Heritage Park [2005] QBCCMCmr 456 (15 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0294-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20153
Name of Scheme:	Heritage Park
Address of Scheme:	Tristen Court BENOWA

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

Ean John Wilson, the owner of lot 2

I hereby order that within three (3) months of the date of this order, the owner of lot 3, Patricia Catherine Hampton shall remove all bolts affixed to or inserted into the wall of the adjoining lot 2, and thereafter reinstate the wall to its former condition if reinstatement or repair is required. I further order that, subject to the above order, the following orders sought by Ean John Wilson, the owner of lot 2 including: 1. Removal of all structures (include fixed deck + planter boxes + equipment enclosure at least) within 900mm of northern boundary wall of lot 2 to allow access, aeration and maintenance. 2. Repair of pool leak to reduce salt ingress and lawn destruction. 3. Cessation of watering and hosing that causes water table to be 220mm higher than normal on lots 1 and 2. 4. Repair wall if damaged at cost of owner of lot 3. are dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0294-2005

"Heritage Park" CTS 20153

The applicant, Ean John Wilson, the owner of lot 2 has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

1. Removal of all structures (include fixed deck + planter boxes + equipment enclosure at least) within 900mm of northern boundary wall of lot 2 to allow access, aeration and maintenance.
2. Repair of pool leak to reduce salt ingress and lawn destruction.
3. Cessation of watering and hosing that causes water table to be 220mm higher than normal on lots 1 and 2.
4. Repair wall if damaged at cost of owner of lot 3.

(Note – I have numbered the orders requested by the applicant for ease of reference purposes).

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 40 lots recorded under a group title plan of subdivision (now a standard format plan of subdivision. It is relevant to note that the plan of subdivision was registered in January 1992. The regulation module applying to the scheme is the standard module.

In his grounds, the applicant states:

This dispute is long running. The owner / occupier of lot 3 has refused to remove the structures attached / built on my wall. The water / salt problem has reduced the present and future value of my property and inconvenienced my tenants considerably over the years.

I have a legal right to access my wall for inspection, aeration and maintenance and pest inspection / eradication.

The applicant has attached some photos essentially showing the boundary wall of his lot and the structures on the adjoining lot of which he complains.

Given that the above two paragraph statement is the totality of the applicant’s written grounds provided specifically in support of the orders which he is seeking, I suggest to the applicant that his application is poorly substantiated or evidenced.

The applicant has named the owner of the adjoining lot 3, Patricia Katherine Hampton, as the respondent to his application. This office sought submissions from Ms Hampton, and Ms Hampton has responded in a detailed manner. The applicant has obtained a copy of Ms Hampton’s submission and has replied to that submission. Suffice to say, Ms Hampton concludes:

I strongly deny that my actions and the improvements to my property are in any way detrimentally impacting on the applicants use and enjoyment of his property and would submit the applicant’s application should be refused in all respects.

Removal of all structures (include fixed deck + planter boxes + equipment enclosure at least) within 900mm of northern boundary wall of lot 2 to allow access, aeration and maintenance.

The applicant states that he requires this for "access, aeration + maintenance". He claims a legal right of access for these purposes. Unfortunately, the applicant fails to identify the basis of this "legal right" such that I might consider its validity. To confirm though, the applicant is claiming a "legal right" to access Ms Hampton’s lot for certain purposes connected with the wall of his lot which is located immediately on the boundary of his lot 2.

Owners and the body corporate in community title schemes have the benefit and burden of certain statutory easements for certain specified purposes. These statutory easements were once included in the Act, but recently were removed and included in the Land Title Act 1994. The statutory easement I suggest is most applicable to the applicant’s requirements is:

115S Easement for maintenance of building close to boundary
(1) If a building is on the boundary of a lot ("lot A") or so close to the boundary of lot A that maintenance or replacement of the building is not able to be carried out without entering another lot ("lot B") or common property, an easement exists in favour of lot A and against lot B or the
common property.
(2) The easement entitles the owner of lot A to enter lot B or common property to carry out the maintenance or replacement.

