Kawana Island Villas [2005] QBCCMCmr 648 (21 November 2005)

Number of Scheme:	30275
Name of Scheme:	Kawana Island Villas
Address of Scheme:	2 Grand Parade Parrearra Qld 4575

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

I hereby order that the resolution purporting to authorise the body corporate committee to paint the wooden parts of fences between the common property and individual lots is invalid. This is on the basis that each individual owner has joint responsibility with the body corporate for those fences and the consent of each individual lot owner in necessary for any alterations to those fences.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0475-2005

"Kawana Island Villas" CTS 30275

Kawana Island Villas Community Titles Scheme (Kawana Island Villas) is a 165 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building format plan. Some photographs and a copy of the plan indicate that the scheme primarily consists of duplexes surrounded by private yards. Large fences surround part of these private yards, approximately on the boundaries of those parts of the lot and the common property.

This application is by Robert and Mary Williams, owners of lot 65 (applicants) seeking orders against the body corporate (respondent). Part of the fence around the applicants’ lot is made up of stained wood slats. The applicants wish to have wood stain regularly applied to these slats. However, the majority of owners have voted to authorise the committee to paint the slats instead. This is presumably because it will be much more economical to occasionally repaint these slats than to regularly apply wood stain.

The applicants say that, at the most, the body corporate is responsible for maintaining the external surface of the fence but that owners are responsible for staining the inside of their own fences. The applicants also say that the body corporate can only maintain the fences in their existing state and cannot change the fences without the consent of the owners.

The applicants therefore seek orders to:

Maintenance responsibilities in a community titles scheme are generally provided for as follows:

Low rise community titles schemes containing numerous separate lots and buildings were traditionally subdivided under a standard format plan (previously known as a group titles plan). The boundaries of each lot under a standard format plan are typically determined by survey pegs (Land Title Act, 48B).

Under a standard format plan, each townhouse is normally within the lot boundaries and the owner is required to maintain their own townhouse. However, townhouses will commonly have a common wall along one of the lot boundaries. In that case each adjacent owner will have joint responsibilities to maintain that wall. Further, any utility infrastructure contained in that common wall or utility infrastructure that serves more than one lot will be common property that must generally be maintained by the body corporate (Act 20, Standard Module 109).

High rise community titles schemes containing a single building with multiple units were traditionally subdivided under a building format plan (previously known as a building units plan). The lot boundaries under a building format plan are generally defined by the centre of the wall, floor and ceiling of each lot (Land Title Act, 49C). Again, any utility infrastructure that is contained in boundary walls or is for more than lot constitutes common property that must generally be maintained by the body corporate (Act 20, Standard Module 109). However, in addition, the body corporate is responsible for maintaining the foundations, roof, and essential supporting framework in a structurally sound condition (Standard Module, 109(2)(b)). The body corporate must also maintain all external doors, windows and railings that are situated in a boundary wall (Standard Module, 109(2)(a)).

For either a standard format plan or building format plan, exceptions to the general rule that the body corporate should maintain common property include:

Provisions of the Dividing Fences Act 1953 apply to fences between lots. Ordinarily the body corporate will be responsible for a fence that forms the perimeter of the scheme, this responsibility being shared with any neighbouring owner outside the scheme. However, adjacent lot owners within the scheme will ordinarily share responsibility for fences between their respective lots. Further, if the fence is instead between the lot and common property then the lot owner will ordinarily share responsibility for the fence with the body corporate, as though the body corporate was the owner of the common property (Act, 311).

There is no specific requirement that each adjoining owner, for example, paint their own side of the fence but this may be agreed between adjoining owners or may be the result of a specific order.

Specifically regarding fences:

Kawana Island Villas is not typical of either separate duplexes under a standard format plan or a building that has been divided into separate units under a building format plan. Instead, it is predominately comprised of duplexes under a building format plan with each building surrounded by a private yard delineated by survey pegs. The fences in question are either on or approximately on the boundaries of these private yards, which also constitute the boundaries of the lot.
This raises questions about the application of the provision to the effect that, under a building format plan, the body corporate must doors, windows and associated fittings situated in a boundary wall separating a lot from common property (Standard Module, 109(2)). In particular, questions are raised about whether this provision applies to the staining of wooden slats forming part of the gates or wall around the villas.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Under a building format plan any fences are normally solely on common property and the Dividing Fences Act 1953 only applies between the body corporate and any neighbouring owner outside scheme land regarding fences around the outside of the scheme land. However, for Kawana Island Villas, the private yards surrounding the buildings form part of the lot and fences are approximately on the boundaries of the lot and common property. Each lot owner will therefore be an adjoining owner with the body corporate for the purposes of the Dividing Fences Act 1953 (Body Corporate and Community Management Act, 311).

