Logandale Lakes [2005] QBCCMCmr 34 (21 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0519-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23706
Name of Scheme:	Logandale Lakes
Address of Scheme:	8 Peninsula Drive LOGANHOLME QLD 4129

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

the body corporate

I hereby order that, within three months, Fahey Thaisz, the owner of lot 26 (respondent) must have replaced the gate to her lot with the original gate or another gate that is of the same appearance as the original gate. The replacement gate must be in good condition and the replacement of the gate must be performed in a workmanlike manner. I further order that if the respondent does not replace the gate as required by this order then the body corporate may authorise an appropriately skilled person to replace the gate. The body corporate must give the respondent at least 7 days’ notice identifying the person authorised to replace the gate and stating the time at which that person is authorised to enter the respondent’s lot to the extent necessary to replace the gate. The respondent must pay the body corporate’s reasonable costs of replacing the gate within one month of being given an invoice setting out those costs. The replacement gate must be in good condition and the replacement of the gate must be performed in a workmanlike manner.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0519-2004

"Logandale Lakes" CTS 23706

Application

Logandale Lakes Community Titles Scheme (Logandale Lakes) is a 76 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a group title plan (now known as a standard format plan).

This application is by the body corporate (applicant) seeking orders against Fahey Thaisz (respondent). The body corporate claims that the respondent has removed the gate at the entrance of her lot and replaced it with a gate of a different style. A diagram provided with the application indicates that this gate forms part of the fence that separates the respondent’s lot from the common property driveway and entrance area.

Decision

Replacement of the gate

The gate in question forms part of a fence that separates the respondent’s lot from common property of the body corporate. It is a structure that the lot owner and the body corporate would have a shared obligation to maintain (Act 311, Accommodation Module 108, 119). The respondent should not have made changes to the gate without the consent of the body corporate.

Further, Logandale Lakes has a by-law that states that the body corporate wishes to retain conformity as to style and colour of the buildings on the scheme land and to maintain a high standard in relation to the external appearance of buildings on the scheme land. This by-law states that "An owner or occupier of a lot shall not alter the external appearance of any lot, nor paint any external surfaces of the lot or a building on the scheme land without the prior written approval of the committee" (By-law 38 ).

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)).

In this instance, the respondent says that she was not given any written advice regarding what she can and cannot modify regarding her unit. However, owners are expected to have knowledge of their by-laws and to comply with the legislation. It is not a valid excuse for the respondent to claim that she was not aware that she could not change the gate.

Appropriate remedy

The respondent has said that she is a pensioner and that she wants to keep the wooden gate as she cannot afford the cost of a wrought iron gate of approximately $400. However, the body corporate is entitled to an order that the respondent restores a gate of the original appearance or pays the amount necessary for the body corporate to do this work (Act, 281).

To minimise the inconvenience to the respondent I intend to allow her to arrange for replacement of the gate herself and to allow her a period of three months in which to have the gate replaced.

However, if the respondent does not arrange to have the gate replaced herself then the body corporate will be authorised to engage a suitably skilled person to restore a gate of the original appearance and the respondent will be required to reimburse the body corporate for its reasonable costs within one month of being provided with an invoice describing those costs. The body corporate is entitled to authorise someone to enter the respondent’s lot to the extent necessary to perform this work but should provide seven days’ notice (Act, 163).

Order

For these reasons, I make the order above.