Greenlands [2005] QBCCMCmr 309 (8 June 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Alan and Joy Stewart, the owner of Lot 32

I hereby order that within two (2) months of the date of this order, Andrew Kahler the owner of Lot 33 must, at his own expense:

1. Remove that part of the garden constructed on the common property by Andrew Kahler (Kahler garden) that is adjacent to the garden on or near the eastern boundary of Lot 32 (Stewart garden) to provide at least one metre clearance between the Kahler garden and the Stewart garden.
2. Lay lawn to reinstate the part of the common property from which the Kahler garden has been removed to its previous condition.

I further order that Andrew Kahler may only relocate that part of the Kahler garden removed in accordance with this order to another part of the common property provided the body corporate provides consent in accordance with By-Law 7 of the scheme By-Laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0151-2005

"Greenlands" CTS 21006

APPLICATION

This application is by Alan and Joy Stewart, the owner of Lot 32 (applicants) against the body corporate and Andrew Kahler, the owner of Lot 33 (respondent). The applicants are seeking the immediate removal of a garden which has been constructed on the common property.

JURISDICTION

"Greenlands" Community Titles Scheme 21006 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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:

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to Mr Kahler, and the body corporate manager for distribution to the owner of each lot (excluding Mr Kahler and the applicants) and the committee. A submission was received from Mr Kahler, the committee and a number of lot owners. The applicants made a written reply to submissions under section 244 of the Act.

DETERMINATION

Mr Kahler has constructed a garden on the common property adjacent to a garden which the applicants claim is on Lot 32.

The applicants have stated that the garden constructed by Mr Kahler "severely restricts access to my property", is dangerous as is evidenced by the fact that Mrs Stewart has tripped over it. The applicants have shown that they wrote to the committee on 26 February 2005 stating that the garden was constructed soon after the Annual General Meeting where it was resolved not to permit further encroachments onto the common property by lot owners.

Mr Kahler has submitted that many owners and occupiers have planted flower beds, shrubs and trees etc on the common property without body corporate approval, and without any objection. Mr Kahler states that the applicants have planted trees and shrubs on the common property and that the garden adjacent to the disputed garden is partially on the common property. He is not aware of any other incidents associated with the garden. He submits that previously there was a flower bed, a large palm tree surrounded by rocks and a mowing strip on the area of common property on which the disputed garden is located. Mr Kahler states that he removed the tree as he considered it to be a hazard to surrounding properties. He states that the access to the applicants’ garden is virtually unchanged and that as the area is lit at night, it does not represent a hazard to users of the common property.

The committee and a number of lot owners made a submission in response to the application. The committee and a majority of these submissions did not support the application.

Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. Section 167 of the Act provides the basic rule governing an owner’s use of common property and provides, quote:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

In addition, the body corporate may make by-laws for the scheme regulating the use and enjoyment of the common property (section 169, Act). The by-laws form part of the community management statement (CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

The CMS for this scheme contains By-Law 4 (Obstruction/Nuisance), and By-Law 7 (Damage to Lawns etc on Common Property) which are relevant to this issue. However, despite the existence of By-Law 7, historically the body corporate seems to have permitted lot owners and occupiers to make use of common property without any written consent. Subsequently, it would seem that there has, to a certain extent, been uncontrolled use of the common property by lot owners and occupiers for horticultural related purposes. As highlighted by the above legislative references, the basic functions of the body corporate include the control, management and administration of the common property which is owned by all lot owners as tenants in common and the enforcement of the by-laws which are binding on lot owners and occupiers.

The applicants have referred to a resolution at the Annual General Meeting dated 30 January 2005. However, the minutes of this meeting indicate that it was noted under "General Business" that "owners property is not allowed to be located on body corporate common areas". I do not consider that such a reference is binding as it was noted under "General Business" and was not a motion on the agenda of the meeting. I also do not consider that the note can be relied on to any extent as it would seem that only a small percentage of owners were present in person and, in my view, the note is inconclusive as to its meaning.

After giving consideration to all of the issues raised in this matter, for the following reasons I have not ordered that the entire garden constructed by the respondent must be completely removed:

However, I consider that Mr Kahler has used common property in a manner which does, to a certain extent, interfere with the applicants’ use of their lot and the common property. The previous planting referred to by Mr Kahler was not directly adjacent to the applicants’ garden due to the existence of a mowing strip. Therefore, the applicants had unimpeded access to their garden. In my opinion, the applicants’ access should not have been affected by the construction of the new garden. It is not relevant that the applicants’ garden may or may not be on the lot or the common property. Many lot owners, including Mr Kahler have gardens on the common property. The applicants’ right to access this garden should not have been affected by the construction of the new garden, and there is a potential danger involved in now accessing the garden. I do not consider that it would be safe or practical for them to have to access a part of their garden by standing on the new garden. Mr Kahler has submitted that historically plants have been placed in this area to beautify the area around a power box and to deter the parking of vehicles on this part of the common property. These reasons do not support the outcome that has resulted in the new garden being directly adjacent to the applicants’ garden. A possible reason for this could be to remove a requirement to mow the grass on this area. However, I consider that the placement of the new garden by Mr Kahler against a part of the applicants’ garden does unreasonably interfere with their right to access this part of the common property. Consequently, I have ordered that Mr Kahler must remove that part of the garden on the common property adjacent to the garden on or near Lot 32 to provide at least a one metre clearance between the respondent’s garden and the applicants’ garden. The common property cleared must be reinstated with lawn at the cost of Mr Kahler and thereafter must be maintained by the body corporate in accordance with its legislative obligation to maintain common property in good condition. If Mr Kahler wishes to relocate that part of the garden removed in accordance with this order, then he should only do so with the proper approval of the body corporate in accordance with By-Law 7.

I would strongly suggest to the body corporate that it administer, manage and control the common property by initiating appropriate action with respect to the issue of owners and occupiers constructing gardens, and planting shrubs etc on the common property. The common property is owned by all owners and in the absence of a relevant exclusive use allocation, a particular owner or occupiers does not have the right to make use of the common property as a garden without body corporate approval in accordance with By-Law 7. Therefore, the body corporate should begin managing this issue which may include determining a plan which could involve informing owners and occupiers of their rights and obligations with respect to this issue, including the requirement that approval must be obtained before any changes or planting is carried out, and also dealing with the existing plantings on the common property.

Number of Scheme:	21006
Name of Scheme:	Greenlands
Address of Scheme:	35A Grevillea Drive STEPHENS 4227

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Greenlands [2005] QBCCMCmr 309 (8 June 2005)