An adjudicator has exclusive jurisdiction to make an order that is just and equitable to resolve a dispute between an owner and the body corporate about the exercise of rights or powers, or performance of duties, under the Body Corporate and Community Management Act or the community management statement (Act 228, 229, 276). This dispute is clearly within this exclusive jurisdiction to the extent that it concerns a decision of the body corporate to paint wooden parts of fences rather than to regularly apply wood stain. It involves consideration of the provisions of the Body Corporate and Community Management Act regarding maintenance and improvements as well as consideration of the by-laws under the community management statement. I have therefore decided it is appropriate for me to determine this dispute, even though it may also require consideration of some of the provisions of the Dividing Fences Act 1953 which are normally considered in disputes before a Magistrates Court or Small Claims Tribunal.^[1]

Under the Body Corporate and Community Management Act, owners are generally responsible for maintenance of their own lot and the body corporate is generally responsible for maintenance of common property (Standard Module 109, 120). Based on the survey plans provided, parts of the fences are wholly within the individual lot boundary but at least parts of the fence have the face of the wall on the boundary line or on common property. The boundary is formed by survey pegs rather than a line along the centre of the fence so it is not possible to clearly say that the body corporate is responsible for the exterior surface of the fence and the individual owner is responsible for the interior surface. Being a structure that effectively forms a boundary between a lot and common property that is partially on the lot and partially on common property I conclude that maintenance responsibilities need to be jointly shared by the body corporate and each lot owner of land upon which the fence is partially situated.

I note further in respect of building and repairing the fences that the body corporate and each individual owner are adjoining owners for the purpose of the Dividing Fences Act 1953. The definition of "dividing fence" specifically provides a fence is a dividing fence "whether the fence is on the line of or, in an appropriate case, on a line on the common boundary of the adjoining lands or on a line other than the line of or a line on the common boundary". The general rule is that adjoining owners will equally share the responsibility for the building or repair of a dividing fence, although there are some exceptions to this. These exceptions include cases where an owner has been excused from contributing to a fence or wall built for another purpose such as retaining soil^[2] or where the court has said contributions can be apportioned where a fence serves a dual purpose.^[3] For example, rather than building a dividing fence that is typical of the area, a person with a swimming pool may require a more expensive fence that also meets pool safety requirements. The adjoining owner may then only be required to contribute half the cost of a typical dividing fence rather than half the cost of the more expensive pool fence.

Specific provision concerning "boundary walls" under a building format plan

The last question that needs to be decided is the potential application of a specific provision to the effect that, under a building format plan, the body corporate must maintain in good condition any doors, windows and associated fittings situated in "a boundary wall separating a lot from common property" (Standard Module, 109).

In my view, fences are not "a boundary wall" for the purposes of this provision. I note that a "wall" can be a type of fence but that not every fence could be described as a "wall". It seems to me that the provision requiring the body corporate to maintain railings and doors situated in boundary walls was intended to cover the typical arrangement under a building format plan where a single building is divided into a number of separate lots and each lot has similar doors, railings and windows that form part of a common building and require maintenance in a similar manner.

Kawana Island Villas comprises separate buildings that are located within their respective lots and any fences on the lot boundaries would appear to be outside the contemplation of a provision requiring the body corporate to maintain railings, doors and windows that are situated in boundary walls of lots under a building format plan. Rather, it seems that the Registrar of Titles Directions for the Preparation of Plans made pursuant to the Land Title Act 1994 have changed to allow for the registration of different types of subdivision without corresponding changes to the Body Corporate and Community Management Act 1997.

The consequence of joint responsibility for maintenance is that each respective lot owner must form an agreement with the body corporate regarding the maintenance, repair, and any alterations to their respective fences. The Dividing Fences Act 1953 operates subject to any agreement.

I note that the submission by the committee to the effect that a motion passed by the body corporate amounts to permission of each individual lot owner is incorrect. A motion can amount to agreement by the body corporate. However, each individual lot owner would need to provide their individual consent before an agreement can be formed between the body corporate and that individual lot owner.

The substance of this application is that a number of owners want parts of some fences that are protected by wood stain to be painted instead, presumably to avoid the need for regular re-staining of the wood.

The legal position is that the body corporate would need to authorise the painting and each owner of an affected lot would also need to consent to the painting. The body corporate can authorise the painting by resolution. The proposed change is merely replacing wood stain with a similar colour paint which I would accept is a minor improvement that is not contrary to the by-laws. I therefore do not accept the submissions of the applicants to the effect that a special resolution is required to comprise the body corporate’s consent. The body corporate could consent by committee resolution or ordinary resolution^[4] and each lot owner could then provide their individual consent if they wanted any wooden parts of their fence to be painted rather than stained.

The difficulty faced by those who advocate paint rather than wood stain is that, without the agreement of both the body corporate and the lot owner, the default position under the legislation is that the fences should be maintained in their existing condition. This means that if some lot owners have fences with wood stain and those owners oppose painting then their fence must be left with wood stain. On the other hand, those who want to retain wood stain will have to contribute to the additional expenses of re-staining the wood to keep it in good condition.

