7 Oaks South [2004] QBCCMCmr 32 (19 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0808-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10266
Name of Scheme:	7 Oaks South
Address of Scheme:	7 Campbell Street SORRENTO QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lois Joy KENNEDY, as the owner of Lot 3,

I hereby order that within three (3) months of the date of this order the body corporate must engage a suitably qualified tradesperson to replace the wooden retaining wall adjacent to the exclusive-use courtyard area at the rear of Lot 3, with a like retaining wall of timber in a style suitable to the owner of Lot 3 and suitable for the purpose, and for it to be completed within that time.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0808-2003

"7 Oaks South" CTS 10266

This is the final order to an application by Lois Kennedy of Lot 3 who has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That a new treated timber retaining wall and steps replace the collapsing timber structure that exists on common property at the rear of my home. I request to be involved in the supervision of the contractor’s work, as it will extend over my exclusive use area, and, immediately to the rear of my lounge room."

The applicant has also made application for the following interim order and on 19 December 2003 the following Interim Order 808-2003 was issued –

I hereby order that the body corporate must not implement or otherwise act upon the resolution of the body corporate committee passed at its meeting held on 20 October 2003 for the repair of the retaining wall and steps at the rear of the courtyard for Lot 3, pending determination of the final order to this application.

I further order that this interim order has effect for a period of three months from the date of this order.

JURISDICTION:
In the "Statement of Reasons" (hereafter "the Reasons") to the interim order I found jurisdiction existed to proceed to determination, in the following terms –

This is a dispute between an owner (the applicant Kennedy), and the body corporate (the respondent), concerning the manner of replacement of a retaining wall and steps situated at the rear of the applicant owner’s lot and exclusive use courtyard. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
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) of the Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (secretary) for distribution to the following parties: the body corporate committee; all of the other owners; and the Body Corporate Manager, Strata Solutions, with an invitation to respond to the disputed matter raised in the application.

Only two owners, namely Evan Johnston and Virginia Kennedy, made submissions, both being in support of the application. Neither the body corporate committee nor the Body Corporate Manager made a submission.

In my previous Reasons the brief facts of the matter were given as follows –

The applicant states that the committee resolved at its meeting on 20 October 2003 to expend up to $2,000 to repair (including replacement) the deteriorated wooden retaining wall adjacent to the courtyard area of the applicant’s Lot 3. While the resolution does not specify that the wooden wall be replaced with a concrete block one, the applicant states that on 7 November 2003 she was advised by Pauline Hendry (Resident Manager) that the committee was considering using concrete blocks, though I note that the quotes of $1,814 and $1,900 (both plus GST) in the Resident Manager’s report were for a timber wall.

The applicant states that because of the position of the wall, and its prominence being a metre in height, she is the only owner that sees it and therefore affected by it. She believes a block wall will be unattractive and will project heat into her courtyard.

DETERMINATION:
"7 Oaks South" was registered as a building units plan (now termed a building format plan) on 19 May 1982 and comprises 39 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997.

At the outset I would say that I am surprised that neither the committee nor the Body Corporate Manager made a submission in the matter – this is unusual behaviour in a dispute brought against a body corporate and, in the absence of other contrary evidence, must be taken as not contesting the applicant’s grounds. In this instance, while the minutes submitted by the applicant clearly show that the committee at its meeting on 20 October 2003 resolved that the retaining wall and steps in front of Unit 3 be repaired at a cost not exceeding $2,000, there were other statements by the applicant that could have been clarified if a submission had been made. In particular, the alleged statement by Pauline Hendry that the committee was considering a block wall rather than a replacement wooden wall, and what materials/style the quotes for $1,814 and $1,900 involved. However I am still able to make a determination on the evidence before me; had that not been the case I would have required information be made available under powers available in section 271 of the Act, or conducted a teleconference with the parties.

The body corporate has assumed responsibility for rectification of the wall and steps, in recognition that the wall lies on common property bounding the applicant’s exclusive use courtyard. I note from the body corporate’s community management statement that under By-law 21 and Sketch A, the owner of Lot 3 has exclusive use of the area of common property adjacent to the rear (northern) boundary of the lot, extending back 4 metres. I am unsure whether the log steps are situated within the exclusive use area and therefore the responsibility of the applicant owner, or whether they lie on common property beyond the 4 metre boundary line and therefore the responsibility of the body corporate.
Accordingly, my order is in respect of the wall only – it will be a matter between the body corporate and the applicant owner to determine liability for the log steps according to the location of the steps. Of course if the body corporate has replaced steps for other owners when repairing their walls, then it must treat the applicant owner no differently.

