Wood Croft [2005] QBCCMCmr 77 (10 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0082-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22388
Name of Scheme:	Wood Croft
Address of Scheme:	Dawn Parade Miami Qld 4220

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

Jeanette Lorraine Wood, the owner of lot 2

I hereby order that the application by Jeanette Lorraine Wood, the owner of lot 2, for an interim order that no further work proceed in respect of a fence alleged to have been constructed on common property by Matthew Kinnersley and Karen Ryan, the owners of lot 1, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0082-2005

"Wood Croft" CTS 22388

The applicant, Jeanette Lorraine Wood, the owner of lot 2 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

For the front brick fence built on common property to be removed.

The applicant has also sought an interim order, quote:

That no further work to proceed.

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 2 lots recorded under a group title plan (now a standard format plan). The regulation module applying to the scheme is the standard module. The respondents to this application are Matthew Kinnersley and Karen Ryan, the owners of lot 1 (the respondents).

In the grounds, the applicant states:

That after repeated requests to the owner of unit no. 1 ... both by telephone and in writing not to erect the fence he as done so. I require the fence to be removed and the lawns to be reinstated to their original condition. ...

The applicant has sought both an interim order that no further work proceed, and a final order for the "front brick fence built on common property to be removed". The applicant’s grounds are limited, and fail to indicate what further work she anticipates might be undertaken by the respondents. Further the grounds fail to indicate the nature or style of the construction alleged to have been undertaken, although 2 photographs have been included. The photographs, dated "28-01-05" show a partially constructed red besser block type fence, with piers and inter-connecting sections. There is correspondence provided by the applicant from "Miami Beach Realty" to the respondents, dated 15 December 2004 stating clearly that the applicant, as owner of lot 2, does not "consent to fencing any part of the common boundary on the said property". It is unclear what further work might be undertaken although it appears logical that some form of fencing material might be added to the currently open inter-connecting sections.

The location of the fence appears to be on the boundary line of the parcel with the footpath. The plan for the scheme shows the configuration of the lots. The respondents’ lot 1 is at the front north western portion of the parcel facing Dawn Parade. However, between the boundary of lot 1 and the council footpath or verge, there is an area of common property. The plan shows this area to be 5.99 metres wide. The applicant’s photos suggest that the fence in question has been constructed on common property of the parcel.

In the circumstances, I am not prepared to make the interim order as sought. This is so for two reasons. Firstly, this order is being made without reference to the respondents so as to avoid unnecessary delay and duplication in first seeking submissions on the interim order before then again seeking submissions in respect of the final application. However, given that I have not sought submissions from the respondents, I am very reluctant to order in terms as sought. This might be considered to constitute a denial of natural justice.

The second reason however is a practical one. It is clear that the fence has for the most part been constructed. The interim order sought would only prevent completion of the construction. Given this, I see little benefit if any in an interim order as sought by the applicant. However, the respondents should be under no illusions that the reluctance on my part to make the interim order as sought might reflect my thinking in respect of the final order as requested; namely the removal of the fence.

At this stage I will briefly outline what is the position with regard to improvements to common property. Section 114 of the standard module provides –

114 Improvements to common property by lot owner--Act, s 159
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section42--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

It appears from the evidence of the applicant only that the fence has been constructed on common property of the parcel. Under section 114 an improvement of this nature requires that the owner in question seek authorisation of the body corporate by way of a special resolution. The applicant’s grounds would suggest that this has not occurred. If this is so, then the fence is unauthorised. Given this, and subject to the response to this application by the respondents, an order for the removal of the fence and the reinstatement of the common property is a distinct possibility. I suggest that the submission of the respondents which this office will now seek should address all aspects of the fence construction, and in particular, its authorisation, and if not properly authorised, why I should not order that the fence be removed.