Kakadu [2006] QBCCMCmr 154 (28 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0103-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3298
Name of Scheme:	Kakadu
Address of Scheme:	16 Sapphire Drive NAMBOUR QLD 4560

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

Barbara Forster, the Owner of lot 2

I hereby order that the body corporate is deemed to have authorised the owner of Lot 1 to construct a 400 millimetre treated timber retaining wall (i.e. 2 rows of sleepers) and triangular garden bed on common property adjacent to Lot 1 under section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997, and the owner of Lot 1 must maintain the retaining wall and triangular garden bed in good condition. I further order that with the exception of steps to access the subject area, the owner of lot 1 shall not make any further improvements to the common property without the consent of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0103-2006

"Kakadu" CTS 3298

APPLICATION

The applicant is the owner of lot 2 and seeks both interim and final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act).

The Interim Orders sought by the applicant are for a stop work order to be issued and for any further work to be approved in writing by the body corporate.

The final order sought by the applicant is for unapproved work on common property to be removed.

JURISDICTION

The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme ( section 227(1)(b) 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 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)).

SCHEME DETAILS

Kakadu consists of 2 lots on a building format plan and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

BACKGROUND

The applicant claims that without consulting her, the owner of lot 1 has constructed a garden bed on common property and intends to create more garden edging with treated pine sleepers on common property. However, the applicant has not consented to this work.

SUBMISSIONS

The owner of lot 1 states that the garden bed was created as a safety measure as the area is prone to rainwater run off and in such conditions, became muddy and slippery. Secondly, the owner of lot 1 points out that edging consisting of treated timber sleepers was put in place to retain a soil embankment created when the block was cut into the hill. This soil was eroding and in time this would have impacted on the foundations of the timber paling fence located on the embankment. The owner of lot 1 states that it is impossible to communicate with the applicant as she does not answer the phone and does not return calls.


She further states that she is prepared to remove the edging, which she paid for herself but would want the body corporate to replace the edging (at a cost of approximately $650) as it is necessary to ensure the safety of her tenants who include two small children.

In reply , the applicant advises as follows:

• She does not believe there is any need to access the subject as an open "storm water drain" runs along the end of this area;
• There is an alternate means of accessing the rear area housing the clothes line and accordingly it is not necessary to cross the drain, over which the owner of lot 1 has places some short planks to form "a crude bridge" to which the applicant also objects;
• the applicant has concerns as to the materials used and the credentials of the person who did the work;
• the applicant is concerned that she will have to contribute to the upkeep of the garden bed;
• no work should be done on common property without the written agreement of both lot owners and all such work should be done by independent contractors;

Improvement to common property are governed by sections 113 and 114 of the Standard Module.

Sections 113 of the Standard Module provides:

113 Improvements to common property by body corporate Act, s 159
(1) The body corporate may make improvements to the common property if
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount (the "improvements limit") worked out by multiplying the number of lots included in the scheme by $300; or
(b) the improvements are authorised by special resolution; or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.
(2) For subsection (1)(a), if a series of associated improvements forms a single project, the cost of any 1 of the improvements is taken to be more than the improvements limit if the cost of the project, as a whole, is more than the improvements limit.

Under section 113, there are various levels of authorisation required for proposals categorised as improvements. Specifically:

1. Improvements up to $125 per lot for each lot in the scheme might be approved by the committee (section 103) or referred to the body corporate in general meeting for approval by ordinary resolution;

2. Improvements with a cost between $125 and $300 per lot for each lot in the scheme must be approved by the body corporate in general meeting by ordinary resolution (see section 113( 1) of the standard module);

3. Improvements with a cost exceeding the "improvements limit" of $300 per lot for each lot in the scheme must be approved by the body corporate in general meeting by special resolution ( see section 113(2) of the standard module);

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 section--
(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.

DETERMINATION

The Body Corporate and Community Management Act 1997 establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes". However, it is recognised that it is not always possible for owners to achieve consensus. Accordingly I have sought to make an order that is just and equitable.

Section 35 of the Act provides that owners own the common property as tenants in common. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property reasonably and for the benefit of lot owners. Each owner’s right to use the common property is governed by the Act, the Standard Module and the body corporate by-laws. For instance, section 167 of the Act provides that the occupier of a lot must not use, or permit the use of common property in a way that causes a nuisance or hazard or interferes unreasonably with the use or enjoyment of another lot or a person’s lawful use or enjoyment of the common property. Section 114 of the Standard Module makes provision for the owner of a lot making an improvement to common property for the benefit of the owner’s lot.

The area in question is an area of common property to the side of lot 1, and from an examination of the plans and photographs, it is evident that the area in question is a relatively small area between lot 1 and the boundary fence. This area is shaded, and it would appear, is subject to rainwater run-off from neighbouring properties. The area is devoid of ground cover and obviously becomes muddy in wet weather. Accordingly, this area is of limited use to either lot 1 or lot 2.

There is a small triangular garden bed along the side of the house and on the other side of the area there is a 400mm high treated pine retaining wall (i.e. 2 rows of sleepers) against an embankment created when the block was cut into the hill. The materials from which the retaining wall and garden edges have been constructed are widely used in domestic and commercial landscaping projects and from my observations of the photographs provided by the parties, it is evident that these have been constructed in a workmanlike manner.

The applicant is correct in asserting that as this scheme is registered on a building unit plan, all of the land surrounding the building is common property. The applicant is therefore also correct in asserting that under the legislation the owner of lot 1 required body corporate authorisation in accordance with section 114 of the Standard Module which 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 section
(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.

As an adjudicator, it is my responsibility to make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme. In my view, the construction on the common property constitutes an improvement to common property regulated by section 114 of the Standard Module. However the question then arises as to whether I should order that the garden bed and retaining wall be removed. In the normal course of events, the correct procedure would be for a lot owner to put a proposal regarding construction of improvements to the body corporate for consideration. Should it be the case that a "stalemate" is reached, an adjudicator is empowered to decide on the matter by making one of the following orders:

• an order rejecting the proposal;
• an order agreeing to the proposal; or
• an order ratifying the proposal on stated terms.

I consider that notwithstanding the non-compliance with the requirements of section 114 of the Standard Module, there is little point in ordering the removal of the sleeper wall and garden edging. From my observations of the photographs it is evident that the purpose of these improvements is to keep the area beside lot 1 level and to give the area a more tidy appearance.

I also note that the owner of lot 1 is not seeking a contribution from lot 2 toward the cost of the improvements.

While the applicant states that the materials used are different from those used elsewhere on the common property, I note that a variety of materials have been used previously for retaining purposes. For example, on one side of the property a large retaining wall is constructed from masonry blocks while the retaining wall adjacent to lot 2 consists of rocks. I also note that the subject area is relatively secluded and not readily observable from outside the scheme land.

Having regard to all of the circumstances of the case and the relatively obscure location of the improvements, I have ordered that the body corporate is deemed to have consented to the construction pursuant to section 114 of the Standard Module. Given the body corporate is deemed to have approved the construction of the improvements, the improvements must be maintained in good condition by the owner of Lot 1.

However, I also propose to order that with the exception of a steps to access the subject area, the owner of lot 1 shall not make any further improvements without the consent of the body corporate.