If painting is to proceed, the body corporate should endeavour to come to an agreement with each lot owner who has wood stained fences. As discussed above, the Dividing Fences Act 1953 operates subject to any agreement of adjoining owners. One possible agreement is that the body corporate will allow owners with wood stained fences to have their fence painted with a specific paint but owners who want to retain the wood stain must arrange for regular wood stain to keep the fence in good condition. The body corporate can even arrange to give owners the option of using the services of one company that agrees to supply painting or wood staining services to owners at discounted rates (Standard Module, 119). Owners who took advantage of those services would need to pay for those services with other owners taking their own responsibility to ensure their fences were maintained in good condition (Standard Module 119, 120). The body corporate could even resolve to agree on a set amount it would pay to each owner per year as the body corporate’s contribution to keep the fences in good condition. However, the actual amount agreed may be practically irrelevant given that it appears all lots have fences and any amounts paid by the body corporate to owners will obviously have to come from contributions first paid by owners to the body corporate.

As the body corporate and the individual owners have a joint responsibility in respect of the fences, the consent of both parties is necessary for any changes to a particular fence. I will therefore make an order that the resolution purporting to authorise the body corporate committee to unilaterally paint the fences is invalid.

However, I do not accept that a special resolution is required to amend the by-laws before it could be agreed between the body corporate and an individual owner that wooden parts of the fences be painted rather than stained. The application is therefore otherwise dismissed.

I will not make any order specifically regarding maintenance, repair and alteration of the fences as it is preferable to consider any subsequent application on its merits and in its specific circumstances. However, some general comments may be of assistance to owners.

Firstly, while owners and the body corporate will have a joint responsibility in respect of the fences it would seem practicable for each owner to be solely responsible for the expenditure necessary to maintain and repair their individual fence. Individual owners could probably take action under the Dividing Fences Act 1953 to require the body corporate to contribute at least the cost of repair of a usual fence. However, on a just and equitable basis it would be expected that the body corporate would make a similar contribution to every owner. There would appear to be little advantage for owners to require the body corporate to make a contribution to them when the owners will themselves have to make the contribution to the body corporate necessary for the body corporate to make the contribution back to them.

Even if owners took on the financial responsibility for the fences themselves, the owners would still require the permission of the body corporate to make any changes to the fences. As discussed above, this permission by the body corporate could be in the form of a general resolution authorising owners to change their fences by painting the wood a certain colour instead of staining it (Standard Module 113, 114). To assist in implementing this, the body corporate could also resolve to engage a particular contractor to perform the painting for any individual owners who agree, the cost of this service to be recovered from those owners (Standard Module, 119). Similarly, owners may wish to vote to engage a particular contractor to perform the wood staining for any individual owners who agree, the cost of this service to be recovered from those owners (Standard Module, 119).

Other owners may want to maintain and repair the fences themselves rather than agree to accept the services of a contractor engaged by the body corporate. These owners should be aware that there is an obligation on owners to maintain their lot in good condition and that a failure to do so would entitle the body corporate to carry out the necessary work and recover the reasonable costs from the owner (Standard Module 120, 121). The body corporate could also carry out any repairs to the fence and seek to recover the cost of those repairs under the Dividing Fences Act 1953.

^[1] I note that this is a single dispute that requires consideration of both the Body Corporate and Community Management Act 1997 and the Dividing Fences Act 1953. The intention of sections 228, 229 and 276 of the Body Corporate and Community Management Act 1997 appear to be that disputes about provisions of the Body Corporate and Community Management Act 1997 be decided by an adjudicator. Following Greenhill Homes Pty Ltd and Ors v Domestic Building Tribunal and Ors, Supreme Court of Victoria, 4420 of 1998, Byrne J, 4 August 1998 (unreported BC 9804032), jurisdiction is not lost simply because provisions of another Act also need to be considered. The present dispute is a single justiciable controversy as referred to in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 163 ALR 270 and could not be easily separated into matters determinable in different jurisdictions. Although any subsequent application seeking a contribution for repair or building of a fence under the Dividing Fences Act 1953 would appear to be severable and able to be dealt with pursuant to the Dividing Fences Act 1953 in an appropriate jurisdiction.
^[2] Gollan v Cranfield, Supreme Court of NSW Eq 4404 of 1982, Cohen J, 19 February 1985.
^[3] Jackson v Randall, Supreme Court of Queensland, [2000] 2 Qd R 31, Derrington J, 23 March 1999.
^[4] Submissions indicate that painting rather than staining would be with paint of a similar colour with contributions by owners being less than $300 per lot with painting being a minor improvement without a significantly different external appearance. On this basis, a committee resolution or ordinary resolution would be sufficient for the body corporate to authorise the change provided individual owners also gave their consent (Standard Module 113, 114).

1.	Invalidate the resolution that authorised the committee to have the wooden slats painted rather than stained;
2.	Direct the body corporate that its responsibility is limited to maintaining the external surfaces of the fences and that a special resolution is necessary to change the finishes.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kawana Island Villas [2005] QBCCMCmr 648 (21 November 2005)