Dovedale [2005] QBCCMCmr 437 (9 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0201-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21966
Name of Scheme:	Dovedale
Address of Scheme:	30 Ferry Street, NERANG QLD 4211

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

Don and Kathy Stewart, the owners of lot 2 and Eric Mackay, the owner of lot 3

I hereby order that Angela Lee Wilson, the owner of lot 4, is authorised, subject to the specific conditions set out in the Statement of Adjudicator’s Reasons for Decision, to construct a fence at the front of her lot, and to include as part of such fence a gate attaching to the rear boundary fence which gate shall enclose part of the common property of the parcel. I further order that Angela Lee Wilson, the owner of lot 4, is authorised, subject to the specific conditions set out in the Statement of Adjudicator’s Reasons for Decision, to construct a gate across common property at the rear of her lot which gate shall enclose part of the common property of the parcel. I further order that the body corporate for Dovedale, at its expense, shall replace and thereafter maintain the rear boundary fence of the scheme. I further order that the secretary of the body corporate for Dovedale shall be authorised to include a copy of this order and accompanying statement of reasons with any Information Certificate requested by and provided to any prospective purchaser of any lot in the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0201-2005

"Dovedale" CTS 21966

The applicants, Don and Kathy Stewart, the owners of lot 2 and Eric Mackay, the owner of lot 3 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

The outcome sought is the removal of the two fences indicated in pink on the attached plan of the property. A fence with a gate erected for security, marked orange on the plan and lattice divides erected, marked blue on the plan. There is currently a fence with a gate, marked red on the plan.

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

The scheme is a subdivision of 4 lots recorded under a group title plan of subdivision (now a standard format plan). The regulation module applying to the scheme is the standard module. There are no recorded by-laws for the scheme, including no exclusive use by-laws. Consequently, the standard by-laws in the Act, Schedule 4 apply to this scheme.

After completion of submission and reply processes, it was clear to me that issues in dispute were not clear cut, and that the scheme would benefit from an onsite inspection and meeting. I arranged this and the meeting and inspection took place on Wednesday 3 August 2005. At the inspection and meeting, all lots owners were represented.

The issue as set out in the above stated order sought is not clear. The dispute appears to have come to a head in consequence of the owner of lot 4 wanting to reconfigure certain fences on her lot. This in itself has raised a number of issues including whether the new fences should include gates across parts which are common property, and further who should be responsible for the cost of erecting a new rear boundary fence across the rear boundary of the parcel. The rear boundary fence is in need of replacement due to age and white ant infestation.

The applicants believe that if the owner of lot 4 is allowed to fence off this rear boundary fence then that owner should also be responsible for payment of the cost of that fence.

There are existing fences on common property adjacent to lot 4. These were installed by a previous owner of lot 4 and have clearly been in place for a considerable period of time. The owner of lot 4 wants, and has body corporate authorisation to, re-fence part of her property. What is in issue is whether this fence should extend across part of the common property to the boundary and whether it should include a gate. The particular reason for the fences and gates is that the owner of lot 4 has a dog, which she wants to be able to contain within her lot.

Further, at the rear of lot 4 the owner wants to install a further gate across common property at the boundary of her lot and lot 3. The owner of lot 3 opposes this gate for the reason that he believes that it restricts water flows. The owner of lot 2 has more general reasons opposing the gates, including that they will give the appearance of ownership of part of the common property by the owner of lot 4, and may lead to that owner seeking to prevent other owners / occupiers accessing that part of the common property. The owner of lot 2 is also concerned at the value of lot 4 being increased by this fact.

There is no doubt that there is a parcel of land at the side of lot 4 and at the rear of lots 1 to 4 which is common property. There are no exclusive use by-laws and no owner has the right to exclude any other owner or occupier for any of this common property. Conversely however, no owner has the right to use this common property to cause nuisance or obstruction to any other owner or occupier.

It is clear in my view that the owner of lot 4 is not seeking to exercise rights in the nature of exclusive use in relation to the common property adjoining her lot. Her reasons for wanting fences and gates across common property adjacent to her lot are simply to keep her dog within a confined area. When I raised the possibility of fencing only the yard area included in lot 4, the explanation of why this was not the desired solution was that the dog is currently used to having the larger area given that this area has been fenced for a considerable period of time, and further, by fencing the lot and common property and not simply the lot, the animal is able to have the full run of the area both front and back of lot 4 and is not restricted simply to the front yard of lot 4. The owner of lot 4 indicated that the dog was used to this arrangement and would have difficulties adjusting if it were otherwise.

There have been a number of body corporate resolutions carried in the past giving approval for certain matters, however clearly there is now disagreement as to what was either intended or agreed in these resolutions. The issue is further complicated by the fact that one of the owners who now opposes the fencing off was not an owner when the resolutions authorising the fencing was carried. Clearly at that time a majority was able to be obtained. However it is now clear that this body corporate is divided along two lines: two owners in agreement and two owners opposed. There is deadlock on seemingly all issues.

At the inspection and meeting, I sought for almost 2 hours to mediate solutions which I considered to be just and equitable. It became increasing apparently however that for one owner, there was simply no moving on from one particular issue, and the constant reference back to this issue made resolution of any other issue difficult. Towards the end of the meeting it become increasing clear that I would simply have to impose a decision which I considered to be just and equitable on issues which could not be resolved.