However, section 115M of the Land Titles Act 1994 relevantly provides:

115M Application of div 5
(1) This division provides for easements for lots included in, and common property for, a community titles scheme.
(2) However, subject to subsection (3), this division applies to the scheme only if the lots included in the scheme are lots on--
(a) a building format plan of subdivision; or
(b) a volumetric format plan of subdivision; or
(c) a standard format plan of subdivision registered under this Act on or after 13 July 1997.
(3) If a lot is a standard format lot in a community titles scheme intended to be developed progressively and there are no buildings on the lot, this division applies for the lot.
(4) This division has effect for the scheme subject to the provisions of an easement established under another part of this Act. (my highlighting for emphasis)

Under the provisions of section 115M, the easement rights contained in the division, including section 115S, do not apply to the applicant, or the applicant’s lot, since the scheme was created by registration of a standard format plan prior to the relevant date. Consequently, I conclude that the applicant has no "legal right to access" at least under the relevant legislation. The order sought by
the applicant in this regard is therefore dismissed. I consider the applicant should obtain his own legal advice on this aspect. It may be that at common law, the applicant might be able to establish a legal right consistent with rights of neighbours in an ordinary suburban setting. However, this is for the applicant to pursue, outside the context of this jurisdiction.

There is one aspect however I will consider relative to the applicant’s wall. Ms Hampton’s submission relevantly states:

The decking is attached to the common property boundary wall by six bolts without causing damage to the wall.
Under the decking is accessible for inspections or repairs.
It is a common practice within the complex for residents to insert bolts into the common property walls for the purpose of hanging planters or attaching other structures.

I consider the common property wall Ms Hampton is referring to does not exist. There is no common property in a boundary between two lots. Moreover, in the case of a standard format plan of subdivision, the boundary of the lot is in fact the outer edge or face of the structure, in this case the wall located on the applicant’s boundary line. In the circumstances, this wall is not common property; rather it is part of the applicant’s lot. I conclude Ms Hampton has no right to affix any structure to the applicant’s wall, unless and until Ms Hampton has obtained the applicant’s permission. In these circumstances, I intend to order that within three (3) months of the date of this order, that the owner of lot 3, Patricia Catherine Hampton shall remove, and thereafter reinstate if reinstatement or repair is required, all bolts affixed to or inserted into the wall of the adjoining lot 2. However this order does not require the removal of any item directly or immediately adjoining the wall. The outer face of the wall is the boundary of the applicant’s lot 2 and similarly the boundary of the respondent’s lot 3 so Ms Hampton is entitled to have some fixture immediately adjacent to but simply not affixed to the applicant’s boundary wall. That it, the fixture can be immediately adjacent to (even touching the wall I suggest) however it cannot be bolted to or otherwise affixed to the wall.

Repair of pool leak to reduce salt ingress and lawn destruction.
Cessation of watering and hosing that causes water table to be 220mm higher than normal on lots 1 and 2.

The applicant has provided no evidence in support of either of these two allegations. An applicant does have an obligation to support or substantiate their allegations with information or evidence on which a reasonable belief of the accuracy of the allegation might be foundered.

Ms Hampton has denied both allegations stating variously:

... I had repair work carried out on the pool and the pool was subsequently pressure tested with the results confirming nil leaks. ...
... I do not over water or water excessively and under no circumstances could the amount of watering done by me give rise to any form of run off into the applicant’s property and under no circumstances could it have caused to water table to rise by 220mm or at all.

Ms Hampton suggests that movement in the water table may be due to either:

1. Movement in the underground soil; or
2. A leak in the underground water pipes.

Given the applicant’s failure to substantiate his allegations, these two orders sought by him are dismissed.

Repair wall if damaged at cost of owner of lot 3.

I have dealt with this aspect in the course of the order made, and do not propose to consider it further.