Venice Place [2004] QBCCMCmr 449 (22 September 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Sebastiana Leotta, the co-owner of lot 4

I hereby order that within 1 month of the date of this order the body corporate shall arrange for the replacement with CCA treated timbers of the damaged eastern most panels of the southern timber fence at the scheme.

I further order that 40% of the cost of the replacement timbers shall be borne by the body corporate and 60% of the cost of the replacement timbers shall be borne by the owners of lot 4, Frank Leotta and Sebastiana Leotta.

I further order that the body corporate’s share of the cost shall be paid from the administrative fund, and if there is insufficient money in that fund to cover the cost, then the body corporate shall fix a special levy as required by section 56(2) of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0177-2004

"Venice Place" CTS 21143

ORDER SOUGHT

The applicant, Sebastiana Leotta, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the body corporate for Venice Place replace timber fence on southern side of Venice Place – boundary fence, as per quote from body corporate managers – Active Body Corporate Management.

JURISDICTION

This dispute is between an owner of a lot included in a community titles scheme and the body corporate for that scheme (section 227(1)(b) of the Act).

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

(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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

BACKGROUND

The scheme comprises 4 lots registered in a group titles plan (now defined as a standard format plan). The scheme is regulated by the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Small Schemes Module)

In the supporting grounds the applicant stated that the timber fence on the southern boundary is approximately 19 years old and palings are falling off. The applicant further stated that she had proposed a motion that the body corporate replaces the fence as part of its maintenance obligations, but the motion was defeated. The applicant expressed the view that this is a security issue, and the fence will ultimately require replacement due to its age. The applicant explained that the lot is occupied by her tenants, who appreciate the privacy afforded by the greenery which is planted on the inside of the lot near the fence. The applicant refuted the allegation that the shrubs planted within her lot adjacent to the fence had caused damage to the fence, and included in her material a copy of a report dated 23 October 2003 from a horticultural consultant. The report noted that the paling fence "was leaning to the south and into the park; soft rot was observed in both the palings and the upper and lower rails of the fence and the structure appeared considerably weakened by this. Although the adjacent hedge was growing against the fence it was not pushing it. It is probable that the fence is leaning as a consequence of the weakened structure and that this would be a problem even if the vegetation was absent."

All owners were invited to respond to the application. A joint submission was received from the other three owners. These owners expressed the view that the fence is in a satisfactory condition and does not need to be replaced at this time. However, they conceded that some damage had been done to a section of the fence, but attributed this damage to the actions of the applicant’s tenants in heaping wet soil against the lower section of the fence. The owners then pointed out that by-law 8 provides that an owner or occupier shall not cause damage to any structure that forms part of the common property, and that by-law 37 allows the body corporate to recover from an owner by way of reimbursement any monies that the body corporate has been obliged to expend to make good damage caused by a breach of the Act or the by-laws.

The applicant replied to the joint submission, and rejected the owners’ assertions, pointing out that there is a hole in the fence at a point where there is no soil or plants.

I have also been provided with a report dated 22 July 2004 from Moir Consulting, Structural & Civil Engineers, in which the following observation was made about the timber fence:

"The deterioration of the southern timber fence is a result of the effects of the garden built against it – both from the load of soil and shrubs and the promotion of dry rot from the constant moisture occasioned by the soil piled against the timber.

As only the two eastern most panels of the fence appear to be affected to any marked degree it is our recommendation that those be replaced whilst the panel towards the western end that has settled be raised to the original level and secured in that position by concreting around the base."

On 13 September 2004 I spoke by telephone with Mr Moir, the author of the report, who advised me that the fence overall is in a reasonably good condition except for the two panels which have been affected by soil and water. Mr Moir further advised that the age of the fence makes it difficult to determine if the timber was originally treated, as the treatment (if done) has probably leached out over time. I asked Mr Moir if he would be prepared to assess the relative contribution from ageing and from the effects of the soil and water to the deterioration of the two panels. Mr Moir stated that he would attribute 60% to the soil and water and 40 % to ageing.

On 16 September 2004 the applicant was invited to respond to the report. The applicant conceded that the fence could be repaired, but expressed the view that it would probably need replacing not long after the repairs had been carried out. She also reiterated her concern that as the fence backs onto a park, security is an issue for her tenants, as is the safety of children and the general public.

DETERMINATION

Section 311 of the Act provides:

owner of lot Z.

The southern timber fence is on the boundary of the scheme land and the adjoining land. Accordingly, the body corporate is taken to be the owner of the scheme land for the purposes of the Dividing Fences Act 1953. Ordinarily, the body corporate and the owner of the adjoining land would be responsible for the cost of maintaining, repairing or replacing, as the case may be, any fence on that southern boundary. However, the evidence before me reveals that the adjoining land on the southern boundary is parkland. In that case, it may be that the owner of that land is not required under the Dividing Fences Act to contribute to the cost of any dividing fence and the body corporate should make appropriate enquiries to ascertain the legal position of that owner.

In addition, an independent expert has found that the deterioration of a section of the fence has been caused in part by the actions of the owners or the occupiers of lot 4. I therefore propose to order that the damaged sections of the fence shall be replaced by the body corporate within 1 month of the date of my order, and that the cost of such replacement shall be borne by the body corporate and the applicant in the proportions of 40/60 (40% by the body corporate and 60% by the applicant.) I further propose to order that if the body corporate does not have sufficient money in its administrative fund, that it shall fix a special levy to cover its share of the cost as provided for in section 56(2) of the Small Schemes Module.

If the body corporate ascertains that the owner of the adjoining land is required to contribute to the cost of the fence replacement, then the body corporate should take appropriate steps prior to carrying out the work to obtain that owner’s contribution, and the applicant’s share of the cost should then be proportionally reduced to reflect that other owner’s contribution.

The applicant also expressed concern in her reply to the fact that Queensland Strata Administration (QSA) had been appointed as body corporate manager on 30 August 2004, but appeared to have commissioned the engineer’s report in July 2004. The applicant questioned the authority of QSA to commission the report at that time, and also questioned whether the cost of the report had been properly authorised as body corporate expenditure. These are matters with which I cannot deal in this application, as the only order sought by the applicant is that referred to above. Should the applicant wish to pursue the matter she would need to lodge a further application to resolve a dispute, but only after she has searched the body corporate records to ascertain what steps were taken by the committee in relation to the matters of which she complains.

Number of Scheme:	21143
Name of Scheme:	Venice Place
Address of Scheme:	44 Venice Street MERMAID BEACH QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Venice Place [2004] QBCCMCmr 449 (22 September 2004)