There are two considerations which I find particularly relevant to my determination:

• Firstly there is no evidence in my view that the owner of lot 4 is attempting, via the erection of a new fence, with a gate across common property, to annexed part of the common property and further, would seek to exclude other owners and occupiers from the common property enclosed by the fence and gate;
• Secondly, there are previous resolutions of the body corporate in general meeting authorising the fences and gates.

The fence and gate at the front of lot 4

Should the owner of lot 4 be allowed to erect a new fence and gate at the front of that lot, enclosing both her lot and part of the common property?

The answer to this is yes, but subject to certain qualifications as follows:

• The gate across the common property at the front adjoining lot 4 must not be locked by any means at any time. That it, it must be able to be opened by another owner or occupier within the scheme should they require to use the part of the common property enclosed by the fence and gate at any time.
• The owner of lot 4 for the time being (that is, both the current owner and any future owner of that lot) shall not be permitted to exclude or prevent any other owner or occupier from entering the common property adjoining lot 4 but enclosed by the gate.
• The owner of lot 4 is only entitled to fence in and gate the common property if she returns to live permanently at the lot. If, as is currently the case, the owner of lot 4 is not living permanently at the lot, then there is no requirement for the fence or gate.
• The fence and gate are to be erected and maintained at the expense of the owner of lot 4.
• If and when the owner of lot 4, or any owner of the lot for the time being, advertises the lot for sale, the owner must not represent to the agent for sale, or any prospective purchaser, that the lot includes the area adjacent to the lot known to be common property. The owner should go further and inform the selling agent, and any potential purchasers of the lot of the facts regarding the adjoining common property and in particular, the fact that the lot does not enjoy exclusive use of this area, and an incoming owner will not be able to exclude other owners or occupiers from this area. Even if the owner fails to inform potential purchasers of these facts, this order will become part of the public record which is available to be searched by potential purchasers, so the facts relating to the common property area in question will be available via this mechanism. As well, I recommend that the secretary of the body corporate include a copy of this order with all information certificates requested of the body corporate. That is, if any of the lots are sold and an information certificate is requested by the purchaser, then I intend to authorise the secretary of the body corporate to include with the information certificate a copy of this order. This will bring this matter to the attention of all potential future owners of any lot, let alone lot 4.

The rear gate between lots 3 and 4

The owner of lot 4 further seeks a gate across common property at the rear of the parcel between lots 3 and 4. I heard extensive debate on the pros and cons of this gate, including a particular concern that it might act to prevent the flow or escape of water. The gate is required by the owner of lot 4 to prevent her dog from escaping, at least to the rear of other lots, and the potential for nuisance to other owners or occupiers. I note that approval for this gate has previously been given by the body corporate although there is some debate on what type of gate should be erected.

Again, on balance, I consider the gate should also be allowed, but again subject to conditions; namely that the gate:

• is only to be erected if the current owner of lot 4 returns to live permanently at the lot;
• is to be removed if the owner of lot 4 sells the lot;
• is to be constructed of such materials that allow the free or clear passage of water at ground level. This will require that the gate, or at least the bottom portion thereof, be constructed of materials of open design rather than closed such that it might act like a dam;
• is not to be locked by any means at any time by the owner of lot 4 and the owner of lot 4 shall not be permitted to exclude or prevent any other owner or occupier from entering the common property adjoining lot 4 but enclosed by the gate. That it, it must be able to be opened by another owner or occupier within the scheme should they require to use the part of the common property enclosed by the gate at any time;
• is to be erected and maintained at the expense of the owner of lot 4.

Who should pay for the replacement of the rear fence

I conclude that the body corporate for the scheme, in conjunction with the owner of the adjoining property, should pay for the replacement of the rear boundary fence which is white ant affected and in need of replacement. Whilst I am aware of the arguments which certain owners believe that they should not contribute to the cost of replacement of this fence, I do not agree that those arguments are reasonable. I therefore intend to order that the body corporate shall, at its cost, undertake the replacement of, and thereafter maintain, the rear boundary fence adjoining lot 4.

The alleged water problem

Though not the subject of the application, the owner of lot 3 obviously has an issue with alleged water ponding at the rear of his lot, which on occasion had entered his lot causing damage. This owner had undertaken certain remedial work at the rear of his lot, and is now alleging that similar remedial work at the rear of lot 4, and undertaken by that owner, is causing water to again back up at the rear of his lot.

This aspect was not part of the application in my view, however it is obviously a cause of considerable dispute within the body corporate and in particular between the owners of lots 3 and 4. There were different views expressed on whether the problem had been resolved by the remedial work. The owner of lot 3 certainly believed that it had not been, however others believed that it had.

I expressed the view that this is a body corporate issue and should have always been so, rather than that of individual owners. The fact that individual owners have individually tackled the issue has in my view contributed to the dispute, as one does not believe that the other has dealt with the issue effectively. However, it is too late to resolve this when now, at least in the opinion of some, the issue has been resolved.

I indicated that any future occurrence of this issue should be addressed by the body corporate. Individual owners should not undertake any further action or work regarding the issue. Briefly, if there is a recurrence of the water issue or problem, the body corporate should investigate, or engage suitable experts to investigate and should act in accordance with the advice of those experts to resolve the situation. I have nothing further to add to this, and no specific order will be made regarding this aspect.