Pacific Lagoon Villas [2005] QBCCMCmr 494 (1 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0319-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20419
Name of Scheme:	Pacific Lagoon Villas
Address of Scheme:	Helensvale Road HELENSVALE QLD 4212

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

SDP Superannuation Fund, the Owner(s) of lot 26:

I hereby order that the application seeking the removal of the obstruction of the natural waterway built by owner of Unit 30 along fence, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0319-2005

"Pacific Lagoon Villas" CTS 20419

The Applicant seeks the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Removal of obstruction of natural waterway built by owner of Unit 30 along fence."

Jurisdiction:

This is a dispute between the owner of Lot 26 (SDP Superannuation Fund) (the Applicants) and Hans and Ingrid Roubicek co-owners of Lot 22 (the Respondents), regarding the construction of a garden bed along part of the boundary between their Lot and the Applicant’s Lot. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

Application and Submissions:

Under section 243 of the Act, a copy of the application was provided to the Respondents with an invitation to them and all owners within the Scheme to respond to the matters of dispute raised in the application.

The Applicant’s allegations are that the Respondents built up their garden bed some 2 years ago by 12 to 18 inches in places. As a result of this when it rains the water is unable to escape over this area and threatens to encroach into the Applicant’s Lot. The Applicant alleges all attempts made to have the Respondents address the matter have been ineffective.

The Respondents allege that the garden bed they installed was installed some 4 years ago. They allege further that despite this the Applicant has not raised the matter with them until recently. The Respondents make the observation that there are various other lots bordering the Applicant’s Lot which could impact on the drainage of the Applicant’s Lot however no complaint has been made about them. Finally, the Respondents advise that each Lot owner appears to have installed drainage works themselves to protect their own lots.

I also note that the Respondents have provided photographs to support their comments.

Determination:

The "Pacific Lagoon Villas" is a community titles scheme that is subject to the provisions of the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). It is registered as a group title plan of subdivision.

Being registered as a group title plan of subdivision the boundary of each lot is determined by reference to marks placed on the ground as opposed to structural elements of a scheme building as is the case in a scheme registered as a group title plans. As such the boundary of each lot is the dividing fence between the lots.

I have considered all of the materials filed with the application and the submissions filed in reply. I am not persuaded by the Applicant’s materials that the garden bed in question is the height as alleged. I prefer the information as provided by the Respondents who have submitted photographs to support their position. I am also not persuaded by the Applicant’s allegation that the garden bed was installed two years ago and since then a drainage problem has existed. I prefer the evidence of the Applicants that the garden bed was planted 4 years ago and no problem arose until recently.

The Applicant believes there is a drainage issue. I remain unsatisfied that such a problem exists.

As mentioned above being a group title plan of subdivision the obligation to maintain a lot falls onto each lot owner. It is apparent that each lot owner in the scheme has adopted the approach of dealing with their own drainage issues themselves. This approach appears to be the most reasonable way of dealing with the situation that presents here.

Order:

I will decline to make the orders as sought by the Applicant on the basis that there is insufficient evidence to substantiate the allegations. I prefer the evidence of the Respondents. I also accept that the method of dealing with drainage issue within the Scheme is one for each lot owner themselves. The Applicant believes a drainage problem exists. I remain unsatisfied that such a problem exists. It is a matter for the Applicant to address in my view.

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