to an ugly incident on 2 January when workers arrived to implement the committee’s decisions to cut and lop trees.

I will not go further into that incident or discuss allegations made regarding the behaviour and comments of certain committee members in statutory declarations lodged. An airing of these matters will not assist in the resolution of the dispute which, because of the recent replacement of committee members, should now be able to be resolved promptly. I am aware of this change in committee through an enquiry by a staff member of BCS (consequent upon the approach of the end of the interim order period) which led to my conducting a teleconference with applicant Adrian Church and Noela Robinson (for the respondent body corporate) on 22 March 2004. I was informed that all of the previous committee members were ousted and (from a further call by a staff member to BCS on 23 March) the committee now comprises new members.

I do not know the composition of the new committee, however as the spill of positions was in response to dissatisfaction over the previous committee’s maintenance decisions and subsequent actions, I assume the new members will now be considering a fresh free policy. During the teleconference, Church advised that Van Grieken had recently indicated he would be willing to assist the body corporate by identifying those frees within the scheme that required attention and recommending the alternative treatments available to the body corporate within Council policy. That process follows the alternative available to the body corporate in the third of my interim orders (which I have repeated in my second final order).

It would appear that members of the body corporate and residents of the scheme have generally resolved the dispute themselves; however it is still necessary that I make a final order in the matter however it will reflect the current situation.

In community title schemes there will always be disagreement over how communal matters should be done, whether it be maintenance, colour schemes, or how garbage is stored and disposed of. Other disputes can involve more serious and costly matters. The key to decision making within the scheme is, especially for contentious matters, to consult with interested and relevant parties, obtain expert guidance where necessary, and make transparent decisions.

Number of Scheme:	18665
Name of Scheme:	Heritage Village
Address of Scheme:	404 McCoombe Street MOOROOBOOL QLD 4870

•	Before the annual general meeting on 25 June 2003 it gave notice to owners which "contained an outline by Essential Lawn and Garden Care (the gardening contractor) of planned gardening projects within the complex" (copy of "notice" attached).
•	It circulated a Residents Information Sheet to owners on 14 August 2003 outlining the gardener’s duties and directing owners to put requests in writing for it to consider (copy attached).
•	The gardener "engaged the services of an independent arborist and based upon the recommendations of the aborist the plan for tree lopping and removal within the complex was developed." Also, the advice of John Van Grieken (Council environmental officer) was obtained (copy of email advice attached: NOTE - a copy of this same advice was submitted with the application).
•	The committee also sought the advice of an ABC gardening expert, Neil Hughes, who allegedly confirmed that raintrees are not suitable for the location as it has an aggressive root system.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Heritage Village [2004] QBCCMCmr 159 (24 March 2004)