Barklya [2004] QBCCMCmr 388 (10 August 2004)

Last Updated: 30 September 2005

REFERENCE: 0036-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18592
Name of Scheme:	Barklya
Address of Scheme:	Barklya Close, KAMERUNGA, QLD, 4878

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate,

I hereby order that within three (3) months of the date of this order Stephen James GADD, a co-owner of Lot 3, must remove completely the fences erected by him on or near the boundaries between Lot 3 and Lot 2, and Lot 3 and Lot 4, unless within that time period he has completely modified the fences (including removal of any part) in accordance with the requirements of the body corporate in applying the relevant by-law and Technical Manual provisions, being By-law 11(4) and Section 5.1 of the Manual, and to the satisfaction of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0036-2004

"Barklya" CTS 18592

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

"In complying with the body corporate by-laws and technical manual the outcome sought by the body corporate is to have the fence removed or brought into regulation with the technical manual and by-laws."


JURISDICTION:
This is a dispute between the body corporate (the applicant) and an owner (the respondent Stephen James GADD, a co-owner of Lot 3), concerning the respondent erecting a fence on the boundaries of his lot that the body corporate alleges does not comply with the requirements for fencing as set out in the Technical Manual referred to in By-law 11 "House Construction" of the body corporate by-laws. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

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 this 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 or 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 Stephen Gadd and to all other owners with an invitation to each to respond to the matter of dispute raised in the application. The respondent Gadd made a submission opposing the application. Only one other owner made a submission, Simon Bridge a co-owner of Lot 7, who supported the application. The applicant body corporate did not view the respondent’s submission in order to lodge a reply (see sections 244 and 246 of the Act).

I note that there is a history to this matter involving this office which has delayed the resolution of the dispute. I apologise for the confusion and delay in the handling of this matter, including letters from this office that did not assist the body corporate in understanding the process. Because of the volume of applications reaching this office, there is an unfortunate delay of 6 - 7 months in the issuing of orders and that explains the current delay in dealing with this second application lodged on 24 January 2004.

I would add that Gadd asked that his previous submission to the first application (Application No. 440-2003) be regarded as part of his submission to this application, and I accept that. I would add that I have read all of the file relating to the first application.

The brief facts of the matters are as follows.

By letter dated 9 December 2002 the Body Corporate Manager, Cairns Body Corporate Management ("CBCM") informed Gadd it was aware that had cut down some trees near Lot 3 and intended erecting a fence that would breach the by-laws – his attention was drawn to 5.1 of the Technical Manual – and he needed prior approval of the body corporate. Gadd made a written application the following day for a fence between his lot and adjoining Lots 2 and 4. The reply by CBCM the next day 11 December refers to fencing already under construction. At an extraordinary general meeting held on 8 January 2003, the body corporate refused permission (voting 5:2) for Gadd to erect the proposed fence – Gadd was present at the meeting.

Following some discussions and correspondence, and a resolution of a further extraordinary general meeting held on 18 March 2003 to enforce the by-laws against Lot 3 (Gadd), on 20 March CBCM wrote giving Gadd 14 days to agree to have the fence comply with the By-law manual requirements – he responded in writing on 31 March that he would so alter the fence. By letter dated 2 May CBCM again wrote to Gadd that despite his assurance, the fence still did not comply with the By-law manual. Two notices of contravention of a by-law were served on Gadd (and his co-owner) and an application (the first) was lodged on 1 July 2003, followed by this one on 21 January 2004.

Following the mediation conference conducted by the Dispute Resolution Centre of the Department of Justice and Attorney-General, the CBCM representative (Jessie Richardson) presented a letter from Gadd dated 4 November 2003, to a body corporate meeting apologizing for past actions and asking that the fence be approved (with some modifications made), offering to convert a 10 metre section from closed to open paling if necessary over his agreed that Gadd write a letter to facilitate resolution of the problem which CBCM would present to the impending .

At a further extraordinary general meeting held on 23 February 2004, the meeting considered Gadd’s letter and rejected his proposal, resolving to make a further application for the dispute to be adjudicated.

In his later submission, Gadd states that the body corporate recently approved a 2 metre high cement block rendered fence for Lot 9.


DETERMINATION:
"Barklya" was registered as a group titles plan (now termed a standard format plan) in 1991 and comprises ten lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

The relevant authorities relied on by the body corporate in the contravention notices served on the respondent, and in grounding this application, are By-law 11(4) and Technical Manual Section 5.1 which follow.


By-law 11(4) "House Construction" states –

Any application for any approval for construction, alteration, modification, reconstruction or carrying out any improvements or works on any lot shall not be unreasonably withheld so long as :

a) The plans and specifications and the proposed construction, alteration, addition, modification, reconstruction, or improvement or works comply with the Technical manual,
b) The application otherwise complies with these by-laws.

Section 5.1 "Fencing" of the Technical Manual states –

Fencing for security and privacy is limited to courtyards and pool terraces. The balance of the lot is to remain unfenced. Fencing is to be to a maximum height of 1500 mm with open panelling, manufactured in timber and painted as identified in section 4.3.

It is quite clear that Gadd not only acted contrary to the express provision in 5.1 concerning fences contained in the Technical Manual referenced by By-law 11.4, but acted in the face of the warning by CBCM in its letter of 9 December 2002 that these provisions existed, in particular that fences could not be higher than 1.5 metres, and that prior permission of the body corporate was necessary. Later, though he undertook to alter the fence to comply with those provisions he failed to do so.

Section 94 of the Act provides that the body corporate must, amongst other things, "enforce the community management statement (including any by-laws for the scheme), and must do so reasonably. Section 169(1)((b)(i) of the Act provides that the body corporate may make by-laws for the "regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme." The regulation of the placement of fences, the materials, and the height, all come within the scope of this provision. This provision was apparently included because of the character of the scheme, being one located in a rainforest area (park) with owners to collectively have (through the by-laws and Manual) an appreciation of the need for fauna to have as few restrictions as possible in their movement through the scheme area.

These restrictions on construction and other activities would have been evident to any prudent purchaser conducting a search of the public records of the Titles Office (by-laws) and the body corporate (Technical Manual). Regardless of whether or not they acquainted themselves with these documents, incoming owners are bound by them immediately upon acquiring title to their lot (see section 59(2) of the Act).

In that regard I note that Gadd presents an argument that he has a small child and wants to protect him and any visiting children from a nearby river. He also argues that the fences provide privacy (the owner of Lot 4 reportedly agrees). What the respondent is arguing is that the by-law provisions should be relaxed to meet the fence he has built – that ignores the obvious counter that he purchased into a scheme with certain rules and should have purchased elsewhere if they restricted his future plans.

The body corporate has not been implacable in refusing approval of the fence; it has offered accommodation in a number of areas which the respondent Gadd finds unacceptable, though he has modified the height of the fence in certain areas, removed the fence back from the front boundary (roadway) and removed some palings to make sections more open (though has evidently placed them on the reverse side of the rails in parts).

I do not consider that the body corporate has been unreasonable in its demands of the respondent, especially in view of the respondent’s construction of the fence without any authority. In regard to the respondent’s report of an approved 2 metre fence on Lot 9, that is separate matter that he may action if he so wishes, but, if true, is a departure from the rules though it is not in a similar position to the respondent’s fences but borders the roadway.

Accordingly, I have made an order that the respondent Gadd remove the whole of the fencing unless with the period of three months he has altered the fences to comply with the conditions set out in the by-laws and the Technical manual.