Paradise Green [2005] QBCCMCmr 70 (9 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0655-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21206
Name of Scheme:	Paradise Green
Address of Scheme:	31 Thrush Avenue PARADISE POINT QLD 4216

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

Mark James Hassell, the co-owner of lot 6

I hereby order that the application by Mark James Hassell, the co-owner of lot 6, for an order that he be given approval to proceed with a 1.8M timber fence to the back of his unit (Number 6) for privacy and security, is dismissed. I further order that the owners of lot 6, Mark James Hassell and Julia Dulcie Bonacchi shall be authorised to enclose the existing and proposed patio structures with latice or palings so as to provide security and privacy to this area or areas, in a like manner as undertaken in respect of lot 5, but nothing in this approval shall be interpreted as applying to any greater area of the applicants’ lot than that covered by the existing / proposed patios.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0655-2004

"Paradise Green" CTS 21206

The applicant, Mark James Hassell, the co-owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Approval to proceed with a 1.8M timber fence to the back of our unit (Number 6) for privacy and security as outlined in attached documentation.

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 12 lots registered in a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The applicant applied to the body corporate for authorisation to "erect a 1.8m high timber fence to the back of our property". The intention of the fence is "to provide the elderly tenant (my father-in-law) with some privacy and security". The applicant states that "the unit is so positioned that both the front and back of the unit are clearly visible to all occupiers as the side and back are bordered by a complex road ...". The applicant states that "this makes it difficult to entertain or simply to sit outside the unit in an area that provides privacy. There is also a need for some form of security to the rear entrance of the property as currently there is no secure area for the tenant to store a barbecue or have outdoor furniture in an area not visible to the passing traffic".

The applicant also sought from the body corporate approval for the erection of an additional (one already exists) patio at the rear of the lot. This was approved, subject to certain reasonable requirements. The position with the fence however is that the body corporate has approved a fence with a height of .9 metre but not 1.8 metres as sought.

The applicant’s grounds conclude:

All I am asking is that the right to erect a 1.8M timber fence that will provide security and privacy for my tenant. The same security and privacy that is enjoyed by many other tenants / owners in this complex.

This office sought submissions in respect of the application from the body corporate and all owners. Several submissions were received from owners, the majority of which oppose the application. The applicant has made a detailed reply to those submissions. The applicant’s material, both application and reply, includes photos which have assisted my deliberations.

I refuse to consider or determine this application on a micro level; that is, to consider each statement or argument of the applicant, then statements in submission in opposition to each point, and finally the applicant’s reply. My determination is based on a consideration of the totality of the evidence before me, all of which I have considered in making my determination. I intend to dismiss the application for approval or authorisation of the fence. However, I do intend to order that the applicant shall be entitled to enclose or screen the patio area or areas approved. My reasons for this are as follows:

• The body corporate has jurisdiction in this matter on the basis of by-law 17 which provides that a proprietor shall not without the consent in writing of the body corporate perform any works or erect any structure in, on or to his lot which will in any way alter the external appearance of the building.
• The applicant makes certain representations as to the location of his lot in relation to the scheme. Whilst these statements may be correct, I consider that the applicant purchased the lot in this configuration, and consequently was aware of the aspects of which he now complains. In my view, these considerations should not now override the rights of other owners.
• The applicant claims or asserts a right to privacy and security. However, as observed by another Adjudicator recently, "owners have no right not to be overseen". That is, there is no general or absolute right to privacy. As for security, it is for each owner / occupier to secure their lot and possessions. However, a fence is not the only means of securing possessions. In any event, I have dealt with the security issue by allowing the applicant the right to enclose or screen the patio area which is to be constructed. This will allow the applicant’s tenant to secure the items in the nature of those referred to (eg. BBQ, outdoor dining setting).
• It is clear that the fence structure proposed by the applicant, if erected, would be visually / aesthetically significant. The existing fence structure on the side of the applicant’s lot where the patio is to be constructed is already visible (see photos 1 and 2 accompanying the application and photo 4 in the applicant’s reply). I estimate this existing fence to be say 2 metres in length. What the applicant is proposing is a fence starting from the end of this fence in a similar direction for say 3 metres, then across the entire back yard of the applicant’s lot (possibly another 9-12 metres), before turning again and proceeding towards the applicant’s dwelling (possibly another 5-6 metres). Approximately 20 metres of fence, all at a height of 1.8 for its entire length. I conclude that the impact of the fence on surrounding properties, the fronts of which face this aspect, would be significant and detrimental. Whilst the applicant has referred, and provided photos of fences of similar height within the complex, I conclude that for the most part these fences are at the rear of properties, or between two adjoining lots. As well the photos provided by the applicant show several examples of fences of the approved height (approximately .9 metres). The photos evidence to me an openness of outlook of lots facing the roadways / common property of the scheme.
• I consider that there are other means for an owner, particularly in a group title plan of subdivision, to provide greater privacy. I am referring to the planting of trees and shrubs. There can be no prohibition on gardening within a lot in a group title plan, at least that I am aware. (In this regard I have not perused the by-laws for any regulation preventing or limiting this aspect).

In the circumstances, I am persuaded that the enclosure of the patio or outdoor for lot 5 as shown in the applicant’s photo numbered 6 with the original application is to be preferred to a fence enclosing the entire yard area of the applicant’s lot 6. Consequently, I intend to order that the applicant shall be entitled to enclose the proposed patio approved by the body corporate, and even the side adjoining the existing patio, thus providing a secure and somewhat private area, but that any additional fencing beyond this is to be at a maximum height of .9 metre, as previously approved by the body corporate. I have ordered accordingly.