I understand that a representative for the Body Corporate Manager stated that as the wall was common property and was therefore a body corporate responsibility, its rectification was of no concern to the applicant. That is not the case for the following reason.

Section 35 of the Act provides that owners have a general proprietary right over the common property as tenants in common, however sections 94 and 152 impose on the body corporate the duty to administer, manage and control the common property and its assets, but must do so reasonably and for the benefit of lot owners. While the principle "for the benefit of lot owners" has a general application, when the body corporate is considering a maintenance action that impinges adversely on a particular owner or group of owners then the principle must be carefully considered as to its application. The term does not require that body corporate actions must benefit all owners, nor does it mean that the course of action benefiting the majority of owners must necessarily be followed. Further, it may require the body corporate to take a course of action that is for the benefit of the minority of owners, even a single owner, where the balance of the benefit of the majority is outweighed by the disadvantage to the minority.

This principle was set out in my Order 325-95 of 6 March 1996, being made as Referee under the Building Units and Group Titles Act 1980 ("the BUGT Act"). Although the legislation is different, the relevant provisions are either identical or similar as will be seen in the BUGT Act references below. While the application concerned the removal of a tree outside the applicant’s lot, it applies equally to situations where an owner has a "singular interest" in a particular part of the common property because of its location, such as in this instance where the relevant portion of retaining wall lies directly adjacent to the applicant’s rear courtyard and is virtually of no interest to other owners as to its composition or appearance as it cannot be seen by them.

"Section 27(3) of the (BUGT) Act requires that the body corporate "shall do all things reasonably necessary for...the control, management and administration of the common property". Section 37(1)(a) then provides that it must carry out this duty "for the benefit of the proprietors". A part of that duty under section 37 includes the establishment and maintenance of suitable lawns and gardens.

The general duty to act "for the benefit of the proprietors" does not mean that all actions of the body corporate will be for the benefit of all proprietors; there are times when actions for the benefit of the majority will have to be followed even though it will mean an inconvenience or even a disadvantage to other proprietors.

However, there are other situations where the duty protects a minority. For example, 99 out of 100 proprietors may wish to construct a barbecue setting on the common property to be located under the window of the remaining proprietor. Even though a great majority of proprietors are in favour of the action, the detriment to be suffered by the affected proprietor (noise, smoke and smells) offends against his right to the use and enjoyment of his lot which other occupiers cannot impinge upon by using the common property in a manner which interferes unreasonably with that right in contravention of section 51 of the Act.

Each matter needs to be looked at individually in regard to its own circumstances and the most equitable action taken in the interests of proprietors.

In relating this duty to the affect on proprietors of trees on the common property, my opinion is as follows. If a tree provides a singular benefit (eg shade, privacy) to a proprietor and neither its existence nor removal affects others, then the body corporate should largely follow the wishes of that proprietor in retaining it; or if it causes a singular nuisance then remove it."

Accordingly, while it is true that the rectification of the wall is the responsibility of the body corporate, the circumstances are such that the body corporate needs to consider the interests of the owner of Lot 3 when discharging its responsibility.

In that regard, from my viewing of the photographs of the courtyard, the steps and wall, and the adjacent common property landscaping, and from the comments of Johnston in his submission, it is my view that the timber retaining wall was likely a deliberate choice by the developer as part of the creation of a rustic, wooded setting for owners to enjoy their courtyards. Replacement of the wooden wall with a besser block one would significantly spoil the ambience of the setting. There is no evidence that the cost to the body corporate for a wooden wall (which incidentally should be constructed using CCA or similarly treated timber to deter white ant and insect infestation) would be significantly more than a besser block one – the applicant states that three tradesmen have told her that the opposite is the case and a block wall would be dearer.

Accordingly, in my view the body corporate must follow the wish of the owner of Lot 3 and only replace the wooden wall with a like structure.

Also, it is common ground between the applicant and the body corporate that the wall is in disrepair and needs to be replaced, and certainly the photographs confirm this. The body corporate committee needs to implement its decision of 20 October 2003. As I will be making an order that the wall can only be replaced with a wooden wall, I will extend the order to include a time period in which the body corporate must act to replace the wall. The tenders obtained may be still available or fresh ones may need to be obtained as necessary.